Exhibit 4.1
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▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Seller)
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
(Master Servicer)
and
[TRUSTEE]
(Trustee)
POOLING AND SERVICING AGREEMENT
Dated as of ____________, 200__
$_____________
Mortgage Pass-Through Certificates
Series 200_-__
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions............................................................................. I-1
Section 1.02 Acts of Holders......................................................................... I-43
Section 1.03 Effect of Headings and Table of Contents................................................ I-44
Section 1.04 Benefits of Agreement................................................................... I-44
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF THE CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans............................................................ II-1
Section 2.02 Acceptance by Custodian................................................................. II-4
Section 2.03 Representations and Warranties of the Master Servicer and the Seller.................... II-6
Section 2.04 Execution and Delivery of Certificates.................................................. II-12
Section 2.05 Designation of Certificates; Designation of Startup Day and Latest
Possible Maturity Date................................................................. II-12
Section 2.06 Optional Substitution of Mortgage Loans................................................. II-12
ARTICLE III
ADMINISTRATION OF THE TRUST ESTATE; SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Certificate Account..................................................................... III-1
Section 3.02 Permitted Withdrawals from the Certificate Account...................................... III-2
Section 3.03 Advances by Master Servicer and Trustee................................................. III-3
Section 3.04 Custodian to Cooperate; Release of Owner Mortgage Loan Files and
Retained Mortgage Loan Files........................................................... III-5
Section 3.05 Reports to the Trustee; Annual Compliance Statements.................................... III-6
Section 3.06 Title, Management and Disposition of Any REO Mortgage Loan.............................. III-7
Section 3.07 Amendments to Servicing Agreements, Modification of Standard Provisions................. III-7
Section 3.08 Oversight of Servicing.................................................................. III-8
Section 3.09 Termination and Substitution of Servicing Agreements.................................... III-11
Section 3.10 Application of Net Liquidation Proceeds................................................. III-12
Section 3.11 Act Reports............................................................................. III-12
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ARTICLE IV
DISTRIBUTIONS IN RESPECT OF CERTIFICATES;
PAYMENTS TO CERTIFICATEHOLDERS;
STATEMENTS AND REPORTS
Section 4.01 Distributions........................................................................... IV-1
Section 4.02 Allocation of Realized Losses........................................................... IV-7
Section 4.03 Paying Agent............................................................................ IV-8
Section 4.04 Statements to Certificateholders; Reports to the Trustee and the Seller................. IV-9
Section 4.05 Reports to Mortgagors and the Internal Revenue Service.................................. IV-12
Section 4.06 Calculation of Amounts; Binding Effect of Interpretations and Actions
of Master Servicer..................................................................... IV-12
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates........................................................................ V-1
Section 5.02 Registration of Certificates............................................................ V-2
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates....................................... V-6
Section 5.04 Persons Deemed Owners................................................................... V-6
Section 5.05 Access to List of Certificateholders' Names and Addresses............................... V-6
Section 5.06 Maintenance of Office or Agency......................................................... V-7
Section 5.07 Definitive Certificates................................................................. V-7
Section 5.08 Notices to Clearing Agency.............................................................. V-8
ARTICLE VI
THE SELLER AND THE MASTER SERVICER
Section 6.01 Liability of the Seller and the Master Servicer......................................... VI-1
Section 6.02 Merger or Consolidation of the Seller or the Master Servicer............................ VI-1
Section 6.03 Limitation on Liability of the Seller, the Master Servicer and Others................... VI-1
Section 6.04 Resignation of the Master Servicer...................................................... VI-2
Section 6.05 Compensation to the Master Servicer..................................................... VI-2
Section 6.06 Assignment or Delegation of Duties by Master Servicer................................... VI-2
Section 6.07 Indemnification of Trustee and Seller by Master Servicer................................ VI-3
ARTICLE VII
DEFAULT
Section 7.01 Events of Default....................................................................... VII-1
Section 7.02 Other Remedies of Trustee............................................................... VII-2
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Section 7.03 Directions by Certificateholders and Duties of Trustee During Event of Default.......... VII-3
Section 7.04 Action upon Certain Failures of the Master Servicer and upon Event of Default........... VII-3
Section 7.05 Trustee to Act; Appointment of Successor................................................ VII-3
Section 7.06 Notification to Certificateholders...................................................... VII-5
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee....................................................................... VIII-1
Section 8.02 Certain Matters Affecting the Trustee................................................... VIII-2
Section 8.03 Trustee Not Required to Make Investigation.............................................. VIII-2
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans................................... VIII-3
Section 8.05 Trustee May Own Certificates............................................................ VIII-3
Section 8.06 The Master Servicer to Pay Fees and Expenses............................................ VIII-3
Section 8.07 Eligibility Requirements................................................................ VIII-3
Section 8.08 Resignation and Removal................................................................. VIII-4
Section 8.09 Successor............................................................................... VIII-5
Section 8.10 Merger or Consolidation................................................................. VIII-5
Section 8.11 Authenticating Agent.................................................................... VIII-5
Section 8.12 Separate Trustees and Co-Trustees....................................................... VIII-6
Section 8.13 Tax Matters; Compliance with REMIC Provisions........................................... VIII-8
Section 8.14 Monthly Advances........................................................................VIII-10
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Purchase by the Seller or Liquidation of All Mortgage Loans............ IX-1
Section 9.02 Additional Termination Requirements..................................................... IX-3
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment............................................................................... X-1
Section 10.02 Recordation of Agreement................................................................ X-2
Section 10.03 Limitation on Rights of Certificateholders.............................................. X-2
Section 10.04 Governing Law; Jurisdiction............................................................. X-3
Section 10.05 Notices................................................................................. X-3
Section 10.06 Severability of Provisions.............................................................. X-4
Section 10.07 Special Notices to Rating Agencies...................................................... X-4
Section 10.08 Covenant of Seller...................................................................... X-5
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Section 10.09 Recharacterization...................................................................... X-5
ARTICLE XI
TERMS FOR CERTIFICATES
Section 11.01 Class A Fixed Pass-Through Rate......................................................... XI-1
Section 11.02 Cut-Off Date............................................................................ XI-1
Section 11.03 Cut-Off Date Aggregate Principal Balance................................................ XI-1
Section 11.04 Original Class A Percentage............................................................. XI-1
Section 11.05 Original Principal Balances of the Classes of Class A Certificates...................... XI-1
Section 11.06 Original Class A Non-PO Principal Balance............................................... XI-1
Section 11.07 Original Subordinated Percentage........................................................ XI-1
Section 11.08 Original Class B Principal Balance...................................................... XI-1
Section 11.09 Original Principal Balances of the Classes of Class B Certificates...................... XI-2
Section 11.10 Original Class B-1 Fractional Interest.................................................. XI-2
Section 11.11 Original Class B-2 Fractional Interest.................................................. XI-2
Section 11.12 Original Class B-3 Fractional Interest.................................................. XI-2
Section 11.13 Original Class B-4 Fractional Interest.................................................. XI-2
Section 11.14 Original Class B-5 Fractional Interest.................................................. XI-2
Section 11.15 Original Class B-1 Percentage........................................................... XI-2
Section 11.16 Original Class B-2 Percentage........................................................... XI-2
Section 11.17 Original Class B-3 Percentage........................................................... XI-2
Section 11.18 Original Class B-4 Percentage........................................................... XI-2
Section 11.19 Original Class B-5 Percentage........................................................... XI-3
Section 11.20 Original Class B-6 Percentage........................................................... XI-3
Section 11.21 Closing Date............................................................................ XI-3
Section 11.22 Right to Purchase....................................................................... XI-3
Section 11.23 Wire Transfer Eligibility............................................................... XI-3
Section 11.24 Single Certificate...................................................................... XI-3
Section 11.25 Servicing Fee Rate...................................................................... XI-3
Section 11.26 Master Servicing Fee Rate............................................................... XI-3
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EXHIBITS
EXHIBIT A-1 - Form of Face of Class A-1 Certificate
EXHIBIT A-2 - Form of Face of Class A-2 Certificate
EXHIBIT A-3 - Form of Face of Class A-3 Certificate
EXHIBIT A-4 - Form of Face of Class A-4 Certificate
EXHIBIT A-PO - Form of Face of Class A-PO Certificate
EXHIBIT A-R - Form of Face of Class A-R Certificate
EXHIBIT B-1 - Form of Face of Class B-1 Certificate
EXHIBIT B-2 - Form of Face of Class B-2 Certificate
EXHIBIT B-3 - Form of Face of Class B-3 Certificate
EXHIBIT B-4 - Form of Face of Class B-4 Certificate
EXHIBIT B-5 - Form of Face of Class B-5 Certificate
EXHIBIT B-6 - Form of Face of Class B-6 Certificate
EXHIBIT C - Form of Reverse of Series 200_-__ Certificates
EXHIBIT D - Reserved
EXHIBIT E - Custodial Agreement
EXHIBIT F-1 - Schedule of Type 1 Mortgage Loans
EXHIBIT F-2 - Schedule of Other Servicer Mortgage Loans
EXHIBIT G - Request for Release
EXHIBIT H - Affidavit Pursuant to Section 860E(e)(4) of the Internal
Revenue Code of 1986, as amended, and for Non-ERISA
Investors
EXHIBIT I - Letter from Transferor of Residual Certificate
EXHIBIT J - Transferee's Letter (Class [B-4] [B-5] [B-6] Certificates)
EXHIBIT K - [Reserved]
EXHIBIT L - Servicing Agreements
EXHIBIT M - Form of Special Servicing Agreement
EXHIBIT N - Form of Initial Certification of the Custodian
EXHIBIT O - Form of Final Certification of the Custodian
SCHEDULE I - Applicable Unscheduled Principal Receipt Period
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This Pooling and Servicing Agreement, dated as of ____________,
200__ executed by ▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION, as Seller, ▇▇▇▇▇
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Master Servicer, and [TRUSTEE],
as Trustee.
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
Seller, the Master Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
Whenever used herein, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
Accepted Master Servicing Practices: Accepted Master Servicing
Practices shall consist of the customary and usual master servicing practices of
prudent master servicing institutions which service mortgage loans of the same
type as the Mortgage Loans in the jurisdictions in which the related Mortgaged
Properties are located, regardless of the date upon which the related Mortgage
Loans were originated.
Adjusted Pool Amount: With respect to any Distribution Date, the
Cut-Off Date Aggregate Principal Balance of the Mortgage Loans minus the sum of
(i) all amounts in respect of principal received in respect of the Mortgage
Loans (including, without limitation, amounts received as Monthly Payments,
Periodic Advances, Unscheduled Principal Receipts and Substitution Principal
Amounts) and distributed to Holders of the Certificates on such Distribution
Date and all prior Distribution Dates, (ii) the principal portion of all
Liquidated Loan Losses incurred on such Mortgage Loans for which the Liquidation
Proceeds were received from the Cut-Off Date through the end of the Applicable
Unscheduled Principal Receipt Period with respect to Full Unscheduled Principal
Receipts for such Distribution Date and (iii) the principal portion of all
Bankruptcy Losses (other than Debt Service Reductions) incurred on the Mortgage
Loans from the Cut-Off Date through the end of the period corresponding to the
Applicable Unscheduled Principal Receipt Period with respect to Full Unscheduled
Principal Receipts for such Distribution Date.
Adjusted Pool Amount (PO Portion): With respect to any
Distribution Date, the sum of the amounts, calculated as follows, with respect
to all Outstanding Mortgage Loans: the product of (i) the PO Fraction for each
such Mortgage Loan and (ii) the remainder of (A) the Cut-Off Date Principal
Balance of such Mortgage Loan minus (B) the sum of (x) all amounts in respect of
principal received in respect of such Mortgage Loan (including, without
limitation, amounts received as Monthly Payments, Periodic Advances, Unscheduled
Principal Receipts and Substitution Principal Amounts) and distributed to
Holders of the Certificates on such
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Distribution Date and all prior Distribution Dates, (y) the principal portion of
any Liquidated Loan Losses incurred on such Mortgage Loans for which Liquidation
Proceeds were received from the Cut-Off Date through the end of the Applicable
Unscheduled Principal Receipt Period with respect to Full Unscheduled Principal
Receipts for such Distribution Date and (z) the principal portion of all
Bankruptcy Losses (other than Debt Service Reductions) incurred on the Mortgage
Loans from the Cut-Off Date through the end of the period corresponding to the
Applicable Unscheduled Principal Receipt Period with respect to Full Unscheduled
Principal Receipts for such Distribution Date.
Adjusted Principal Balance: As to any Distribution Date and any
Class of Class B Certificates, the greater of (A) zero and (B) (i) the Principal
Balance of such Class with respect to such Distribution Date minus (ii) the
Adjustment Amount for such Distribution Date less the Principal Balances for any
Classes of Class B Certificates with higher numerical designations.
Adjustment Amount: For any Distribution Date, the difference
between (A) the sum of the Class A Principal Balance and the Class B Principal
Balance as of the related Determination Date and (B) the sum of (i) the sum of
the Class A Principal Balance and the Class B Principal Balance as of the
Determination Date succeeding such Distribution Date and (ii) the aggregate
amount that would have been distributed to all Classes as principal in
accordance with Section 4.01(a) for such Distribution Date without regard to the
provisos in the definitions of Class B-1 Optimal Principal Amount, Class B-2
Optimal Principal Amount, Class B-3 Optimal Principal Amount, Class B-4 Optimal
Principal Amount, Class B-5 Optimal Principal Amount and Class B-6 Optimal
Principal Amount.
Aggregate Class A Unpaid Interest Shortfall: As to any
Distribution Date, an amount equal to the sum of the Class A Unpaid Interest
Shortfalls for all the Classes of Class A Certificates.
Agreement: This Pooling and Servicing Agreement and all
amendments and supplements hereto.
Applicable Unscheduled Principal Receipt Period: With respect to
the Mortgage Loans serviced by each Servicer and each of Full Unscheduled
Principal Receipts and Partial Unscheduled Principal Receipts, the Unscheduled
Principal Receipt Period specified on Schedule I hereto, as amended from time to
time by the Master Servicer pursuant to Section 10.01(b) hereof.
Authenticating Agent: Any authenticating agent appointed by the
Trustee pursuant to Section 8.11. There shall initially be no Authenticating
Agent for the Certificates.
Available Master Servicer Compensation: With respect to any
Distribution Date, the sum of (a) the Master Servicing Fee for such Distribution
Date, (b) interest earned through the business day preceding the applicable
Distribution Date on any Prepayments in Full remitted to the Master Servicer and
(c) the aggregate amount of Month End Interest remitted by the Servicers to the
Master Servicer pursuant to the related Servicing Agreements.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
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Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a Bankruptcy Loss
shall not be deemed a Bankruptcy Loss hereunder so long as the applicable
Servicer has notified the Master Servicer and the Trustee in writing that such
Servicer is diligently pursuing any remedies that may exist in connection with
the representations and warranties made regarding the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to payments
due thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any premiums on any applicable primary hazard
insurance policy and any related escrow payments in respect of such Mortgage
Loan are being advanced on a current basis by such Servicer without giving
effect to any Debt Service Reduction.
Beneficial Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate, as reflected
on the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency), as the case may be.
Book-Entry Certificate: Any one of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class
A-PO Certificates, Class B-1 Certificates, Class B-2 Certificates and Class B-3
Certificates, beneficial ownership and transfers of which shall be evidenced by,
and made through, book entries by the Clearing Agency as described in Section
5.01(b).
Business Day: Any day other than (i) a Saturday or a Sunday, or
(ii) a legal holiday in the City of New York, State of Iowa, State of Maryland,
State of Minnesota or State of North Carolina or (iii) a day on which banking
institutions in the City of New York, or the State of Iowa, State of Maryland,
State of Minnesota or State of North Carolina are authorized or obligated by law
or executive order to be closed.
Certificate: Any one of the Class A Certificates or Class B
Certificates.
Certificate Account: The separate trust account established and
maintained by the Master Servicer in the name of the Master Servicer on behalf
of the Trustee pursuant to Section 3.01. The Certificate Account shall be an
Eligible Account.
Certificate Custodian: Initially, [TRUSTEE]; thereafter any
other Certificate Custodian acceptable to The Depository Trust Company and
selected by the Trustee.
Certificate Register and Certificate Registrar: Respectively,
the register maintained pursuant to and the registrar provided for in Section
5.02. The initial Certificate Registrar is the Trustee.
Certificateholder or Holder: The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of the taking of any action under Articles VII or VIII, any
Certificate registered in the name of the Master Servicer, a Servicer or any
affiliate thereof shall be deemed not to be outstanding and the Voting Interest
evidenced thereby shall not be taken into account in determining whether the
requisite percentage of Certificates necessary to effect any such action has
been obtained.
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Class: All certificates whose form is identical except for
variations in the Percentage Interest evidenced thereby.
Class A Certificate: Any one of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class
A-PO Certificates or Class A-R Certificate.
Class A Certificateholder: The registered holder of a Class A
Certificate.
Class A Distribution Amount: As to any Distribution Date and any
Class of Class A Certificates (other than the Class A-PO Certificates), the
amount distributable to such Class of Class A Certificates pursuant to
Paragraphs first, second and third clause (A) of Section 4.01(a). As to any
Distribution Date and the Class A-PO Certificates, the amount distributable to
the Class A-PO Certificates pursuant to Paragraphs third clause (B) and fourth
of Section 4.01(a) on such Distribution Date.
Class A Fixed Pass-Through Rate: As to any Distribution Date,
the rate per annum set forth in Section 11.01.
Class A Interest Accrual Amount: As to any Distribution Date,
the sum of the Interest Accrual Amounts for the Class A Certificates with
respect to such Distribution Date.
Class A Interest Percentage: As to any Distribution Date and any
Class of Class A Certificates, the percentage calculated by dividing the
Interest Accrual Amount of such Class (determined without regard to clause (ii)
of the definition thereof) by the Class A Interest Accrual Amount (determined
without regard to clause (ii) of the definition of each Interest Accrual
Amount).
Class A Interest Shortfall Amount: As to any Distribution Date
and any Class of Class A Certificates, any amount by which the Interest Accrual
Amount of such Class with respect to such Distribution Date exceeds the amount
distributed in respect of such Class on such Distribution Date pursuant to
Paragraph first of Section 4.01(a).
Class A Interest Shortfall Percentage: As to any Distribution
Date and any Class of Class A Certificates, the percentage calculated by
dividing the Class A Unpaid Interest Shortfall for such Class by the Aggregate
Class A Unpaid Interest Shortfall determined as of the Business Day preceding
the applicable Distribution Date.
Class A Loss Denominator: As to any Determination Date, an
amount equal to the Class A Non-PO Principal Balance.
Class A Loss Percentage: As to any Determination Date and any
Class of Class A Certificates (other than the Class A-PO Certificates) then
outstanding, the percentage calculated by dividing the Principal Balance of such
Class by the Class A Loss Denominator (determined without regard to any such
Principal Balance of any Class of Class A Certificates not then outstanding), in
each case determined as of the preceding Determination Date.
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Class A Non-PO Optimal Amount: As to any Distribution Date, the
sum for such Distribution Date of (i) the Class A Interest Accrual Amount, (ii)
the Aggregate Class A Unpaid Interest Shortfall and (iii) the Class A Non-PO
Optimal Principal Amount.
Class A Non-PO Optimal Principal Amount: As to any Distribution
Date, an amount equal to the sum of (I) the sum, as to each Outstanding Mortgage
Loan, of the product of (x) the Non-PO Fraction with respect to such Mortgage
Loan, and (y) the sum of:
(i) the Class A Percentage of the principal portion
of the Monthly Payment due on the Due Date occurring in the month of
such Distribution Date on such Mortgage Loan;
(ii) the Class A Prepayment Percentage of all
Unscheduled Principal Receipts (other than Recoveries) that were
received by a Servicer with respect to such Mortgage Loan during the
Applicable Unscheduled Principal Receipt Period relating to such
Distribution Date for each applicable type of Unscheduled Principal
Receipt;
(iii) the Class A Prepayment Percentage of the
Scheduled Principal Balance of such Mortgage Loan which, during the one
month period ending on the day preceding the Determination Date for such
Distribution Date, was repurchased by the Seller pursuant to Section
2.02 or 2.03; and
(iv) the Class A Percentage of the excess of the
unpaid principal balance of such Mortgage Loan substituted for a
Mortgage Loan during the one month period ending on the day preceding
the Determination Date for such Distribution Date over the unpaid
principal balance of such Mortgage Loan, less the amount allocable to
the principal portion of any unreimbursed Periodic Advances previously
made by the applicable Servicer, the Master Servicer or the Trustee in
respect of such Mortgage Loan; and
(II) the Class A Prepayment Percentage of the Non-PO Recovery
for such Distribution Date.
Class A Non-PO Principal Balance: As of any date, an amount
equal to the Class A Principal Balance less the Principal Balance of the Class
A-PO Certificates.
Class A Non-PO Principal Distribution Amount: As to any
Distribution Date, the aggregate amount distributed in respect of the Class A
Certificates pursuant to Paragraph third clause (A) of Section 4.01(a).
Class A Pass-Through Rate: As to the Class A-1, Class A-2, Class
A-3, Class A-4 and Class A-R Certificates, the Class A Fixed Pass-Through Rate.
The Class A-PO Certificates are not entitled to interest and have no Class A
Pass-Through Rate.
Class A Percentage: As to any Distribution Date occurring on or
prior to the Subordination Depletion Date, the lesser of (i) 100% and (ii) the
percentage obtained by dividing the Class A Non-PO Principal Balance (determined
as of the Determination Date preceding such Distribution Date) by the Pool
Balance (Non-PO Portion). As to any Distribution Date occurring
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subsequent to the Subordination Depletion Date, 100% or such lesser percentage
which will cause the Class A Non-PO Principal Balance to decline to zero
following the distribution made on such Distribution Date.
Class A Prepayment Percentage: As to any Distribution Date to
and including the Distribution Date in ________ 20__, 100%. As to any
Distribution Date subsequent to August 2008 to and including the Distribution
Date in ________ 20__, the Class A Percentage as of such Distribution Date plus
70% of the Subordinated Percentage as of such Distribution Date. As to any
Distribution Date subsequent to ________ 20__ to and including the Distribution
Date in ________ 20__, the Class A Percentage as of such Distribution Date plus
60% of the Subordinated Percentage as of such Distribution Date. As to any
Distribution Date subsequent to ________ 20__ to and including the Distribution
Date in ________ 20__, the Class A Percentage as of such Distribution Date plus
40% of the Subordinated Percentage as of such Distribution Date. As to any
Distribution Date subsequent to ________ 20__ to and including the Distribution
Date in ________ 20__, the Class A Percentage as of such Distribution Date plus
20% of the Subordinated Percentage as of such Distribution Date. As to any
Distribution Date subsequent to ________ 20__, the Class A Percentage as of such
Distribution Date. The foregoing is subject to the following: (i) if the
aggregate distribution to the Class A Certificates on any Distribution Date of
the Class A Prepayment Percentage provided above of Unscheduled Principal
Receipts distributable on such Distribution Date would reduce the Class A Non-PO
Principal Balance below zero, the Class A Prepayment Percentage for such
Distribution Date shall be the percentage necessary to bring the Class A Non-PO
Principal Balance to zero and thereafter the Class A Prepayment Percentage shall
be zero and (ii) if the Class A Percentage as of any Distribution Date is
greater than the Original Class A Percentage, the Class A Prepayment Percentage
for such Distribution Date shall be 100%. Notwithstanding the foregoing, with
respect to any Distribution Date on which the following criteria are not met,
the reduction of the Class A Prepayment Percentage described in the second
through sixth sentences of this definition of Class A Prepayment Percentage
shall not be applicable with respect to such Distribution Date. In such event,
the Class A Prepayment Percentage for such Distribution Date will be determined
in accordance with the applicable provision, as set forth in the first through
fifth sentences above, which was actually used to determine the Class A
Prepayment Percentage for the Distribution Date occurring in the August
preceding such Distribution Date (it being understood that for the purposes of
the determination of the Class A Prepayment Percentage for the current
Distribution Date, the current Class A Percentage and Subordinated Percentage
shall be utilized). No reduction in the Class A Prepayment Percentage referred
to in the second through sixth sentences hereof shall be applicable, with
respect to any Distribution Date if (a) the average outstanding principal
balance on such Distribution Date and for the preceding five Distribution Dates
on the Mortgage Loans that were delinquent 60 days or more (including for this
purpose any payments due with respect to Mortgage Loans in foreclosure and REO
Mortgage Loans) were greater than or equal to 50% of the current Class B
Principal Balance or (b) cumulative Realized Losses on the Mortgage Loans exceed
(1) 30% of the Original Class B Principal Balance if such Distribution Date
occurs between and including ________ 20__ and ________ 20__, (2) 35% of the
Original Class B Principal Balance if such Distribution Date occurs between and
including ________ 20__ and ________ 20__, (3) 40% of the Original Class B
Principal Balance if such Distribution Date occurs between and including
________ 20__ and ________ 20__, (4) 45% of the Original Class B Principal
Balance if such Distribution Date occurs between and including ________ 20__ and
________ 20__, and (5) 50% of the Original Class B Principal Balance, if
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such Distribution Date occurs during or after ________ 20__. With respect to any
Distribution Date on which the Class A Prepayment Percentage is reduced below
the Class A Prepayment Percentage for the prior Distribution Date, the Master
Servicer shall certify to the Trustee, based upon information provided by each
Servicer as to the Mortgage Loans serviced by it that the criteria set forth in
the preceding sentence are met.
Class A Principal Balance: As of any date, an amount equal to
the sum of the Principal Balances for the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-PO
Certificates and Class A-R Certificate.
Class A Unpaid Interest Shortfall: As to any Distribution Date
and any Class of Class A Certificates, the amount, if any, by which the
aggregate of the Class A Interest Shortfall Amounts for such Class for prior
Distribution Dates is in excess of the amounts distributed in respect of such
Class on prior Distribution Dates pursuant to Paragraph second of Section
4.01(a).
Class A-1 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-1 and Exhibit C hereto.
Class A-1 Certificateholder: The registered holder of a Class
A-1 Certificate.
Class A-2 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-2 and Exhibit C hereto.
Class A-2 Certificateholder: The registered holder of a Class
A-2 Certificate.
Class A-3 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-3 and Exhibit C hereto.
Class A-3 Certificateholder: The registered holder of a Class
A-3 Certificate.
Class A-3 Loss Amount: With respect to any Determination Date
after the Subordination Depletion Date, the amount, if any, by which the
Principal Balance of the Class A-3 Certificates would be reduced as a result of
the application of the third sentence of the definition of Principal Balance.
Class A-4 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-4 and Exhibit C hereto.
Class A-4 Certificateholder: The registered holder of a Class
A-4 Certificate.
Class A-4 Loss Allocation Amount: With respect to any
Determination Date after the Subordination Depletion Date the lesser of (a) the
Principal Balance of the Class A-4
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Certificates with respect to such Determination Date prior to any reduction for
the Class A-4 Loss Allocation Amount and (b) the Class A-3 Loss Amount.
Class A-PO Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit A-PO and Exhibit C hereto.
Class A-PO Certificateholder: The registered holder of a Class
A-PO Certificate.
Class A-PO Deferred Amount: For any Distribution Date prior to
the Subordination Depletion Date, the difference between (A) the sum of (x) the
amount by which the sum of the Class A-PO Optimal Principal Amounts for all
prior Distribution Dates exceeded the amounts distributed on the Class A-PO
Certificates on such prior Distribution Dates pursuant to Paragraph third clause
(B) of Section 4.01(a) and (y) the sum of the product for each Discount Mortgage
Loan which became a Liquidated Loan at any time on or prior to the last day of
the Applicable Unscheduled Principal Receipt Period for Full Unscheduled
Principal Receipts for the current Distribution Date of (a) the PO Fraction for
such Discount Mortgage Loan and (b) an amount equal to the principal portion of
Realized Losses (other than Bankruptcy Losses due to Debt Service Reductions)
incurred with respect to such Mortgage Loan and (B) the sum of (x) the sum of
the Class A-PO Recoveries for such Distribution Date and prior Distribution
Dates and (y) amounts distributed on the Class A-PO Certificates on prior
Distribution Dates pursuant to Paragraph fourth of Section 4.01(a). On and after
the Subordination Depletion Date, the Class A-PO Deferred Amount will be zero.
No interest will accrue on any Class A-PO Deferred Amount.
Class A-PO Optimal Principal Amount: As to any Distribution
Date, an amount equal to the sum of (I) the sum as to each Outstanding Mortgage
Loan, of the product of (x) the PO Fraction with respect to such Mortgage Loan
and (y) the sum of:
(i) the principal portion of the Monthly Payment due on the
Due Date occurring in the month of such Distribution Date on such
Mortgage Loan;
(ii) all Unscheduled Principal Receipts (other than
Recoveries) that were received by a Servicer with respect to such
Mortgage Loan during the Applicable Unscheduled Principal Receipt Period
relating to such Distribution Date for each applicable type of
Unscheduled Principal Receipt;
(iii) the Scheduled Principal Balance of each Mortgage Loan
which, during the one month period ending on the day preceding the
Determination Date for such Distribution Date, was repurchased by the
Seller pursuant to Section 2.02 or 2.03; and
(iv) the excess of the unpaid principal balance of such
Mortgage Loan substituted for a Mortgage Loan during the one month
period ending on the day preceding the Determination Date for such
Distribution Date over the unpaid principal balance of such Mortgage
Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable
Servicer, the Master Servicer or the Trustee in respect of such Mortgage
Loan; and
I-8
(II) the Class A-PO Recovery for such Distribution Date.
Class A-PO Recovery: As to any Distribution Date prior to the
Subordination Depletion Date, the lesser of (a) the Class A-PO Deferred Amount
for such Distribution Date (calculated without regard to the Class A-PO Recovery
for such Distribution Date) and (b) an amount equal to the sum as to each
Mortgage Loan as to which there has been a Recovery during the Applicable
Unscheduled Principal Receipt Period, of the product of (x) the PO Fraction with
respect to such Mortgage Loan and (y) the amount of the Recovery with respect to
such Mortgage Loan. As to any Distribution Date on or after the Subordination
Depletion Date, the amount determined in accordance with clause (b) above.
Class A-R Certificate: The Certificate executed by the Trustee
and authenticated by the Trustee or the Authenticating Agent in substantially
the form set forth in Exhibit A-R and Exhibit C hereto.
Class A-R Certificateholder: The registered holder of the Class
A-R Certificate.
Class B Certificate: Any one of the Class B-1 Certificates,
Class B-2 Certificates, Class B-3 Certificates, Class B-4 Certificates, Class
B-5 Certificates or Class B-6 Certificates.
Class B Certificateholder: The registered holder of a Class B
Certificate.
Class B Distribution Amount: Any of the Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5 or Class B-6 Distribution Amounts.
Class B Interest Accrual Amount: With respect to any
Distribution Date, the sum of the Interest Accrual Amounts for the Classes of
Class B Certificates with respect to such Distribution Date.
Class B Interest Percentage: With respect to any Distribution
Date and any Class of Class B Certificates, the percentage calculated by
dividing the Interest Accrual Amount of such Class (determined without regard to
clause (ii) of the definition thereof) by the Class B Interest Accrual Amount
(determined without regard to clause (ii) of the definition of each Interest
Accrual Amount).
Class B Interest Shortfall Amount: Any of the Class B-1 Interest
Shortfall Amount, Class B-2 Interest Shortfall Amount, Class B-3 Interest
Shortfall Amount, Class B-4 Interest Shortfall Amount, Class B-5 Interest
Shortfall Amount or Class B-6 Interest Shortfall Amount.
Class B Loss Percentage: With respect to any Determination Date
and any Class of Class B Certificates then outstanding, the percentage
calculated by dividing the Principal Balance of such Class by the Class B
Principal Balance (determined without regard to any Principal Balance of any
Class of Class B Certificates not then outstanding), in each case determined as
of the preceding Determination Date.
Class B Pass-Through Rate: As to any Distribution Date, ______%
per annum.
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Class B Percentage: Any one of the Class B-1 Percentage, Class
B-2 Percentage, Class B-3 Percentage, Class B-4 Percentage, Class B-5 Percentage
or Class B-6 Percentage.
Class B Prepayment Percentage: Any of the Class B-1 Prepayment
Percentage, Class B-2 Prepayment Percentage, Class B-3 Prepayment Percentage,
Class B-4 Prepayment Percentage, Class B-5 Prepayment Percentage or Class B-6
Prepayment Percentage.
Class B Principal Balance: As of any date, an amount equal to
the sum of the Class B-1 Principal Balance, Class B-2 Principal Balance, Class
B-3 Principal Balance, Class B-4 Principal Balance, Class B-5 Principal Balance
and Class B-6 Principal Balance.
Class B Unpaid Interest Shortfall: Any of the Class B-1 Unpaid
Interest Shortfall, Class B-2 Unpaid Interest Shortfall, Class B-3 Unpaid
Interest Shortfall, Class B-4 Unpaid Interest Shortfall, Class B-5 Unpaid
Interest Shortfall or Class B-6 Unpaid Interest Shortfall.
Class B-1 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-1 and Exhibit C hereto.
Class B-1 Certificateholder: The registered holder of a Class
B-1 Certificate.
Class B-1 Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-1 Certificates pursuant to
Paragraphs fifth, sixth and seventh of Section 4.01(a).
Class B-1 Interest Shortfall Amount: As to any Distribution
Date, any amount by which the Interest Accrual Amount of the Class B-1
Certificates with respect to such Distribution Date exceeds the amount
distributed in respect of the Class B-1 Certificates on such Distribution Date
pursuant to Paragraph fifth of Section 4.01(a).
Class B-1 Optimal Principal Amount: As to any Distribution Date,
an amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan,
of the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-1 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-1 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Class B-1 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending
on the day preceding the Determination Date for such Distribution Date,
was repurchased by the Seller pursuant to Section 2.02 or 2.03; and
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(iv) the Class B-1 Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such
Mortgage Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable
Servicer, the Master Servicer or the Trustee in respect of such Mortgage
Loan; and
(II) the Class B-1 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-1 Optimal Principal Amount
will equal the lesser of (A) the Class B-1 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-1 Certificates.
Class B-1 Percentage: As to any Distribution Date, the
percentage calculated by multiplying the Subordinated Percentage by either (i)
if any Class B Certificates (other than the Class B-1 Certificates) are eligible
to receive principal distributions for such Distribution Date in accordance with
Section 4.01(d), a fraction, the numerator of which is the Class B-1 Principal
Balance (determined as of the Determination Date preceding such Distribution
Date) and the denominator of which is the sum of the Principal Balances of the
Classes of Class B Certificates eligible to receive principal distributions for
such Distribution Date in accordance with the provisions of Section 4.01(d) or
(ii) except as set forth in Section 4.01(d)(ii), in the event that the Class B
Certificates (other than the Class B-1 Certificates) are not eligible to receive
distributions of principal in accordance with Section 4.01(d)(i), one.
Class B-1 Prepayment Percentage: As to any Distribution Date,
the percentage calculated by multiplying the Subordinated Prepayment Percentage
by either (i) if any Class B Certificates (other than the Class B-1
Certificates) are eligible to receive principal distributions for such
Distribution Date in accordance with Section 4.01(d), a fraction, the numerator
of which is the Class B-1 Principal Balance (determined as of the Determination
Date preceding such Distribution Date) and the denominator of which is the sum
of the Principal Balances of the Classes of Class B Certificates eligible to
receive principal distributions for such Distribution Date in accordance with
the provisions of Section 4.01(d) or (ii) except as set forth in Section
4.01(d)(ii), in the event that the Class B Certificates (other than the Class
B-1 Certificates) are not eligible to receive distributions of principal in
accordance with Section 4.01(d)(i), one.
Class B-1 Principal Balance: As to the first Determination Date,
the Original Class B-1 Principal Balance. As of any subsequent Determination
Date, the Original Class B-1 Principal Balance less the sum of all amounts
previously distributed in respect of the Class B-1 Certificates on prior
Distribution Dates (A) pursuant to Paragraph seventh of Section 4.01(a) and (B)
as a result of a Principal Adjustment; provided, however, if the Class B-1
Certificates are the most subordinate Certificates outstanding, the Class B-1
Principal Balance will equal the difference, if any, between the Adjusted Pool
Amount as of the preceding Distribution Date less the Class A Principal Balance
as of such Determination Date.
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Class B-1 Unpaid Interest Shortfall: As to any Distribution
Date, the amount, if any, by which the aggregate of the Class B-1 Interest
Shortfall Amounts for prior Distribution Dates is in excess of the amounts
distributed in respect of the Class B-1 Certificates on prior Distribution Dates
pursuant to Paragraph sixth of Section 4.01(a).
Class B-2 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-2 and Exhibit C hereto.
Class B-2 Certificateholder: The registered holder of a Class
B-2 Certificate.
Class B-2 Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-2 Certificates pursuant to
Paragraphs eighth, ninth and tenth of Section 4.01(a).
Class B-2 Interest Shortfall Amount: As to any Distribution
Date, any amount by which the Interest Accrual Amount of the Class B-2
Certificates with respect to such Distribution Date exceeds the amount
distributed in respect of the Class B-2 Certificates on such Distribution Date
pursuant to Paragraph eighth of Section 4.01(a).
Class B-2 Optimal Principal Amount: As to any Distribution Date,
an amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan,
of the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-2 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-2 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Class B-2 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending
on the day preceding the Determination Date for such Distribution Date,
was repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-2 Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such
Mortgage Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable
Servicer, the Master Servicer or the Trustee in respect of such Mortgage
Loan; and
(II) the Class B-2 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-2 Optimal Principal Amount
will equal the lesser of (A) the
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Class B-2 Optimal Principal Amount calculated as described in the preceding
provisions and (B) the Adjusted Principal Balance for the Class B-2
Certificates.
Class B-2 Percentage: As to any Distribution Date, except as set
forth in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-2 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-2 Certificates are not eligible to receive distributions of
principal in accordance with Section 4.01(d)(i), the Class B-2 Percentage for
such Distribution Date will be zero.
Class B-2 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Subordinated Prepayment Percentage by (ii) a fraction, the
numerator of which is the Class B-2 Principal Balance (determined as of the
Determination Date preceding such Distribution Date) and the denominator of
which is the sum of the Principal Balances of the Classes of Class B
Certificates eligible to receive principal distributions for such Distribution
Date in accordance with the provisions of Section 4.01(d). Except as set forth
in Section 4.01(d)(ii), in the event that the Class B-2 Certificates are not
eligible to receive distributions of principal in accordance with Section
4.01(d)(i), the Class B-2 Prepayment Percentage for such Distribution Date will
be zero.
Class B-2 Principal Balance: As to the first Determination Date,
the Original Class B-2 Principal Balance. As of any subsequent Determination
Date, the Original Class B-2 Principal Balance less the sum of all amounts
previously distributed in respect of the Class B-2 Certificates on prior
Distribution Dates (A) pursuant to Paragraph tenth of Section 4.01(a) and (B) as
a result of a Principal Adjustment; provided, however, if the Class B-2
Certificates are the most subordinate Certificates outstanding, the Class B-2
Principal Balance will equal the difference, if any, between the Adjusted Pool
Amount as of the preceding Distribution Date less the sum of the Class A
Principal Balance and the Class B-1 Principal Balance as of such Determination
Date.
Class B-2 Unpaid Interest Shortfall: As to any Distribution
Date, the amount, if any, by which the aggregate of the Class B-2 Interest
Shortfall Amounts for prior Distribution Dates is in excess of the amounts
distributed in respect of the Class B-2 Certificates on prior Distribution Dates
pursuant to Paragraph ninth of Section 4.01(a).
Class B-3 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-3 and Exhibit C hereto.
Class B-3 Certificateholder: The registered holder of a Class
B-3 Certificate.
Class B-3 Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-3 Certificates pursuant to
Paragraphs eleventh, twelfth and thirteenth of Section 4.01(a).
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Class B-3 Interest Shortfall Amount: As to any Distribution
Date, any amount by which the Interest Accrual Amount of the Class B-3
Certificates with respect to such Distribution Date exceeds the amount
distributed in respect of the Class B-3 Certificates on such Distribution Date
pursuant to Paragraph eleventh of Section 4.01(a).
Class B-3 Optimal Principal Amount: As to any Distribution Date,
an amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan,
of the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-3 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-3 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Class B-3 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending
on the day preceding the Determination Date for such Distribution Date,
was repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-3 Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such
Mortgage Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable
Servicer, the Master Servicer or the Trustee in respect of such Mortgage
Loan; and
(II) the Class B-3 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-3 Optimal Principal Amount
will equal the lesser of (A) the Class B-3 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-3 Certificates.
Class B-3 Percentage: As to any Distribution Date, except as set
forth in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-3 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-3 Certificates are not eligible to receive distributions of
principal in accordance with Section 4.01(d)(i), the Class B-3 Percentage for
such Distribution Date will be zero.
Class B-3 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Subordinated Prepayment
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Percentage by (ii) a fraction, the numerator of which is the Class B-3 Principal
Balance (determined as of the Determination Date preceding such Distribution
Date) and the denominator of which is the sum of the Principal Balances of the
Classes of Class B Certificates eligible to receive principal distributions for
such Distribution Date in accordance with the provisions of Section 4.01(d).
Except as set forth in Section 4.01(d)(ii), in the event that the Class B-3
Certificates are not eligible to receive distributions of principal in
accordance with Section 4.01(d)(i), the Class B-3 Prepayment Percentage for such
Distribution Date will be zero.
Class B-3 Principal Balance: As to the first Determination Date,
the Original Class B-3 Principal Balance. As of any subsequent Determination
Date, the Original Class B-3 Principal Balance less the sum of all amounts
previously distributed in respect of the Class B-3 Certificates on prior
Distribution Dates (A) pursuant to Paragraph thirteenth of Section 4.01(a) and
(B) as a result of a Principal Adjustment; provided, however, if the Class B-3
Certificates are the most subordinate Certificates outstanding, the Class B-3
Principal Balance will equal the difference, if any, between the Adjusted Pool
Amount as of the preceding Distribution Date less the sum of the Class A
Principal Balance, the Class B-1 Principal Balance and the Class B-2 Principal
Balance as of such Determination Date.
Class B-3 Unpaid Interest Shortfall: As to any Distribution
Date, the amount, if any, by which the aggregate of the Class B-3 Interest
Shortfall Amounts for prior Distribution Dates is in excess of the amounts
distributed in respect of the Class B-3 Certificates on prior Distribution Dates
pursuant to Paragraph twelfth of Section 4.01(a).
Class B-4 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-4 and Exhibit C hereto.
Class B-4 Certificateholder: The registered holder of a Class
B-4 Certificate.
Class B-4 Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-4 Certificates pursuant to
Paragraphs fourteenth, fifteenth and sixteenth of Section 4.01(a).
Class B-4 Interest Shortfall Amount: As to any Distribution
Date, any amount by which the Interest Accrual Amount of the Class B-4
Certificates with respect to such Distribution Date exceeds the amount
distributed in respect of the Class B-4 Certificates on such Distribution Date
pursuant to Paragraph fourteenth of Section 4.01(a).
Class B-4 Optimal Principal Amount: As to any Distribution Date,
an amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan,
of the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-4 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-4 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage
I-15
Loan during the Applicable Unscheduled Principal Receipt Period relating
to such Distribution Date for each applicable type of Unscheduled
Principal Receipt;
(iii) the Class B-4 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending
on the day preceding the Determination Date for such Distribution Date,
was repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-4 Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such
Mortgage Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable
Servicer, the Master Servicer or the Trustee in respect of such Mortgage
Loan; and
(II) the Class B-4 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-4 Optimal Principal Amount
will equal the lesser of (A) the Class B-4 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-4 Certificates.
Class B-4 Percentage: As to any Distribution Date, except as set
forth in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-4 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-4 Certificates are not eligible to receive distributions of
principal in accordance with Section 4.01(d)(i), the Class B-4 Percentage for
such Distribution Date will be zero.
Class B-4 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Subordinated Prepayment Percentage by (ii) a fraction, the
numerator of which is the Class B-4 Principal Balance (determined as of the
Determination Date preceding such Distribution Date) and the denominator of
which is the sum of the Principal Balances of the Classes of Class B
Certificates eligible to receive principal distributions for such Distribution
Date in accordance with the provisions of Section 4.01(d). Except as set forth
in Section 4.01(d)(ii), in the event that the Class B-4 Certificates are not
eligible to receive distributions of principal in accordance with Section
4.01(d)(i), the Class B-4 Prepayment Percentage for such Distribution Date will
be zero.
Class B-4 Principal Balance: As to the first Determination Date,
the Original Class B-4 Principal Balance. As of any subsequent Determination
Date, the Original Class B-4 Principal Balance less the sum of all amounts
previously distributed in respect of the Class B-4 Certificates on prior
Distribution Dates (A) pursuant to Paragraph sixteenth of Section 4.01(a) and
(B) as a result of a Principal Adjustment; provided, however, if the Class B-4
Certificates are
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the most subordinate Certificates outstanding, the Class B-4 Principal Balance
will equal the difference, if any, between the Adjusted Pool Amount as of the
preceding Distribution Date less the sum of the Class A Principal Balance, the
Class B-1 Principal Balance, the Class B-2 Principal Balance and the Class B-3
Principal Balance as of such Determination Date.
Class B-4 Unpaid Interest Shortfall: As to any Distribution
Date, the amount, if any, by which the aggregate of the Class B-4 Interest
Shortfall Amounts for prior Distribution Dates is in excess of the amounts
distributed in respect of the Class B-4 Certificates on prior Distribution Dates
pursuant to Paragraph fifteenth of Section 4.01(a).
Class B-5 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-5 and Exhibit C hereto.
Class B-5 Certificateholder: The registered holder of a Class
B-5 Certificate.
Class B-5 Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-5 Certificates pursuant to
Paragraphs seventeenth, eighteenth and nineteenth of Section 4.01(a).
Class B-5 Interest Shortfall Amount: As to any Distribution
Date, any amount by which the Interest Accrual Amount of the Class B-5
Certificates with respect to such Distribution Date exceeds the amount
distributed in respect of the Class B-5 Certificates on such Distribution Date
pursuant to Paragraph seventeenth of Section 4.01(a).
Class B-5 Optimal Principal Amount: As to any Distribution Date,
an amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan,
of the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-5 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-5 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Class B-5 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending
on the day preceding the Determination Date for such Distribution Date,
was repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-5 Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such
Mortgage Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable
Servicer, the Master Servicer or the Trustee in respect of such Mortgage
Loan; and
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(II) the Class B-5 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-5 Optimal Principal Amount
will equal the lesser of (A) the Class B-5 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-5 Certificates.
Class B-5 Percentage: As to any Distribution Date, except as set
forth in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-5 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d). Except as set forth in Section 4.01(d)(ii), in the event that
the Class B-5 Certificates are not eligible to receive distributions of
principal in accordance with Section 4.01(d)(i), the Class B-5 Percentage for
such Distribution Date will be zero.
Class B-5 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Subordinated Prepayment Percentage by (ii) a fraction, the
numerator of which is the Class B-5 Principal Balance (determined as of the
Determination Date preceding such Distribution Date) and the denominator of
which is the sum of the Principal Balances of the Classes of Class B
Certificates eligible to receive principal distributions for such Distribution
Date in accordance with the provisions of Section 4.01(d). Except as set forth
in Section 4.01(d)(ii), in the event that the Class B-5 Certificates are not
eligible to receive distributions of principal in accordance with Section
4.01(d)(i), the Class B-5 Prepayment Percentage for such Distribution Date will
be zero.
Class B-5 Principal Balance: As to the first Determination Date,
the Original Class B-5 Principal Balance. As of any subsequent Determination
Date, the Original Class B-5 Principal Balance less the sum of all amounts
previously distributed in respect of the Class B-5 Certificates on prior
Distribution Dates (A) pursuant to Paragraph nineteenth of Section 4.01(a) and
(B) as a result of a Principal Adjustment; provided, however, if the Class B-5
Certificates are the most subordinate Certificates outstanding, the Class B-5
Principal Balance will equal the difference, if any, between the Adjusted Pool
Amount as of the preceding Distribution Date less the sum of the Class A
Principal Balance, the Class B-1 Principal Balance, the Class B-2 Principal
Balance, the Class B-3 Principal Balance and the Class B-4 Principal Balance as
of such Determination Date.
Class B-5 Unpaid Interest Shortfall: As to any Distribution
Date, the amount, if any, by which the aggregate of the Class B-5 Interest
Shortfall Amounts for prior Distribution Dates is in excess of the amounts
distributed in respect of the Class B-5 Certificates on prior Distribution Dates
pursuant to Paragraph eighteenth of Section 4.01(a).
Class B-6 Certificate: Any one of the Certificates executed by
the Trustee and authenticated by the Trustee or the Authenticating Agent in
substantially the form set forth in Exhibit B-6 and Exhibit C hereto.
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Class B-6 Certificateholder: The registered holder of a Class
B-6 Certificate.
Class B-6 Distribution Amount: As to any Distribution Date, any
amount distributable to the Holders of the Class B-6 Certificates pursuant to
Paragraphs twentieth, twenty-first and twenty-second of Section 4.01(a).
Class B-6 Interest Shortfall Amount: As to any Distribution
Date, any amount by which the Interest Accrual Amount of the Class B-6
Certificates with respect to such Distribution Date exceeds the amount
distributed in respect of the Class B-6 Certificates on such Distribution Date
pursuant to Paragraph twentieth of Section 4.01(a).
Class B-6 Optimal Principal Amount: As to any Distribution Date,
an amount equal to the sum of (I) the sum, as to each Outstanding Mortgage Loan,
of the product of (x) the Non-PO Fraction with respect to such Mortgage Loan and
(y) the sum of:
(i) the Class B-6 Percentage of the principal portion of the Monthly
Payment due on the Due Date occurring in the month of such Distribution
Date on such Mortgage Loan;
(ii) the Class B-6 Prepayment Percentage of all Unscheduled Principal
Receipts (other than Recoveries) that were received by a Servicer with
respect to such Mortgage Loan during the Applicable Unscheduled
Principal Receipt Period relating to such Distribution Date for each
applicable type of Unscheduled Principal Receipt;
(iii) the Class B-6 Prepayment Percentage of the Scheduled Principal
Balance of such Mortgage Loan which, during the one month period ending
on the day preceding the Determination Date for such Distribution Date,
was repurchased by the Seller pursuant to Section 2.02 or 2.03; and
(iv) the Class B-6 Percentage of the excess of the unpaid principal
balance of such Mortgage Loan substituted for a Mortgage Loan during the
one month period ending on the day preceding the Determination Date for
such Distribution Date over the unpaid principal balance of such
Mortgage Loan, less the amount allocable to the principal portion of any
unreimbursed Periodic Advances previously made by the applicable
Servicer, the Master Servicer or the Trustee in respect of such Mortgage
Loan; and
(II) the Class B-6 Prepayment Percentage of the Non-PO Recovery for such
Distribution Date;
provided, however, that if an Optimal Adjustment Event occurs with respect to
such Class and such Distribution Date, the Class B-6 Optimal Principal Amount
will equal the lesser of (A) the Class B-6 Optimal Principal Amount calculated
as described in the preceding provisions and (B) the Adjusted Principal Balance
for the Class B-6 Certificates.
Class B-6 Percentage: As to any Distribution Date, except as set
forth in the next sentence, the percentage calculated by multiplying (i) the
Subordinated Percentage by (ii) a fraction, the numerator of which is the Class
B-6 Principal Balance (determined as of the Determination Date preceding such
Distribution Date) and the denominator of which is the sum of the Principal
Balances of the Classes of Class B Certificates eligible to receive principal
distributions for such Distribution Date in accordance with the provisions of
Section 4.01(d).
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Except as set forth in Section 4.01(d)(ii), in the event that the Class B-6
Certificates are not eligible to receive distributions of principal in
accordance with Section 4.01(d)(i), the Class B-6 Percentage for such
Distribution Date will be zero.
Class B-6 Prepayment Percentage: As to any Distribution Date,
except as set forth in the next sentence, the percentage calculated by
multiplying (i) the Subordinated Prepayment Percentage by (ii) a fraction, the
numerator of which is the Class B-6 Principal Balance (determined as of the
Determination Date preceding such Distribution Date) and the denominator of
which is the sum of the Principal Balances of the Classes of Class B
Certificates eligible to receive principal distributions for such Distribution
Date in accordance with the provisions of Section 4.01(d). Except as set forth
in Section 4.01(d)(ii), in the event that the Class B-6 Certificates are not
eligible to receive distributions of principal in accordance with Section
4.01(d)(i), the Class B-6 Prepayment Percentage for such Distribution Date will
be zero.
Class B-6 Principal Balance: As to the first Determination Date,
the Original Class B-6 Principal Balance. As of any subsequent Determination
Date, the Original Class B-6 Principal Balance less the sum of all amounts
previously distributed in respect of the Class B-6 Certificates on prior
Distribution Dates pursuant to Paragraph twenty-second of Section 4.01(a);
provided, however, if the Class B-6 Certificates are outstanding, the Class B-6
Principal Balance will equal the difference, if any, between the Adjusted Pool
Amount as of the preceding Distribution Date less the sum of the Class A
Principal Balance, the Class B-1 Principal Balance, the Class B-2 Principal
Balance, the Class B-3 Principal Balance, the Class B-4 Principal Balance and
the Class B-5 Principal Balance as of such Determination Date.
Class B-6 Unpaid Interest Shortfall: As to any Distribution
Date, the amount, if any, by which the aggregate of the Class B-6 Interest
Shortfall Amounts for prior Distribution Dates is in excess of the amounts
distributed in respect of the Class B-6 Certificates on prior Distribution Dates
pursuant to Paragraph twenty-first of Section 4.01(a).
Clearing Agency: An organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The initial Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, financial
institution or other Person for whom a Clearing Agency effects book-entry
transfers of securities deposited with the Clearing Agency.
Closing Date: The date of initial issuance of the Certificates,
as set forth in Section 11.21.
Code: The Internal Revenue Code of 1986, as it may be amended
from time to time, any successor statutes thereto, and applicable U.S.
Department of the Treasury temporary or final regulations promulgated
thereunder.
Compensating Interest: With respect to any Distribution Date,
the least of (a) the aggregate Prepayment Interest Shortfall on the Mortgage
Loans for such Distribution Date, (b) the product of (i) 1/12th of 0.20% and
(ii) the Pool Scheduled Principal Balance for such
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Distribution Date and (c) the Available Master Servicing Compensation for such
Distribution Date.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office, at the date of the execution of this instrument, is located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Current Class A Interest Distribution Amount: As to any
Distribution Date, the amount distributed in respect of the Class A Certificates
pursuant to Paragraph first of Section 4.01(a) on such Distribution Date.
Current Class B Interest Distribution Amount: As to any
Distribution Date, the amount distributed in respect of the Classes of Class B
Certificates pursuant to Paragraphs fifth, eighth, eleventh, fourteenth,
seventeenth and twentieth of Section 4.01(a) on such Distribution Date.
Current Class B-1 Fractional Interest: As to any Distribution
Date subsequent to the first Distribution Date, the percentage obtained by
dividing the sum of the Principal Balances of the Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates by the sum of the Class A Non-PO
Principal Balance and the Class B Principal Balance. As to the first
Distribution Date, the Original Class B-1 Fractional Interest.
Current Class B-2 Fractional Interest: As to any Distribution
Date subsequent to the first Distribution Date, the percentage obtained by
dividing the sum of the Principal Balances of the Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates by the sum of the Class A Non-PO Principal
Balance and the Class B Principal Balance. As to the first Distribution Date,
the Original Class B-2 Fractional Interest.
Current Class B-3 Fractional Interest: As to any Distribution
Date subsequent to the first Distribution Date, the percentage obtained by
dividing the sum of the Principal Balances of the Class B-4, Class B-5 and Class
B-6 Certificates by the sum of the Class A Non-PO Principal Balance and the
Class B Principal Balance. As to the first Distribution Date, the Original Class
B-3 Fractional Interest.
Current Class B-4 Fractional Interest: As to any Distribution
Date subsequent to the first Distribution Date, the percentage obtained by
dividing the sum of the Principal Balances of the Class B-5 and Class B-6
Certificates by the sum of the Class A Non-PO Principal Balance and the Class B
Principal Balance. As to the first Distribution Date, the Original Class B-4
Fractional Interest.
Current Class B-5 Fractional Interest: As to any Distribution
Date subsequent to the first Distribution Date, the percentage obtained by
dividing the Principal Balance of the Class B-6 Certificates by the sum of the
Class A Non-PO Principal Balance and the Class B Principal Balance. As to the
first Distribution Date, the Original Class B-5 Fractional Interest.
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Curtailment: Any Principal Prepayment made by a Mortgagor which
is not a Prepayment in Full.
Curtailment Interest Shortfall: On any Distribution Date with
respect to a Mortgage Loan which was the subject of a Curtailment:
(A) in the case where the Applicable Unscheduled Principal
Receipt Period is the Mid-Month Receipt Period and such
Curtailment is received by the Servicer on or after the
Determination Date in the month preceding the month of
such Distribution Date but prior to the first day of the
month of such Distribution Date, the amount of interest
that would have accrued at the Net Mortgage Interest
Rate on the amount of such Curtailment from the day of
its receipt or, if earlier, its application by the
Servicer through the last day of the month preceding the
month of such Distribution Date; and
(B) in the case where the Applicable Unscheduled Principal
Receipt Period is the Prior Month Receipt Period and
such Curtailment is received by the Servicer during the
month preceding the month of such Distribution Date, the
amount of interest that would have accrued at the Net
Mortgage Interest Rate on the amount of such Curtailment
from the day of its receipt or, if earlier, its
application by the Servicer through the last day of the
month in which such Curtailment is received.
Custodial Agreement: The Custodial Agreement, dated as of
____________, 200__, among the Custodian, the Seller, the Master Servicer and
the Trustee, which agreement is attached hereto as Exhibit E, as the same may be
amended or modified from time to time in accordance with the terms thereof.
Custodial P&I Account: The Custodial P&I Account, as defined in
each of the Servicing Agreements, with respect to the Mortgage Loans. In
determining whether the Custodial P&I Account under any Servicing Agreement is
"acceptable" to the Master Servicer (as may be required by the definition of
"Eligible Account" contained in the Servicing Agreements), the Master Servicer
shall require that any such account shall be acceptable to each of the Rating
Agencies.
Custodian: ▇▇▇▇▇ Fargo Bank Minnesota, National Association, or
its successor in interest under the Custodial Agreement.
Cut-Off Date: The first day of the month of initial issuance of
the Certificates as set forth in Section 11.02.
Cut-Off Date Aggregate Principal Balance: The aggregate of the
Cut-Off Date Principal Balances of the Mortgage Loans as set forth in Section
11.03.
Cut-Off Date Principal Balance: As to each Mortgage Loan, its
unpaid principal balance as of the close of business on the Cut-Off Date (but
without giving effect to any Unscheduled Principal Receipts received or applied
on the Cut-Off Date), reduced by all
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payments of principal due on or before the Cut-Off Date and not paid, and
increased by scheduled monthly payments of principal due after the Cut-Off Date
but received by the related Servicer on or before the Cut-Off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction constituting a Deficient Valuation.
Deficient Valuation: With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then-outstanding indebtedness under the Mortgage Loan, or
any reduction in the amount of principal to be paid in connection with any
scheduled Monthly Payment that results in a permanent forgiveness of principal,
which valuation or reduction results from a proceeding under the Bankruptcy
Code.
Definitive Certificates: As defined in Section 5.01(b).
Denomination: The amount, if any, specified on the face of each
Certificate representing the principal portion of the Cut-Off Date Aggregate
Principal Balance evidenced by such Certificate.
Determination Date: The 17th day of the month in which the
related Distribution Date occurs, or if such 17th day is not a Business Day, the
Business Day preceding such 17th day.
Discount Mortgage Loan: A Mortgage Loan with a Net Mortgage
Interest Rate of less than ______%.
Distribution Date: The 25th day of any month, beginning in the
month following the month of initial issuance of the Certificates, or if such
25th day is not a Business Day, the Business Day following such 25th day.
Document Transfer Event: The [__]th day following the day on
which either (i) WFHM is no longer the Servicer of any of the Mortgage Loans or
(ii) the senior, unsecured long-term debt rating of ▇▇▇▇▇ Fargo & Company is
less than "BBB-" by Fitch.
Due Date: With respect to any Mortgage Loan, the day of the
month in which the Monthly Payment on such Mortgage Loan is scheduled to be
paid.
Eligible Account: One or more accounts (i) that are maintained
with a depository institution (which may be the Master Servicer) whose long-term
debt obligations (or, in the case of a depository institution which is part of a
holding company structure, the long-term debt obligations of such parent holding
company) at the time of deposit therein are rated at least "AA" (or the
equivalent) by each of the Rating Agencies, (ii) the deposits in which are fully
insured by the FDIC through either the Bank Insurance Fund or the Savings
Association Insurance Fund, (iii) the deposits in which are insured by the FDIC
through either the Bank Insurance Fund or the Savings Association Insurance Fund
(to the limit established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured, as evidenced by an Opinion of Counsel
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delivered to the Trustee, such that the Trustee, on behalf of the
Certificateholders has a claim with respect to the funds in such accounts or a
perfected first security interest against any collateral securing such funds
that is superior to claims of any other depositors or creditors of the
depository institution with which such accounts are maintained, (iv) that are
trust accounts maintained with the trust department of a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity or (v) such other account that is acceptable to each of the Rating
Agencies and would not cause the Trust Estate to fail to qualify as a REMIC or
result in the imposition of any federal tax on the REMIC.
Eligible Investments: At any time, any one or more of the
following obligations and securities which shall mature not later than the
Business Day preceding the Distribution Date next succeeding the date of such
investment, provided that such investments continue to qualify as "cash flow
investments" as defined in Code Section 860G(a)(6):
(i) obligations of the United States of America or any
agency thereof, provided such obligations are backed by the full faith
and credit of the United States of America;
(ii) general obligations of or obligations guaranteed by any
state of the United States of America or the District of Columbia
receiving the highest short-term or highest long-term rating of each
Rating Agency, or such lower rating as would not result in the
downgrading or withdrawal of the rating then assigned to any of the
Certificates by either Rating Agency or result in any of such rated
Certificates being placed on credit review status (other than for
possible upgrading) by either Rating Agency;
(iii) commercial or finance company paper which is then rated
in the highest long-term commercial or finance company paper rating
category of each Rating Agency or the highest short-term rating category
of each Rating Agency, or such lower rating category as would not result
in the downgrading or withdrawal of the rating then assigned to any of
the Certificates by either Rating Agency or result in any of such rated
Certificates being placed on credit review status (other than for
possible upgrading) by either Rating Agency;
(iv) certificates of deposit, demand or time deposits,
federal funds or banker's acceptances issued by any depository
institution or trust company incorporated under the laws of the United
States or of any state thereof and subject to supervision and
examination by federal and/or state banking authorities, provided that
the commercial paper and/or debt obligations of such depository
institution or trust company (or in the case of the principal depository
institution in a holding company system, the commercial paper or debt
obligations of such holding company) are then rated in the highest
short-term or the highest long-term rating category for such securities
of each of the Rating Agencies, or such lower rating categories as would
not result in the downgrading or withdrawal of the rating then assigned
to any of the Certificates by either Rating Agency or result in any of
such rated Certificates being placed on credit review status (other than
for possible upgrading) by either Rating Agency;
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(v) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation acceptable to each Rating Agency
at the time of the issuance of such agreements;
(vi) repurchase agreements on obligations with respect to any
security described in clauses (i) or (ii) above or any other security
issued or guaranteed by an agency or instrumentality of the United
States of America, in either case entered into with a depository
institution or trust company (acting as principal) described in (iv)
above;
(vii) securities (other than stripped bonds or stripped coupon
securities) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America
or any state thereof which, at the time of such investment or
contractual commitment providing for such investment, are then rated in
the highest short-term or the highest long-term rating category by each
Rating Agency, or in such lower rating category as would not result in
the downgrading or withdrawal of the rating then assigned to any of the
Certificates by either Rating Agency or result in any of such rated
Certificates being placed on credit review status (other than for
possible upgrading) by either Rating Agency;
(viii) such other investments acceptable to each Rating Agency
as would not result in the downgrading of the rating then assigned to
the Certificates by either Rating Agency or result in any of such rated
Certificates being placed on credit review status (other than for
possible upgrading) by either Rating Agency; and
(ix) any mutual fund, money market fund, common trust fund or
other pooled investment vehicle, the assets of which are limited to
instruments that otherwise would constitute Eligible Investments
hereunder, including any such fund that is managed by the Trustee or any
affiliate of the Trustee or for which the Trustee or any of its
affiliates acts as an adviser as long as such fund is rated in at least
the highest rating category by each Rating Agency.
In no event shall an instrument be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at the date of investment of greater than
120% of the yield to maturity at par of such underlying obligations.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Prohibited Holder: As defined in Section 5.02(d).
Errors and Omissions Policy: As defined in each of the Servicing
Agreements.
Event of Default: Any of the events specified in Section 7.01.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
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Fidelity Bond: As defined in each of the Servicing Agreements.
Final Distribution Date: The Distribution Date on which the
final distribution in respect of the Certificates is made pursuant to Section
9.01.
Final Scheduled Maturity Date: The Final Scheduled Maturity Date
for each Class of Certificates is ____________, 20__, which corresponds to the
"latest possible maturity date" for purposes of Section 860G(a)(1) of the
Internal Revenue Code of 1986, as amended.
Fitch: Fitch Ratings, or its successor in interest.
Fixed Retained Yield: The fixed percentage of interest on each
Mortgage Loan with a Mortgage Interest Rate greater than the sum of (a) ______%,
(b) the applicable Servicing Fee Rate and (c) the Master Servicing Fee Rate,
which will be determined on a loan by loan basis and will equal the Mortgage
Interest Rate on each Mortgage Loan minus the sum of (a), (b) and (c), which is
not assigned to and not part of the Trust Estate.
Fixed Retained Yield Rate: With respect to each Mortgage Loan, a
per annum rate equal to the greater of (a) zero and (b) the Mortgage Interest
Rate on such Mortgage Loan minus the sum of (i) ______%, (ii) the applicable
Servicing Fee Rate and (iii) the Master Servicing Fee Rate.
Full Unscheduled Principal Receipt: Any Unscheduled Principal
Receipt with respect to a Mortgage Loan (i) in the amount of the outstanding
principal balance of such Mortgage Loan and resulting in the full satisfaction
of such Mortgage Loan or (ii) representing Liquidation Proceeds other than
Partial Liquidation Proceeds.
Holder: See "Certificateholder."
Independent: When used with respect to any specified Person,
such Person who (i) is in fact independent of the Seller, the Master Servicer
and any Servicer, (ii) does not have any direct financial interest or any
material indirect financial interest in the Seller or the Master Servicer or any
Servicer or in an affiliate of either, and (iii) is not connected with the
Seller, the Master Servicer or any Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Insurance Policy: Any insurance or performance bond relating to
a Mortgage Loan or the Mortgage Loans, including any hazard insurance, special
hazard insurance, flood insurance, primary mortgage insurance, mortgagor
bankruptcy bond or title insurance.
Insurance Proceeds: Proceeds paid by any insurer pursuant to any
Insurance Policy covering a Mortgage Loan.
Insured Expenses: Expenses covered by any Insurance Policy
covering a Mortgage Loan.
Interest Accrual Amount: As to any Distribution Date and any
Class of Class A Certificates, (i) the product of (a) 1/12th of the Class A
Pass-Through Rate for such Class and
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(b) the Principal Balance of such Class as of the Determination Date immediately
preceding such Distribution Date minus (ii) the Class A Interest Percentage of
such Class of (a) any Non-Supported Interest Shortfall allocated to the Class A
Certificates with respect to such Distribution Date, (b) any Relief Act
Shortfall allocated to the Class A Certificates and (c) the interest portion of
any Realized Losses allocated to the Class A Certificates on or after the
Subordination Depletion Date pursuant to Section 4.02(c). The Class A-PO
Certificates have no Interest Accrual Amount.
As to any Distribution Date and any Class of Class B
Certificates, an amount equal to (i) the product of 1/12th of the Class B
Pass-Through Rate and the Principal Balance of such Class as of the
Determination Date preceding such Distribution Date minus (ii) the Class B
Interest Percentage of such Class of the sum of any Non-Supported Interest
Shortfall and any Relief Act Shortfall allocated to the Class B Certificates
with respect to such Distribution Date.
Liquidated Loan: A Mortgage Loan with respect to which the
related Mortgaged Property has been acquired, liquidated or foreclosed and with
respect to which the applicable Servicer determines that all Liquidation
Proceeds which it expects to recover have been recovered.
Liquidated Loan Loss: With respect to any Distribution Date, the
aggregate of the amount of losses with respect to each Mortgage Loan which
became a Liquidated Loan during the Applicable Unscheduled Principal Receipt
Period with respect to Full Unscheduled Principal Receipts for such Distribution
Date, equal to the excess of (i) the unpaid principal balance of each such
Liquidated Loan, plus accrued interest thereon in accordance with the
amortization schedule at the time applicable thereto at the applicable Net
Mortgage Interest Rate from the Due Date as to which interest was last paid with
respect thereto through the last day of the month preceding the month in which
such Distribution Date occurs, over (ii) Net Liquidation Proceeds with respect
to such Liquidated Loan.
Liquidation Expenses: Expenses incurred by a Servicer in
connection with the liquidation of any defaulted Mortgage Loan or property
acquired in respect thereof (including, without limitation, legal fees and
expenses, committee or referee fees, and, if applicable, brokerage commissions
and conveyance taxes), any unreimbursed advances expended by such Servicer
pursuant to its Servicing Agreement or the Master Servicer or Trustee pursuant
hereto respecting the related Mortgage Loan, including any unreimbursed advances
for real property taxes or for property restoration or preservation of the
related Mortgaged Property. Liquidation Expenses shall not include any
previously incurred expenses in respect of an REO Mortgage Loan which have been
netted against related REO Proceeds.
Liquidation Proceeds: Amounts received by a Servicer (including
Insurance Proceeds) or PMI Advances made by a Servicer in connection with the
liquidation of defaulted Mortgage Loans or property acquired in respect thereof,
whether through foreclosure, sale or otherwise, including payments in connection
with such Mortgage Loans received from the Mortgagor, other than amounts
required to be paid to the Mortgagor pursuant to the terms of the applicable
Mortgage or to be applied otherwise pursuant to law.
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Liquidation Profits: As to any Distribution Date and any
Mortgage Loan that became a Liquidated Loan during the Applicable Unscheduled
Principal Receipt Period with respect to Full Unscheduled Principal Receipts for
such Distribution Date, the excess, if any, of (i) Net Liquidation Proceeds in
respect of such Liquidated Loan over (ii) the unpaid principal balance of such
Liquidated Loan plus accrued interest thereon in accordance with the
amortization schedule at the time applicable thereto at the applicable Net
Mortgage Interest Rate from the Due Date to which interest was last paid with
respect thereto through the last day of the month preceding the month in which
such Distribution Date occurs.
Loan-to-Value Ratio: The ratio, expressed as a percentage, the
numerator of which is the principal balance of a particular Mortgage Loan at
origination and the denominator of which is the lesser of (x) the appraised
value of the related Mortgaged Property determined in the appraisal used by the
originator at the time of origination of such Mortgage Loan, and (y) if the
Mortgage is originated in connection with a sale of the Mortgaged Property, the
sale price for such Mortgaged Property.
Master Servicer: ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, or its successor in interest.
Master Servicing Fee: With respect to any Mortgage Loan and any
Distribution Date, the fee payable monthly to the Master Servicer pursuant to
Section 6.05 equal to a fixed percentage (expressed as a per annum rate) of the
unpaid principal balance of such Mortgage Loan.
Master Servicing Fee Rate: As set forth in Section 11.26.
MERS: The Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any MOM Mortgage Loan or any other Mortgage
Loan as to which MERS is (or is intended to be) the mortgagee of record and as
to which a MIN has been assigned.
MIN: A MERS Mortgage Identification Number assigned to a
Mortgage Loan in accordance with the MERS Procedure Manual.
MOM: A Mortgage Loan where the related Mortgage names MERS as
the original mortgagee thereof, as to which a MIN has been assigned, and which
Mortgage has not been assigned to any other person.
Mid-Month Receipt Period: With respect to each Distribution
Date, the one month period beginning on the Determination Date (or, in the case
of the first Distribution Date, from and including the Cut-Off-Date) occurring
in the calendar month preceding the month in which such Distribution Date occurs
and ending on the day preceding the Determination Date immediately preceding
such Distribution Date.
Month End Interest: As defined in each Servicing Agreement.
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Monthly Payment: As to any Mortgage Loan (including any REO
Mortgage Loan) and any Due Date, the payment of principal and interest due
thereon in accordance with the amortization schedule at the time applicable
thereto (after adjustment for any Curtailments and Deficient Valuations
occurring prior to such Due Date but before any adjustment to such amortization
schedule, other than for Deficient Valuations, by reason of any bankruptcy or
similar proceeding or any moratorium or similar waiver or grace period).
Mortgage: The mortgage, deed of trust or other instrument
creating a first lien on Mortgaged Property securing a Mortgage Note together
with any Mortgage Loan Rider, if applicable.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate at which interest accrues on the unpaid principal balance thereof as set
forth in the related Mortgage Note, which rate is as indicated on the Mortgage
Loan Schedule.
Mortgage Loan Purchase Agreement: The mortgage loan purchase
agreement dated as of ____________, 200__ between WFHM, as seller, and the
Seller, as purchaser.
Mortgage Loan Rider: The standard ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇ Mac riders
to the Mortgage Note and/or Mortgage riders required when the Mortgaged Property
is a condominium unit or a unit in a planned unit development.
Mortgage Loan Schedule: The list of the Mortgage Loans
transferred to the Trustee on the Closing Date as part of the Trust Estate and
attached hereto as Exhibits F-1 and F-2 which list may be amended following the
Closing Date upon conveyance of a Substitute Mortgage Loan pursuant to Section
2.02, 2.03 or 2.06 and which list shall set forth at a minimum the following
information as of the close of business on the Cut-Off Date (or, with respect to
Substitute Mortgage Loans, as of the close of business on the day of
substitution) as to each Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the city, state and zip code of the Mortgaged Property;
(iii) the type of property;
(iv) the Mortgage Interest Rate;
(v) the Net Mortgage Interest Rate;
(vi) the Monthly Payment;
(vii) the original number of months to maturity;
(viii) the scheduled maturity date;
(ix) the Cut-Off Date Principal Balance;
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(x) the Loan-to-Value Ratio at origination;
(xi) whether such Mortgage Loan is a Subsidy Loan;
(xii) whether such Mortgage Loan is covered by primary
mortgage insurance;
(xiii) the applicable Servicing Fee Rate;
(xiv) the Master Servicing Fee Rate;
(xv) Fixed Retained Yield Rate, if applicable; and
(xvi) for each Other Servicer Mortgage Loan, the name of the
Servicer with respect thereto.
Such schedule may consist of multiple reports that collectively
set forth all of the information required.
Mortgage Loans: Each of the mortgage loans transferred and
assigned to the Trustee on the Closing Date pursuant to Section 2.01 and any
mortgage loans substituted therefor pursuant to Section 2.02, 2.03 or 2.06, in
each case as from time to time are included in the Trust Estate as identified in
the Mortgage Loan Schedule.
Mortgage Note: The note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan together with
any related Mortgage Loan Riders, if applicable.
Mortgaged Property: The property subject to a Mortgage, which
may include Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: As to any defaulted Mortgage Loan,
Liquidation Proceeds net of Liquidation Expenses.
Net Mortgage Interest Rate: With respect to each Mortgage Loan,
a rate equal to (i) the Mortgage Interest Rate on such Mortgage Loan minus (ii)
the sum of (a) the applicable Servicing Fee Rate, as set forth in Section 11.25
with respect to such Mortgage Loan, (b) the Master Servicing Fee Rate, as set
forth in Section 11.26 with respect to such Mortgage Loan and (c) the Fixed
Retained Yield Rate, if any, with respect to such Mortgage Loan. Any regular
monthly computation of interest at such rate shall be based upon annual interest
at such rate on the applicable amount divided by twelve.
Net REO Proceeds: As to any REO Mortgage Loan, REO Proceeds net
of any related expenses of the Servicer.
Non-permitted Foreign Holder: As defined in Section 5.02(d).
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Non-PO Fraction: With respect to any Mortgage Loan, the lesser
of (i) 1.00 and (ii) the quotient obtained by dividing the Net Mortgage Interest
Rate for such Mortgage Loan by ______%.
Non-PO Recovery: As to any Distribution Date, the amount of all
Recoveries received during the Applicable Unscheduled Principal Receipt Periods
for such Distribution Date less the Class A-PO Recovery for such Distribution
Date.
Nonrecoverable Advance: Any portion of a Periodic Advance
previously made or proposed to be made in respect of a Mortgage Loan which has
not been previously reimbursed to the Servicer, the Master Servicer or the
Trustee, as the case may be, and which the Servicer, the Master Servicer or the
Trustee determines will not, or in the case of a proposed Periodic Advance would
not, be ultimately recoverable from Liquidation Proceeds or other recoveries in
respect of the related Mortgage Loan. The determination by the Servicer, the
Master Servicer or the Trustee (i) that it has made a Nonrecoverable Advance or
(ii) that any proposed Periodic Advance, if made, would constitute a
Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of the
Servicer delivered to the Master Servicer for redelivery to the Trustee or, in
the case of a Master Servicer determination, an Officer's Certificate of the
Master Servicer delivered to the Trustee, in each case detailing the reasons for
such determination.
Non-Supported Interest Shortfall: With respect to any
Distribution Date, the sum of (i) the excess, if any, of the aggregate
Prepayment Interest Shortfall on the Mortgage Loans over the aggregate
Compensating Interest with respect to such Distribution Date and (ii)
Curtailment Interest Shortfalls with respect to such Distribution Date. With
respect to each Distribution Date occurring on or after the Subordination
Depletion Date, the Non-Supported Interest Shortfall determined pursuant to the
preceding sentence will be increased by the amount of any Subordination
Depletion Date Interest Shortfall for such Distribution Date. Any Non-Supported
Interest Shortfall will be allocated to (a) the Class A Certificates according
to the percentage obtained by dividing the Class A Non-PO Principal Balance by
the sum of the Class A Non-PO Principal Balance and the Class B Principal
Balance and (b) the Class B Certificates according to the percentage obtained by
dividing the Class B Principal Balance by the sum of the Class A Non-PO
Principal Balance and the Class B Principal Balance.
Non-U.S. Person: As defined in Section 4.01(f).
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Officers' Certificate: With respect to any Person, a certificate
signed by the Chairman of the Board, the President or a Vice President, and by
the Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of such Person (or, in the case of a Person which is not a
corporation, signed by the person or persons having like responsibilities), and
delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel, who may be
outside or salaried counsel for the Seller, a Servicer or the Master Servicer,
or any affiliate of the Seller, a Servicer or the Master Servicer, acceptable to
the Trustee if such opinion is to be delivered to the Trustee; provided,
however, that with respect to REMIC matters, matters relating to the
determination of
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Eligible Accounts or matters relating to transfers of Certificates, such counsel
shall be Independent.
Optimal Adjustment Event: With respect to any Class of Class B
Certificates and any Distribution Date, an Optimal Adjustment Event will occur
with respect to such Class if: (i) the Principal Balance of such Class on the
Determination Date succeeding such Distribution Date would have been reduced to
zero (regardless of whether such Principal Balance was reduced to zero as a
result of principal distribution or the allocation of Realized Losses) and (ii)
(a) the Principal Balance of any Class of Class A Certificates would be subject
to further reduction as a result of the third or sixth sentence of the
definition of Principal Balance or (b) the Principal Balance of a Class of Class
B Certificates with a lower numerical designation would be reduced with respect
to such Distribution Date as a result of the application of the proviso in the
definition of Class B-1 Principal Balance, Class B-2 Principal Balance, Class
B-3 Principal Balance, Class B-4 Principal Balance, Class B-5 Principal Balance
or Class B-6 Principal Balance.
Original Class A Non-PO Principal Balance: The sum of the
Original Principal Balances of the Class A-1, Class A-2, Class A-3, Class A-4
and Class A-R Certificates as set forth in Section 11.05.
Original Class A Percentage: The Class A Percentage as of the
Cut-Off Date, as set forth in Section 11.04.
Original Class B Principal Balance: The sum of the Original
Class B-1 Principal Balance, Original Class B-2 Principal Balance, Original
Class B-3 Principal Balance, Original Class B-4 Principal Balance, Original
Class B-5 Principal Balance and Original Class B-6 Principal Balance, as set
forth in Section 11.08.
Original Class B-1 Fractional Interest: As to the first
Distribution Date, the percentage obtained by dividing the sum of the Original
Class B-2 Principal Balance, the Original Class B-3 Principal Balance, the
Original Class B-4 Principal Balance, the Original Class B-5 Principal Balance
and the Original Class B-6 Principal Balance by the sum of the Original Class A
Non-PO Principal Balance and the Original Class B Principal Balance. The
Original Class B-1 Fractional Interest is specified in Section 11.10.
Original Class B-2 Fractional Interest: As to the first
Distribution Date, the percentage obtained by dividing the sum of the Original
Class B-3 Principal Balance, the Original Class B-4 Principal Balance, the
Original Class B-5 Principal Balance and the Original Class B-6 Principal
Balance by the sum of the Original Class A Non-PO Principal Balance and the
Original Class B Principal Balance. The Original Class B-2 Fractional Interest
is specified in Section 11.11.
Original Class B-3 Fractional Interest: As to the first
Distribution Date, the percentage obtained by dividing the sum of the Original
Class B-4 Principal Balance, the Original Class B-5 Principal Balance and the
Original Class B-6 Principal Balance by the sum of the Original Class A Non-PO
Principal Balance and the Original Class B Principal Balance. The Original Class
B-3 Fractional Interest is specified in Section 11.12.
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Original Class B-4 Fractional Interest: As to the first
Distribution Date, the percentage obtained by dividing the sum of the Original
Class B-5 Principal Balance and the Original Class B-6 Principal Balance by the
sum of the Original Class A Non-PO Principal Balance and the Original Class B
Principal Balance. The Original Class B-4 Fractional Interest is specified in
Section 11.13.
Original Class B-5 Fractional Interest: As to the first
Distribution Date, the percentage obtained by dividing the Original Class B-6
Principal Balance by the sum of the Original Class A Non-PO Principal Balance
and the Original Class B Principal Balance. The Original Class B-5 Fractional
Interest is specified in Section 11.14.
Original Class B-1 Percentage: The Class B-1 Percentage as of
the Cut-Off Date, as set forth in Section 11.15.
Original Class B-2 Percentage: The Class B-2 Percentage as of
the Cut-Off Date, as set forth in Section 11.16.
Original Class B-3 Percentage: The Class B-3 Percentage as of
the Cut-Off Date, as set forth in Section 11.17.
Original Class B-4 Percentage: The Class B-4 Percentage as of
the Cut-Off Date, as set forth in Section 11.18.
Original Class B-5 Percentage: The Class B-5 Percentage as of
the Cut-Off Date, as set forth in Section 11.19.
Original Class B-6 Percentage: The Class B-6 Percentage as of
the Cut-Off Date, as set forth in Section 11.20.
Original Class B-1 Principal Balance: The Class B-1 Principal
Balance as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-2 Principal Balance: The Class B-2 Principal
Balance as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-3 Principal Balance: The Class B-3 Principal
Balance as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-4 Principal Balance: The Class B-4 Principal
Balance as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-5 Principal Balance: The Class B-5 Principal
Balance as of the Cut-Off Date, as set forth in Section 11.09.
Original Class B-6 Principal Balance: The Class B-6 Principal
Balance as of the Cut-Off Date, as set forth in Section 11.09.
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Original Principal Balance: Any of the Original Principal
Balances of the Classes of Class A Certificates as set forth in Section 11.05;
Original Class B-1 Principal Balance, Original Class B-2 Principal Balance,
Original Class B-3 Principal Balance, Original Class B-4 Principal Balance,
Original Class B-5 Principal Balance or Original Class B-6 Principal Balance as
set forth in Section 11.09.
Original Subordinated Percentage: The Subordinated Percentage as
of the Cut-Off Date, as set forth in Section 11.07.
Other Servicer: Any of the Servicers other than WFHM.
Other Servicer Mortgage Loan: Any of the Mortgage Loans
identified in Exhibit F-2 hereto, as such Exhibit may be amended from time to
time in connection with a substitution pursuant to Section 2.02 or 2.06, which
Mortgage Loan is serviced under an Other Servicing Agreement.
Other Servicing Agreements: The Servicing Agreements other than
the WFHM Servicing Agreement.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan
(including an REO Mortgage Loan) which was not the subject of a Full Unscheduled
Principal Receipt prior to such Due Date and which was not repurchased by the
Seller prior to such Due Date pursuant to Section 2.02 or 2.03.
Owner Mortgage Loan File: A file maintained by the Custodian for
each Mortgage Loan that contains the documents specified in Section 2.01(a) and
any additional documents required to be added to the Owner Mortgage Loan File
pursuant to this Agreement.
Partial Liquidation Proceeds: Liquidation Proceeds received by a
Servicer prior to the Unscheduled Principal Receipt Period in which the related
Mortgage Loan became a Liquidated Loan.
Partial Unscheduled Principal Receipt: An Unscheduled Principal
Receipt which is not a Full Unscheduled Principal Receipt.
Paying Agent: The Person authorized on behalf of the Trustee, as
agent for the Master Servicer, to make distributions to Certificateholders with
respect to the Certificates and to forward to Certificateholders the periodic
and annual statements required by Section 4.04. The Paying Agent may be any
Person directly or indirectly controlling or controlled by or under common
control with the Master Servicer and may be the Trustee. The initial Paying
Agent is appointed in Section 4.03(a).
Payment Account: The account maintained pursuant to Section
4.03(b).
Percentage Interest: With respect to a Class A Certificate, the
undivided percentage interest obtained by dividing the original principal
balance of such Certificate by the Original Principal Balance of such Class of
Class A Certificates. With respect to a Class B Certificate of a Class, the
undivided percentage interest obtained by dividing the original
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principal balance of such Certificate by the Original Principal Balance of such
Class of Class B Certificates.
Periodic Advance: The aggregate of the advances required to be
made by a Servicer on any Distribution Date pursuant to its Servicing Agreement
or by the Master Servicer or the Trustee hereunder, the amount of any such
advances being equal to the total of all Monthly Payments (adjusted, in each
case (i) in respect of interest, to the applicable Mortgage Interest Rate less
the applicable Servicing Fee in the case of Periodic Advances made by a Servicer
and to the applicable Net Mortgage Interest Rate in the case of Periodic
Advances made by the Master Servicer or Trustee and (ii) by the amount of any
related Debt Service Reductions or reductions in the amount of interest
collectable from the Mortgagor pursuant to the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended, or similar legislation or regulations then in
effect) on the Mortgage Loans, that (x) were delinquent as of the close of
business on the related Determination Date, (y) were not the subject of a
previous Periodic Advance by such Servicer or of a Periodic Advance by the
Master Servicer or the Trustee, as the case may be and (z) have not been
determined by the Master Servicer, such Servicer or Trustee to be Nonrecoverable
Advances.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan: As defined in Section 5.02(c).
PMI Advance: As defined in the related Servicing Agreement, if
applicable.
PO Fraction: With respect to any Discount Mortgage Loan, the
difference between 1.0 and the Non-PO Fraction for such Mortgage Loan; with
respect to any other Mortgage Loan, zero.
Pool Balance (Non-PO Portion): As of any Distribution Date, the
sum of the amounts for each Mortgage Loan that is an Outstanding Mortgage Loan
of the product of (i) the Non-PO Fraction for such Mortgage Loan and (ii) the
Scheduled Principal Balance of such Mortgage Loan.
Pool Balance (PO Portion): As of any Distribution Date, the sum
of the amounts for each Mortgage Loan that is an Outstanding Mortgage Loan of
the product of (i) the PO Fraction for such Mortgage Loan and (ii) the Scheduled
Principal Balance of such Mortgage Loan.
Pool Distribution Amount: As of any Distribution Date, the funds
eligible for distribution to the Class A Certificates and Class B Certificates
on such Distribution Date, which shall be the sum of (i) all previously
undistributed payments or other receipts on account of principal and interest on
or in respect of the Mortgage Loans (including, without limitation, the proceeds
of any repurchase of a Mortgage Loan by the Seller and any Substitution
Principal Amount) received by the Master Servicer with respect to the applicable
Remittance Date in the month of such Distribution Date and any Unscheduled
Principal Receipts received by the Master Servicer on or prior to the Business
Day preceding such Distribution Date, (ii) all Periodic
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Advances made by a Servicer pursuant to the related Servicing Agreement or
Periodic Advances made by the Master Servicer or the Trustee pursuant to Section
3.03, (iii) any remaining Reimbursement Amount as provided in Section 4.01(a)
and (iv) all other amounts required to be placed in the Certificate Account by
the Servicer on or before the applicable Remittance Date or by the Master
Servicer or the Trustee on or prior to the Distribution Date, but excluding the
following:
(a) amounts received as late payments of principal or
interest and respecting which the Master Servicer or the Trustee has
made one or more unreimbursed Periodic Advances;
(b) the portion of Liquidation Proceeds used to reimburse
any unreimbursed Periodic Advances by the Master Servicer or the
Trustee;
(c) those portions of each payment of interest on a
particular Mortgage Loan which represent (i) the Fixed Retained Yield,
if any, (ii) the applicable Servicing Fee and (iii) the Master Servicing
Fee;
(d) all amounts representing scheduled payments of principal
and interest due after the Due Date occurring in the month in which such
Distribution Date occurs;
(e) all Unscheduled Principal Receipts received by the
Servicers after the Applicable Unscheduled Principal Receipt Period
relating to the Distribution Date for the applicable type of Unscheduled
Principal Receipt, and all related payments of interest on such amounts;
(f) all repurchase proceeds with respect to Mortgage Loans
repurchased by the Seller pursuant to Section 2.02, 2.03 or 3.08 on or
following the Determination Date in the month in which such Distribution
Date occurs and the difference between the unpaid principal balance of a
Mortgage Loan substituted for a Mortgage Loan pursuant to Section 2.02,
2.03 or 2.06 on or following the Determination Date in the month in
which such Distribution Date occurs and the unpaid principal balance of
such Mortgage Loan;
(g) that portion of Liquidation Proceeds and REO Proceeds
which represents any unpaid Servicing Fee or Master Servicing Fee;
(h) all income from Eligible Investments that is held in the
Certificate Account for the account of the Master Servicer;
(i) all other amounts permitted to be withdrawn from the
Certificate Account in respect of the Mortgage Loans, to the extent not
covered by clauses (a) through (h) above, or not required to be
deposited in the Certificate Account under this Agreement;
(j) Liquidation Profits;
(k) Month End Interest; and
(l) all amounts reimbursable to a Servicer for PMI Advances.
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Pool Scheduled Principal Balance: As to any Distribution Date,
the aggregate Scheduled Principal Balances of all Mortgage Loans that were
Outstanding Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date.
Prepayment In Full: With respect to any Mortgage Loan, a
Mortgagor payment consisting of a Principal Prepayment in the amount of the
outstanding principal balance of such loan and resulting in the full
satisfaction of such obligation.
Prepayment Interest Shortfall: On any Distribution Date, the
amount of interest, if any, that would have accrued on any Mortgage Loan which
was the subject of a Prepayment in Full at the Net Mortgage Interest Rate for
such Mortgage Loan from the date of its Prepayment in Full (but in the case of a
Prepayment in Full where the Applicable Unscheduled Principal Receipt Period is
the Mid-Month Receipt Period, only if the date of the Prepayment in Full is on
or after the Determination Date in the month prior to the month of such
Distribution Date and prior to the first day of the month of such Distribution
Date) through the last day of the month prior to the month of such Distribution
Date.
Principal Adjustment: In the event that the Class B-1 Optimal
Principal Amount, Class B-2 Optimal Principal Amount, Class B-3 Optimal
Principal Amount, Class B-4 Optimal Principal Amount, Class B-5 Optimal
Principal Amount or Class B-6 Optimal Principal Amount is calculated in
accordance with the proviso in such definition with respect to any Distribution
Date, the Principal Adjustment for such Class of Class B Certificates shall
equal the difference between (i) the amount that would have been distributed to
such Class as principal in accordance with Section 4.01(a) for such Distribution
Date, calculated without regard to such proviso and assuming there are no
Principal Adjustments for such Distribution Date and (ii) the Adjusted Principal
Balance for such Class.
Principal Balance: As of the first Determination Date and as to
any Class of Class A Certificates, the Original Principal Balance of such Class.
As of any subsequent Determination Date prior to the Subordination Depletion
Date and as to any Class of Class A Certificates, the Original Principal Balance
of such Class less the sum of all amounts previously distributed in respect of
such Class on prior Distribution Dates (i) pursuant to Paragraph third clause
(A) of Section 4.01(a) and (ii) as a result of a Principal Adjustment. After the
Subordination Depletion Date, each such Principal Balance of a Class of Class A
Certificates will also be reduced (if clause (i) is greater than clause (ii)) or
increased (if clause (i) is less than clause (ii)) on each Determination Date by
an amount equal to the product of the Class A Loss Percentage of such Class and
the difference, if any, between (i) the Class A Non-PO Principal Balance as of
such Determination Date without regard to this sentence and (ii) the difference
between (A) the Adjusted Pool Amount for the preceding Distribution Date and (B)
the Adjusted Pool Amount (PO Portion) for the preceding Distribution Date;
provided, however, that the amount of any such reduction for the Class A-3
Certificates will be decreased by the Class A-4 Loss Allocation Amount. After
the Subordination Depletion Date, the Principal Balance for the Class A-4
Certificates will additionally be reduced by the Class A-4 Loss Allocation
Amount. In addition, any increase allocated to the Class A-3 Certificates
pursuant to the third sentence above will instead increase the Principal
Balances of the Class A-4 Certificates.
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As of any subsequent Determination Date prior to the
Subordination Depletion Date and as to the Class A-PO Certificates, the Original
Principal Balance of such Class less the sum of (a) all amounts previously
distributed in respect of the Class A-PO Certificates on prior Distribution
Dates pursuant to Paragraphs third clause (B) and fourth of Section 4.01(a) and
(b) the Realized Losses allocated through such Determination Date to the Class
A-PO Certificates pursuant to Section 4.02(b). After the Subordination Depletion
Date, the Adjusted Pool Amount (PO Portion) for the preceding Distribution Date.
As to the Class B Certificates, the Class B-1 Principal Balance,
Class B-2 Principal Balance, Class B-3 Principal Balance, Class B-4 Principal
Balance, Class B-5 Principal Balance and Class B-6 Principal Balance,
respectively.
Notwithstanding the foregoing, no Principal Balance of a Class
will be increased on any Determination Date such that the Principal Balance of
such Class exceeds its Original Principal Balance less all amounts previously
distributed in respect of such Class on prior Distribution Dates pursuant to
Paragraph third clause (A) of Section 4.01(a), Paragraph third clause (B) of
Section 4.01(a), or Paragraphs seventh, tenth, thirteenth, sixteenth, nineteenth
or twenty-second of Section 4.01(a).
Principal Prepayment: Any Mortgagor payment on a Mortgage Loan
which is received in advance of its Due Date and is not accompanied by an amount
representing scheduled interest for any period subsequent to the date of
prepayment.
Prior Month Receipt Period: With respect to each Distribution
Date, the calendar month preceding the month in which such Distribution Date
occurs.
Prohibited Transaction Tax: Any tax imposed under Section 860F
of the Code.
Prospectus: The prospectus dated ______ __, 20__ as supplemented by the
prospectus supplement dated _______ __,20__, relating to the Class A, Class B-1,
Class B-2 and Class B-3 Certificates.
Prudent Servicing Practices: The standard of care set forth in
each Servicing Agreement.
Rating Agency: Any nationally recognized statistical credit
rating agency, or its successor, that rated one or more Classes of the
Certificates at the request of the Seller at the time of the initial issuance of
the Certificates. The Rating Agencies for the Class A Certificates are ____ and
____. The Rating Agency for the Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates is ____. If any such agency or a successor is no longer
in existence, "Rating Agency" shall be such statistical credit rating agency, or
other comparable Person, designated by the Seller, notice of which designation
shall be given to the Trustee and the Master Servicer. References herein to the
highest short-term rating category of a Rating Agency shall mean ____ in the
case of ____, ____ in the case of ____ and in the case of any other Rating
Agency shall mean its equivalent of such ratings. References herein to the
highest long-term rating categories of a Rating Agency shall mean ____ in the
case of ____ and ____, and in the case of any other Rating Agency shall mean its
equivalent of such ratings without any plus or minus.
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Realized Losses: With respect to any Distribution Date, (i)
Liquidated Loan Losses incurred on Liquidated Loans for which the Liquidation
Proceeds were received during the Applicable Unscheduled Principal Receipt
Period with respect to Full Unscheduled Principal Receipts with respect to such
Distribution Date and (ii) Bankruptcy Losses incurred during the period
corresponding to the Applicable Unscheduled Principal Receipt Period with
respect to Full Unscheduled Principal Receipts for such Distribution Date.
Record Date: The last Business Day of the month preceding the
month of the related Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to
such Mortgage Loan being determined to be a Liquidated Loan.
Reimbursement Amount: As defined in Section 2.03(c).
Relief Act Shortfall: Any interest shortfalls arising as a
result of the reduction in the amount of monthly interest payments on any
Mortgage Loans as a result of the application of the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended or comparable state legislation. Any Relief
Act Shortfall will be allocated to (a) the Class A Certificates according to the
percentage obtained by dividing the Class A Non-PO Principal Balance by the sum
of the Class A Non-PO Principal Balance and the Class B Principal Balance and
(b) the Class B Certificates according to the percentage obtained by dividing
the Class B Principal Balance by the sum of the Class A Non-PO Principal Balance
and the Class B Principal Balance.
REMIC: A "real estate mortgage investment conduit" as defined in
Code Section 860D. "The REMIC" means the REMIC constituted by the Trust Estate.
REMIC Provisions: Provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of Part IV of
Subchapter M of Chapter 1 of Subtitle A of the Code, and related provisions, and
U.S. Department of the Treasury temporary, proposed or final regulations
promulgated thereunder, as the foregoing are in effect (or with respect to
proposed regulations, are proposed to be in effect) from time to time.
Remittance Date: As defined in each of the Servicing Agreements.
REO Mortgage Loan: Any Mortgage Loan which is not a Liquidated
Loan and as to which the indebtedness evidenced by the related Mortgage Note is
discharged and the related Mortgaged Property is held as part of the Trust
Estate.
REO Proceeds: Proceeds received in respect of any REO Mortgage
Loan (including, without limitation, proceeds from the rental of the related
Mortgaged Property).
Request for Release: A request for release in substantially the
form attached as Exhibit G hereto.
Responsible Officer: When used with respect to the Trustee, the
Chairman or Vice-Chairman of the Board of Directors or Trustees, the Chairman or
Vice-Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the
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Chairman of the Committee on Trust Matters, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier,
any Assistant Cashier, any Trust Officer or Assistant Trust Officer, the
Controller and any Assistant Controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Retained Mortgage Loan File: A file maintained by WFHM prior to
any Document Transfer Event for each Mortgage Loan that contains the documents
specified in Section 2.01(b) and any additional documents required to be added
to the Retained Mortgage Loan File pursuant to this Agreement.
Rule 144A: Rule 144A promulgated under the Securities Act of
1933, as amended.
Scheduled Principal Balance: As to any Mortgage Loan and
Distribution Date, the principal balance of such Mortgage Loan as of the Due
Date in the month preceding the month of such Distribution Date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any bankruptcy (other than Deficient
Valuations) or similar proceeding or any moratorium or similar waiver or grace
period) after giving effect to (A) Unscheduled Principal Receipts received or
applied by the applicable Servicer during the related Unscheduled Principal
Receipt Period for each applicable type of Unscheduled Principal Receipt related
to the Distribution Date occurring in the month preceding such Distribution
Date, (B) Deficient Valuations incurred prior to such Due Date and (C) the
payment of principal due on such Due Date and irrespective of any delinquency in
payment by the related Mortgagor. Accordingly, the Scheduled Principal Balance
of a Mortgage Loan which becomes a Liquidated Loan at any time through the last
day of such related Unscheduled Principal Receipt Period shall be zero.
Seller: ▇▇▇▇▇ Fargo Asset Securities Corporation, or its
successor in interest.
Servicer Mortgage Loan File: As defined in each of the Servicing
Agreements.
Servicers: Each of WFHM, [_________] and [____________], as a
Servicer under the related Servicing Agreement.
Servicing Agreements: Each of the Servicing Agreements executed
with respect to a portion of the Mortgage Loans by one of the Servicers, which
agreements are attached hereto, collectively, as Exhibit L.
Servicing Fee: With respect to any Servicer, as defined in its
Servicing Agreement.
Servicing Fee Rate: With respect to a Mortgage Loan, as set
forth in Section 11.25.
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Servicing Officer: Any officer of a Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans.
Similar Law: As defined in Section 5.02(c).
Single Certificate: A Certificate of any Class that evidences
the smallest permissible Denomination for such Class, as set forth in Section
11.24.
Startup Day: As defined in Section 2.05.
Subordinated Percentage: As to any Distribution Date, the
percentage which is the difference between 100% and the Class A Percentage for
such date.
Subordinated Prepayment Percentage: As to any Distribution Date,
the percentage which is the difference between 100% and the Class A Prepayment
Percentage for such date.
Subordination Depletion Date: The Distribution Date preceding
the first Distribution Date on which the Class A Percentage (determined pursuant
to clause (ii) of the definition thereof) equals or exceeds 100%.
Subordination Depletion Date Interest Shortfall: With respect to
any Distribution Date that occurs on or after the Subordination Depletion Date
with respect to any Unscheduled Principal Receipt (other than a Prepayment in
Full or Curtailment):
(A) in the case where the Applicable Unscheduled Principal
Receipt Period is the Mid-Month Receipt Period and such
Unscheduled Principal Receipt is received by the
Servicer on or after the Determination Date in the month
preceding the month of such Distribution Date but prior
to the first day of the month of such Distribution Date,
the amount of interest that would have accrued at the
Net Mortgage Interest Rate on the amount of such
Unscheduled Principal Receipt from the day of its
receipt or, if earlier, its application by the Servicer
through the last day of the month preceding the month of
such Distribution Date; and
(B) in the case where the Applicable Unscheduled Principal
Receipt Period is the Prior Month Receipt Period and
such Unscheduled Principal Receipt is received by the
Servicer during the month preceding the month of such
Distribution Date, the amount of interest that would
have accrued at the Net Mortgage Interest Rate on the
amount of such Unscheduled Principal Receipt from the
day of its receipt or, if earlier, its application by
the Servicer through the last day of the month in which
such Unscheduled Principal Receipt is received.
Subsidy Account: If the Trust Estate contains any Subsidy Loans,
the deposit account or accounts created and maintained by the Servicer for
deposit of Subsidy Funds and amounts payable under interest subsidy agreements
relating to mortgage loans other than the Mortgage Loans.
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Subsidy Funds: If the Trust Estate contains any Subsidy Loans,
funds contributed by the employer of a Mortgagor in order to reduce the payments
required from the Mortgagor for a specified period in specified amounts.
Subsidy Loan: Any Mortgage Loan subject to a temporary interest
subsidy agreement pursuant to which the monthly interest payments made by the
related Mortgagor will be less than the scheduled monthly interest payments on
such Mortgage Loan, with the resulting difference in interest payments being
provided by the employer of the Mortgagor. Each Subsidy Loan will be identified
as such in the Mortgage Loan Schedule.
Substitute Mortgage Loan: As defined in Section 2.02.
Substitution Principal Amount: With respect to any Mortgage Loan
substituted in accordance with Section 2.02 or pursuant to Section 2.03 or 2.06,
the excess of (x) the unpaid principal balance of the Mortgage Loan which is
substituted for over (y) the unpaid principal balance of the Substitute Mortgage
Loan, each balance being determined as of the date of substitution.
Trust Estate: The corpus of the trust created by this Agreement,
consisting of the Mortgage Loans (other than any Fixed Retained Yield), such
amounts as may be held from time to time in the Certificate Account (other than
any Fixed Retained Yield), the rights of the Trustee to receive the proceeds of
all insurance policies and performance bonds, if any, required to be maintained
hereunder or under the related Servicing Agreement, property which secured a
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure and all other property and rights described in the first paragraph
of Section 2.01(a).
Trustee: [TRUSTEE], a national banking association with its
principal office located in , , or any successor trustee
appointed as herein provided.
Type 1 Mortgage Loan: Any of the Mortgage Loans identified in
Exhibit F-1 hereto, as such Exhibit may be amended from time to time in
connection with a substitution pursuant to Section 2.02 or 2.06, serviced under
the WFHM Servicing Agreement and having a Mid-Month Receipt Period with respect
to all types of Unscheduled Principal Receipts.
Unpaid Interest Shortfalls: Each of the Class A Unpaid Interest
Shortfalls, the Class B-1 Unpaid Interest Shortfall, the Class B-2 Unpaid
Interest Shortfall, the Class B-3 Unpaid Interest Shortfall, the Class B-4
Unpaid Interest Shortfall, the Class B-5 Unpaid Interest Shortfall and the Class
B-6 Unpaid Interest Shortfall.
Unscheduled Principal Receipt: Any Principal Prepayment or other
recovery of principal on a Mortgage Loan, including, without limitation,
Liquidation Proceeds, Net REO Proceeds, Recoveries and proceeds received from
any condemnation award or proceeds in lieu of condemnation other than that
portion of such proceeds released to the Mortgagor in accordance with the terms
of the Mortgage or Prudent Servicing Practices, but excluding any Liquidation
Profits and proceeds of a repurchase of a Mortgage Loan by the Seller and any
Substitution Principal Amounts.
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Unscheduled Principal Receipt Period: Either a Mid-Month Receipt
Period or a Prior Month Receipt Period.
U.S. Person: As defined in Section 4.01(f).
Voting Interest: With respect to any provisions hereof providing
for the action, consent or approval of the Holders of all Certificates
evidencing specified Voting Interests in the Trust Estate, the Holders of each
Class of Certificates collectively will be entitled to the then-applicable
percentage of the aggregate Voting Interest represented by all Certificates
equal to the ratio obtained by dividing the Principal Balance of such Class by
the sum of the Class A Principal Balance and the Class B Principal Balance. Each
Certificateholder of a Class will have a Voting Interest equal to the product of
the Voting Interest to which such Class is collectively entitled and the
Percentage Interest in such Class represented by such Holder's Certificates.
With respect to any provisions hereof providing for action, consent or approval
of each Class of Certificates or specified Classes of Certificates, each
Certificateholder of a Class will have a Voting Interest in such Class equal to
such Holder's Percentage Interest in such Class.
WFHM: ▇▇▇▇▇ Fargo Home Mortgage, Inc., or its successor in
interest.
WFHM Correspondents: The entities listed on the Mortgage Loan
Schedule, from which WFHM purchased the Mortgage Loans.
WFHM Servicing Agreement: The Servicing Agreement providing for
the servicing of the Type 1 Mortgage Loans initially by WFHM.
Section 1.02 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee, if made
in the manner provided in this Section 1.02. The Trustee shall promptly
notify the Master Servicer in writing of the receipt of any such instrument
or writing.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. When such execution is by a signer acting in a capacity
other than his or her individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his or her authority. The fact and
date of the execution of any such instrument or writing, or the authority of
the individual executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
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(c) The ownership of Certificates (whether or not such
Certificates shall be overdue and notwithstanding any notation of ownership
or other writing thereon made by anyone other than the Trustee and the
Authenticating Agent) shall be proved by the Certificate Register, and
neither the Trustee, the Seller nor the Master Servicer shall be affected by
any notice to the contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action of the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustee, the Seller or the Master Servicer in reliance
thereon, whether or not notation of such action is made upon such
Certificate.
Section 1.03 Effect of Headings and Table of Contents.
The Article and Section headings in this Agreement and the Table
of Contents are for convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
Section 1.04 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or
implied, shall give to any Person, other than the parties to this Agreement and
their successors hereunder and the Holders of the Certificates, any benefit or
any legal or equitable right, power, remedy or claim under this Agreement.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF THE CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery
hereof, does hereby assign to the Trustee, without recourse all the right,
title and interest of the Seller in and to (a) the Trust Estate, including
all interest (other than the portion, if any, representing the Fixed Retained
Yield) and principal received by the Seller on or with respect to the
Mortgage Loans after the Cut-Off Date (and including scheduled payments of
principal and interest due after the Cut-Off Date but received by the Seller
on or before the Cut-Off Date and Unscheduled Principal Receipts received or
applied on the Cut-Off Date, but not including payments of principal and
interest due on the Mortgage Loans on or before the Cut-Off Date), (b) the
Insurance Policies, (c) the obligations of the Servicers under the Servicing
Agreements with respect to the Mortgage Loans, (d) the right to receive
amounts, if any, payable on behalf of any Mortgagor from the Subsidy Account
relating to any Subsidy Loan and (e) proceeds of all the foregoing.
In connection with such assignment, the Seller shall, with
respect to each Mortgage Loan, deliver, or cause to be delivered, to the
Custodian, on or before the Closing Date the following documents or instruments
with respect to each Mortgage Loan:
(i) The original Mortgage Note, endorsed in blank, with all
prior and intervening endorsements as may be necessary to show a complete chain
of endorsements or with respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost or destroyed and has not been replaced,
a Lost Note Affidavit with a copy of the Mortgage Note and, in the case of any
Mortgage Loan originated in the State of New York documented by a NYCEMA, the
NYCEMA, the new Mortgage Note, if applicable, the consolidated Mortgage Note and
the consolidated Mortgage;
(ii) A recorded original assignment of the related Mortgage from
WFHM assigning the related Mortgage to the Trustee (which may be assigned in
blank), certified by the recording office, or, if such assignment is in the
process of being recorded, a copy of the related Mortgage transmitted for
recordation certified by an officer of WFHM or applicable WFHM Correspondent to
be a true and correct copy of such assignment submitted for recordation;
provided, however, if recordation is not required as described below, an
assignment in recordable form (which may be assigned in blank) with respect to
the related Mortgage;
(iii) The original of each assumption agreement, modification,
written assurance or substitution agreement pertaining to such Mortgage Loan, if
any, or, if such document is in the process of being recorded, a copy of such
document, certified by an officer of WFHM or the applicable WFHM Correspondent
of such Mortgage Loan or by the applicable title insurance company, closing
agent, settlement agent, escrow agent or closing attorney to be a true and
correct copy of such document transmitted for recordation, if any; and
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(iv) For each Mortgage Loan secured by Co-op Shares, the
originals of the following documents or instruments:
(a) The loan security agreement;
(b) The stock certificate;
(c) The stock power, executed in blank;
(d) The executed proprietary lease;
(e) The executed recognition agreement;
(f) The executed assignment of recognition
agreement;
(g) The executed UCC-1 financing statement with
evidence of recording thereon; and
(h) The executed UCC-3 financing statements or other
appropriate UCC financing statements required by
state law, evidencing a complete and unbroken
chain from the mortgagee to the Trustee with
evidence of recording thereon (or in a form
suitable for recordation).
(b) Following a Document Transfer Event, the Seller shall,
with respect to each Mortgage Loan, deliver, or cause to be delivered, to the
Custodian, within [__] days copies (which may be in electronic form) of the
following additional documents or instruments with respect to each Mortgage
Loan; provided, however, that originals of such documents or instruments
shall be delivered to the Custodian if originals are required under the law
in which the related Mortgaged Property is located in order to exercise all
remedies available to the Trust under applicable law following default by the
related Mortgagor:
(i) The original recorded Mortgage with evidence of
recordation noted thereon or attached thereto, together with any addenda
or riders thereto, or a copy of such recorded Mortgage with such
evidence of recordation certified to be true and correct by the
appropriate governmental recording office; or a copy of such recorded
Mortgage with such evidence of recordation, or if the original Mortgage
has been submitted for recordation but has not been returned from the
applicable public recording office, a copy of the Mortgage certified by
an officer of WFHM or the applicable WFHM Correspondent to be a true and
correct copy of the original Mortgage submitted for recordation;
(ii) For each MERS Mortgage Loan that is not a MOM Mortgage
Loan, the original assignment showing MERS as the assignee of the
Mortgage, with evidence of recording thereon or copies thereof certified
by an officer of WFHM or the applicable WFHM Correspondent to have been
submitted for recordation;
(iii) Each original recorded intervening assignment of the
Mortgage as may be necessary to show a complete chain of title from the
Mortgage Loan originator to WFHM,
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with evidence of recordation noted thereon or attached thereto, or a
copy of such assignment with such evidence of recordation to be true and
correct by the appropriate governmental recording office, or, if any
such assignment has been submitted for recordation but has not been
returned from the applicable public recording office or is not otherwise
available, a copy of such assignment certified by an officer of WFHM or
the applicable WFHM Correspondent to be a true and correct copy of the
recorded assignment submitted for recordation; and
(iv) The original policy of the title insurance or
certificate of title insurance or a written commitment to issue such a
title insurance policy or certificate of title insurance, or a copy of
such title insurance certified as true and correct by the applicable
insurer or any attorney's certificate of title with an Officer's
Certificate of WFHM or the applicable WFHM Correspondent that such
attorney's certificate of title is customarily used in lieu of a title
insurance policy in the jurisdiction in which the related mortgage
property is located.
(c) If any assignment of a Mortgage to the Trustee is in the
process of being recorded on the Closing Date, the Seller shall use its best
efforts to cause each such original recorded document or certified copy
thereof to be delivered to the Custodian promptly following its recordation,
but in no event later than one (1) year following the Closing Date. If any
Mortgage has been recorded in the name of MERS or its designee, no assignment
of Mortgage in favor of the Trustee will be required to be prepared or
delivered and instead, the Master Servicer shall take all actions as are
necessary to cause the Trust Estate to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
The Seller shall also cause to be delivered to the Custodian any other
original mortgage loan document included in the Owner Mortgage Loan File if a
copy thereof has been delivered. The Seller shall pay from its own funds,
without any right of reimbursement therefor, the amount of any costs,
liabilities and expenses incurred by the Trust Estate by reason of the
failure of the Seller to cause to be delivered to the Custodian within one
(1) year following the Closing Date any assignment of a Mortgage (except with
respect to any Mortgage recorded in the name of MERS) not delivered to the
Custodian on the Closing Date.
In lieu of recording an assignment of any Mortgage the Seller
may, deliver or cause to be delivered to the Custodian the assignment of the
Mortgage Loan to the Trustee in a form suitable for recordation, if (i) with
respect to a particular state the Trustee has received an Opinion of Counsel
acceptable to it that such recording is not required to make the assignment
effective against the parties to the Mortgage or subsequent purchasers or
encumbrancers of the Mortgaged Property or (ii) the Seller has been advised by
each Rating Agency that non-recordation in a state will not result in a
reduction of the rating assigned by that Rating Agency at the time of initial
issuance of the Certificates. In the event that the Custodian receives notice
that recording is required to protect the right, title and interest of the
Trustee in and to any such Mortgage Loan for which recordation of an assignment
has not previously been required, the Custodian shall promptly notify the
Trustee and the Custodian shall within five Business Days (or such other
reasonable period of time mutually agreed upon by the Custodian and the Trustee)
of its receipt of such notice deliver each previously unrecorded assignment to
the related Servicer for recordation.
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Except where endorsements in blank are authorized, endorsements
of any Mortgage Notes shall comply with the following format:
WITHOUT RECOURSE
PAY TO THE ORDER OF:
[TRUSTEE], AS
TRUSTEE under the pooling and servicing
agreement dated as of [date].
and its successors and assigns,
▇▇▇▇▇ Fargo Home Mortgage, Inc.
[Signature of Officer]
[Officer's Name and Title]
Except where assignments in blank are authorized or in the case
of any Mortgage registered in the name of MERS, assignments of any Mortgage
shall comply with the following:
[TRUSTEE], AS
TRUSTEE
and its successors and assigns
Section 2.02 Acceptance by Custodian.
Subject to the provisions of the following paragraph, pursuant
to the Custodial Agreement, the Custodian, on behalf of the Trustee, will
declare that it holds and will hold the documents delivered to it pursuant to
Section 2.01 above and the other documents constituting a part of the Owner
Mortgage Loan Files or Retained Mortgage Loan Files (after the occurrence of a
Document Delivery Event) delivered to it in trust, upon the trusts herein set
forth, for the use and benefit of all present and future Certificateholders.
Upon execution of this Agreement, the Custodian will deliver to the Seller and
the Trustee an initial certification in the form of Exhibit N hereto, to the
effect that, except as may be specified in a list of exceptions attached
thereto, it has received the original Mortgage Notes relating to each Mortgage
Loan on the Mortgage Loan Schedule.
The Custodian will review each Owner Mortgage Loan File within
45 days after execution of this Agreement. The Custodian will deliver no later
than 30 days after completion of such review to the Seller and the Trustee a
final certification in the form of Exhibit O hereto to the effect that, except
as may be specified in a list of exceptions attached thereto, all required
documents set forth in Section 2.01(a) have been executed and received and
appear regular on their face, and that such documents relate to the Mortgage
Loans identified in the Mortgage Loan Schedule based on a comparison of the
Mortgage Loan identifying number, Mortgagor name and street address, and in so
doing the Custodian may rely on the purported due execution and genuineness of
any such document and on the purported genuineness of any signature thereon.
If within such 45 day period the Custodian finds any document
constituting a part of an Owner Mortgage Loan File not to have been executed or
received or to be unrelated to the Mortgage Loans identified in the Mortgage
Loan Schedule or not to appear regular on its face,
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the Custodian shall promptly (and in no event more than 30 days after completion
of the review) notify the Trustee and the Trustee shall notify the Seller. The
Seller shall have a period of 60 days after the date of such notice within which
to correct or cure any such defect. The Seller hereby covenants and agrees that,
if any material defect is not so corrected or cured, the Seller will, not later
than 60 days after the Trustee's notice to it referred to above respecting such
defect, either (i) repurchase the related Mortgage Loan or any property acquired
in respect thereof from the Trust Estate at a price equal to (a) 100% of the
unpaid principal balance of such Mortgage Loan plus (b) accrued interest at the
Mortgage Interest Rate (less any Fixed Retained Yield) through the last day of
the month in which such repurchase takes place or (ii) if within two years of
the Startup Day, or such other period permitted by the REMIC Provisions,
substitute for any Mortgage Loan to which such material defect relates, a new
mortgage loan (a "Substitute Mortgage Loan") having such characteristics so that
the representations and warranties of the Seller set forth in Section 2.03(b)
hereof (other than Section 2.03(b)(i)) would not have been incorrect had such
Substitute Mortgage Loan originally been a Mortgage Loan. In no event shall any
Substitute Mortgage Loan have an unpaid principal balance, as of the date of
substitution, greater than the Scheduled Principal Balance (reduced by the
scheduled payment of principal due on the Due Date in the month of substitution)
of the Mortgage Loan for which it is substituted. In addition, such Substitute
Mortgage Loan shall have a Loan-to-Value Ratio less than or equal to and a Net
Mortgage Interest Rate equal to that of the Mortgage Loan for which it is
substituted.
In the case of a repurchased Mortgage Loan or property, the
purchase price shall be deposited by the Seller in the Certificate Account
maintained by the Master Servicer pursuant to Section 3.01. In the case of a
Substitute Mortgage Loan, the Owner Mortgage Loan File (and Retained Mortgage
Loan File, if required pursuant to Section 2.01(b) hereof) relating thereto
shall be delivered to the Custodian and the Substitution Principal Amount,
together with (i) interest on such Substitution Principal Amount at the
applicable Net Mortgage Interest Rate to the following Due Date of such Mortgage
Loan which is being substituted for and (ii) an amount equal to the aggregate
amount of unreimbursed Periodic Advances in respect of interest previously made
by the Servicer, the Master Servicer or the Trustee with respect to such
Mortgage Loan, shall be deposited in the Certificate Account. The Monthly
Payment on the Substitute Mortgage Loan for the Due Date in the month of
substitution shall not be part of the Trust Estate. Upon receipt by the
Custodian of a Request for Release signed by an officer of the Seller, the
Custodian shall release to the Seller the related Owner Mortgage Loan File (and
Retained Mortgage Loan File, if applicable). The Trustee shall execute and
deliver such instrument of transfer or assignment (or, in the case of a Mortgage
Loan registered in the name of MERS or its designee, the Master Servicer shall
take all necessary action to reflect such assignment on the records of MERS), in
each case without recourse, as shall be necessary to vest in the Seller legal
and beneficial ownership of such substituted or repurchased Mortgage Loan or
property. It is understood and agreed that the obligation of the Seller to
substitute a new Mortgage Loan for or repurchase any Mortgage Loan or property
as to which such a material defect in a constituent document exists shall
constitute the sole remedy respecting such defect available to the
Certificateholders or the Trustee on behalf of the Certificateholders. The
failure of the Custodian to give the final certification or the Trustee to give
any notice within the required time periods shall not affect or relieve the
Seller's obligation to repurchase any Mortgage Loan pursuant to this Section
2.02.
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Section 2.03 Representations and Warranties of the Master
Servicer and the Seller.
(a) The Master Servicer hereby represents and warrants to
the Trustee for the benefit of the Certificateholders that, as of the date of
execution of this Agreement:
(i) The Master Servicer is a national banking association
duly chartered and validly existing in good standing under the laws of
the United States;
(ii) The execution and delivery of this Agreement by the
Master Servicer and its performance and compliance with the terms of
this Agreement will not violate the Master Servicer's corporate charter
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material contract, agreement or other instrument to
which the Master Servicer is a party or which may be applicable to the
Master Servicer or any of its assets;
(iii) This Agreement, assuming due authorization, execution
and delivery by the Trustee and the Seller, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against it in
accordance with the terms hereof subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Master Servicer is not in default with respect to
any order or decree of any court or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Master Servicer or
its properties or might have consequences that would affect its
performance hereunder; and
(v) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement.
It is understood and agreed that the representations and
warranties set forth in this Section 2.03(a) shall survive delivery of the
respective Owner Mortgage Loan Files to the Trustee or the Custodian.
(b) The Seller hereby represents and warrants to the Trustee
for the benefit of Certificateholders that, as of the date of execution of
this Agreement, with respect to the Mortgage Loans, or each Mortgage Loan, as
the case may be:
(i) The information set forth in the Mortgage Loan Schedule
was true and correct in all material respects at the date or dates
respecting which such information is furnished as specified in the
Mortgage Loan Schedule;
(ii) Immediately prior to the transfer and assignment
contemplated herein, the Seller was the sole owner and holder of the
Mortgage Loan free and clear of any and all
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liens, pledges, charges or security interests of any nature and has full
right and authority to sell and assign the same;
(iii) The Mortgage is a valid, subsisting and enforceable
first lien on the property therein described, and the Mortgaged Property
is free and clear of all encumbrances and liens having priority over the
first lien of the Mortgage except for liens for real estate taxes and
special assessments not yet due and payable and liens or interests
arising under or as a result of any federal, state or local law,
regulation or ordinance relating to hazardous wastes or hazardous
substances, and, if the related Mortgaged Property is a condominium
unit, any lien for common charges permitted by statute or homeowners
association fees; and if the Mortgaged Property consists of shares of a
cooperative housing corporation, any lien for amounts due to the
cooperative housing corporation for unpaid assessments or charges or any
lien of any assignment of rents or maintenance expenses secured by the
real property owned by the cooperative housing corporation; and any
security agreement, chattel mortgage or equivalent document related to,
and delivered to the Trustee or to the Custodian with, any Mortgage
establishes in the Seller a valid and subsisting first lien on the
property described therein and the Seller has full right to sell and
assign the same to the Trustee;
(iv) Neither the Seller nor any prior holder of the Mortgage
or the related Mortgage Note has modified the Mortgage or the related
Mortgage Note in any material respect, satisfied, canceled or
subordinated the Mortgage in whole or in part, released the Mortgaged
Property in whole or in part from the lien of the Mortgage, or executed
any instrument of release, cancellation, modification or satisfaction,
except in each case as is reflected in an agreement delivered to the
Trustee or the Custodian pursuant to Section 2.01(a);
(v) All taxes, governmental assessments, insurance premiums,
and water, sewer and municipal charges, which previously became due and
owing have been paid, or an escrow of funds has been established, to the
extent permitted by law, in an amount sufficient to pay for every such
item which remains unpaid; and the Seller has not advanced funds, or
received any advance of funds by a party other than the Mortgagor,
directly or indirectly (except pursuant to any Subsidy Loan arrangement)
for the payment of any amount required by the Mortgage, except for
interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the
day which precedes by thirty days the first Due Date under the related
Mortgage Note;
(vi) The Mortgaged Property is undamaged by water, fire,
earthquake, earth movement other than earthquake, windstorm, flood,
tornado or similar casualty (excluding casualty from the presence of
hazardous wastes or hazardous substances, as to which the Seller makes
no representations), so as to affect adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for
which the premises were intended and to the best of the Seller's
knowledge, there is no proceeding pending or threatened for the total or
partial condemnation of the Mortgaged Property;
(vii) The Mortgaged Property is free and clear of all
mechanics' and materialmen's liens or liens in the nature thereof;
provided, however, that this warranty shall be deemed not to have been
made at the time of the initial issuance of the Certificates if a title
policy
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affording, in substance, the same protection afforded by this warranty
is furnished to the Trustee by the Seller;
(viii) Except for Mortgage Loans secured by Co-op Shares and
Mortgage Loans secured by residential long-term leases, the Mortgaged
Property consists of a fee simple estate in real property; all of the
improvements which are included for the purpose of determining the
appraised value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property and no
improvements on adjoining properties encroach upon the Mortgaged
Property (unless insured against under the related title insurance
policy); and to the best of the Seller's knowledge, the Mortgaged
Property and all improvements thereon comply with all requirements of
any applicable zoning and subdivision laws and ordinances;
(ix) The Mortgage Loan meets, or is exempt from, applicable
state or federal laws, regulations and other requirements, pertaining to
usury, and the Mortgage Loan is not usurious;
(x) To the best of the Seller's knowledge, all inspections,
licenses and certificates required to be made or issued with respect to
all occupied portions of the Mortgaged Property and, with respect to the
use and occupancy of the same, including, but not limited to,
certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities;
(xi) All payments required to be made up to the Due Date
immediately preceding the Cut-Off Date for such Mortgage Loan under the
terms of the related Mortgage Note have been made and no Mortgage Loan
had more than one delinquency in the 12 months preceding the Cut-Off
Date;
(xii) The Mortgage Note, the related Mortgage and other
agreements executed in connection therewith are genuine, and each is the
legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law); and, to the best of the Seller's
knowledge, all parties to the Mortgage Note and the Mortgage had legal
capacity to execute the Mortgage Note and the Mortgage and each Mortgage
Note and Mortgage has been duly and properly executed by the Mortgagor;
(xiii) Each Mortgage Loan at the time it was originated
complied in all material respects with applicable federal, state and
local laws including, without limitation, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity, predatory and abusive lending laws and disclosure laws;
(xiv) The proceeds of the Mortgage Loans have been fully
disbursed, there is no requirement for future advances thereunder and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have
been complied with (except for escrow funds for exterior items which
could not be
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completed due to weather and escrow funds for the completion of swimming
pools); and all costs, fees and expenses incurred in making, closing or
recording the Mortgage Loan have been paid, except recording fees with
respect to Mortgages not recorded as of the Closing Date;
(xv) The Mortgage Loan (except any Mortgage Loan secured by a
Mortgaged Property located in any jurisdiction, as to which an opinion
of counsel of the type customarily rendered in such jurisdiction in lieu
of title insurance is instead received) is covered by an American Land
Title Association mortgagee title insurance policy or other generally
acceptable form of policy or insurance acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac, issued by a title insurer acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac insuring the originator, its successors and assigns, as to
the first priority lien of the Mortgage in the original principal amount
of the Mortgage Loan and subject only to (A) the lien of current real
property taxes and assessments not yet due and payable, (B) covenants,
conditions and restrictions, rights of way, easements and other matters
of public record as of the date of recording of such Mortgage acceptable
to mortgage lending institutions in the area in which the Mortgaged
Property is located or specifically referred to in the appraisal
performed in connection with the origination of the related Mortgage
Loan, (C) liens created pursuant to any federal, state or local law,
regulation or ordinance affording liens for the costs of clean-up of
hazardous substances or hazardous wastes or for other environmental
protection purposes and (D) such other matters to which like properties
are commonly subject which do not individually, or in the aggregate,
materially interfere with the benefits of the security intended to be
provided by the Mortgage; the Seller is the sole insured of such
mortgagee title insurance policy, the assignment to the Trustee of the
Seller's interest in such mortgagee title insurance policy does not
require any consent of or notification to the insurer which has not been
obtained or made, such mortgagee title insurance policy is in full force
and effect and will be in full force and effect and inure to the benefit
of the Trustee, no claims have been made under such mortgagee title
insurance policy, and no prior holder of the related Mortgage, including
the Seller, has done, by act or omission, anything which would impair
the coverage of such mortgagee title insurance policy;
(xvi) The Mortgaged Property securing each Mortgage Loan is
insured by an insurer acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac against
loss by fire and such hazards as are covered under a standard extended
coverage endorsement, in an amount which is not less than the lesser of
100% of the insurable value of the Mortgaged Property and the
outstanding principal balance of the Mortgage Loan, but in no event less
than the minimum amount necessary to fully compensate for any damage or
loss on a replacement cost basis; if the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a
blanket policy for the project; if upon origination of the Mortgage
Loan, the improvements on the Mortgaged Property were in an area
identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards, a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of
(A) the outstanding principal balance of the Mortgage Loan, (B) the full
insurable value of the Mortgaged Property and (C) the maximum amount of
insurance which was available under the National Flood Insurance Act
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of 1968, as amended; and each Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and
expense;
(xvii) To the best of the Seller's knowledge, there is no
default, breach, violation or event of acceleration existing under the
Mortgage or the related Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of
acceleration; the Seller has not waived any default, breach, violation
or event of acceleration; and no foreclosure action is currently
threatened or has been commenced with respect to the Mortgage Loan;
(xviii) No Mortgage Note or Mortgage is subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note
or Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or Mortgage unenforceable, in whole or in part, or subject
it to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto;
(xix) Each Mortgage Note is payable in monthly payments,
resulting in complete amortization of the Mortgage Loan over a term of
not more than ___ months;
(xx) Each Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of
the benefits of the security, including realization by judicial
foreclosure (subject to any limitation arising from any bankruptcy,
insolvency or other law for the relief of debtors), and there is no
homestead or other exemption available to the Mortgagor which would
interfere with such right of foreclosure;
(xxi) To the best of the Seller's knowledge, no Mortgagor is a
debtor in any state or federal bankruptcy or insolvency proceeding;
(xxii) Each Mortgaged Property is located in the United States
and consists of a one- to four-unit residential property, which may
include a detached home, townhouse, condominium unit or a unit in a
planned unit development or, in the case of Mortgage Loans secured by
Co-op Shares, leases or occupancy agreements;
(xxiii) The Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code;
(xxiv) With respect to each Mortgage where a lost note
affidavit has been delivered to the Trustee in place of the related
Mortgage Note, the related Mortgage Note is no longer in existence;
(xxv) In the event that the Mortgagor is an inter vivos
"living" trust, (i) such trust is in compliance with ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac standards for inter vivos trusts and (ii) holding title to
the Mortgaged Property in such trust will not diminish any rights as a
creditor including the right to full title to the Mortgaged Property in
the event foreclosure proceedings are initiated;
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(xxvi) If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without
the lessor's consent and the acquisition by the holder of the Mortgage
of the rights of the lessee upon foreclosure or assignment in lieu of
foreclosure or provide the holder of the Mortgage with substantially
similar protections; (3) the terms of such lease do not (a) allow the
termination thereof upon the lessee's default without the holder of the
Mortgage being entitled to receive written notice of, and opportunity to
cure, such default, (b) allow the termination of the lease in the event
of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving
proceeds of insurance) under the hazard insurance policy or policies
relating to the Mortgaged Property or (d) permit any increase in rent
other than pre-established increases set forth in the lease; (4) the
original term of such lease is not less than 15 years; (5) the term of
such lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in
a jurisdiction in which the use of leasehold estates in transferring
ownership in residential properties is a widely accepted practice; and
(xxvii) No Mortgage Loan is a "high cost" loan as defined under
any federal, state or local law applicable to such Mortgage Loan at the
time of its origination.
Notwithstanding the foregoing, no representations or warranties
are made by the Seller as to the environmental condition of any Mortgaged
Property; the absence, presence or effect of hazardous wastes or hazardous
substances on any Mortgaged Property; any casualty resulting from the presence
or effect of hazardous wastes or hazardous substances on, near or emanating from
any Mortgaged Property; the impact on Certificateholders of any environmental
condition or presence of any hazardous substance on or near any Mortgaged
Property; or the compliance of any Mortgaged Property with any environmental
laws, nor is any agent, person or entity otherwise affiliated with the Seller
authorized or able to make any such representation, warranty or assumption of
liability relative to any Mortgaged Property. In addition, no representations or
warranties are made by the Seller with respect to the absence or effect of fraud
in the origination of any Mortgage Loan.
It is understood and agreed that the representations and
warranties set forth in this Section 2.03(b) shall survive delivery of the
respective Owner Mortgage Loan Files (and Retained Mortgage Loan Files, if
applicable) to the Custodian and shall inure to the benefit of the Trustee
notwithstanding any restrictive or qualified endorsement or assignment.
(c) Upon discovery by either the Seller, the Master
Servicer, the Trustee or the Custodian that any of the representations and
warranties made in subsection (b) above is not accurate (referred to herein
as a "breach") and, except for a breach of the representation and warranty
set forth in subsection (b)(i), where such breach is a result of the Cut-Off
Date Principal Balance of a Mortgage Loan being greater, by $5,000 or
greater, than the Cut-Off Date Principal Balance of such Mortgage Loan
indicated on the Mortgage Loan Schedule, that such breach materially and
adversely affects the interests of the Certificateholders in the related
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties (any Custodian being so obligated under a
Custodial Agreement). Within 60 days of the earlier of its discovery or its
receipt of notice of any such breach, the Seller shall cure such
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breach in all material respects or shall either (i) repurchase the Mortgage
Loan or any property acquired in respect thereof from the Trust Estate at a
price equal to (A) 100% of the unpaid principal balance of such Mortgage Loan
plus (B) accrued interest at the Net Mortgage Interest Rate for such Mortgage
Loan through the last day of the month in which such repurchase took place or
(ii) if within two years of the Startup Day, or such other period permitted
by the REMIC Provisions, substitute for such Mortgage Loan in the manner
described in Section 2.02. In addition to the foregoing, if a breach of the
representation set forth in clause (b)(xiii) of this Section 2.03 occurs as a
result of a violation of an applicable predatory or abusive lending law, the
Seller shall reimburse the Trust for all costs and damages including, but not
limited to, reasonable attorneys' fees and costs, incurred by the Trust as a
result of the violation of such law (such amount, the "Reimbursement
Amount"). The purchase price of any repurchase described in this paragraph,
the Substitution Principal Amount, if any, plus accrued interest thereon and
the other amounts referred to in Section 2.02, and any Reimbursement Amount
shall be deposited in the Certificate Account. It is understood and agreed,
except with respect to the second preceding sentence, that the obligation of
the Seller to repurchase or substitute for any Mortgage Loan or property as
to which such a breach has occurred and is continuing shall constitute the
sole remedy respecting such breach available to Certificateholders or the
Trustee on behalf of Certificateholders, and such obligation shall survive
until termination of the Trust Estate hereunder.
Section 2.04 Execution and Delivery of Certificates.
The Trustee acknowledges the assignment to it of the Mortgage
Loans and acknowledges the delivery of the Owner Mortgage Loan Files to the
Custodian, on behalf of the Trustee, and, concurrently with such delivery, has
executed and delivered to or upon the order of the Seller, in exchange for the
Mortgage Loans, together with all other assets included in the definition of
"Trust Estate," receipt of which is hereby acknowledged, Certificates in
authorized denominations which evidence ownership of the entire Trust Estate.
Section 2.05 Designation of Certificates; Designation of
Startup Day and Latest Possible Maturity Date.
The Seller hereby designates the Classes of Class A Certificates
(other than the Class A-R Certificate) and the Classes of Class B Certificates
as classes of "regular interests" and the Class A-R Certificate as the single
class of "residual interest" in the REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively. The Closing Date is hereby designated
as the "Startup Day" of the REMIC within the meaning of Code Section 860G(a)(9).
The "latest possible maturity date" of the regular interests in the REMIC is
September 25, 2018 for purposes of Code Section 860G(a)(1).
Section 2.06 Optional Substitution of Mortgage Loans.
During the three-month period beginning on the Startup Date, the
Seller shall have the right, but not the obligation, in its sole discretion for
any reason, to substitute for any Mortgage Loan a Substitute Mortgage Loan
meeting the requirements of Section 2.02. Any such substitution shall be carried
out in the manner described in Section 2.02. The Substitution
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Principal Amount, if any, plus accrued interest thereon and the other amounts
referred to in Section 2.02, shall be deposited in the Certificate Account.
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ARTICLE III
ADMINISTRATION OF THE TRUST ESTATE; SERVICING
OF THE MORTGAGE LOANS
Section 3.01 Certificate Account.
(a) The Master Servicer shall establish and maintain a
Certificate Account for the deposit of funds received by the Master Servicer
with respect to the Mortgage Loans serviced by each Servicer pursuant to each
of the Servicing Agreements. Such account shall be maintained as an Eligible
Account. The Master Servicer shall give notice to each Servicer and the
Seller of the location of the Certificate Account and of any change in the
location thereof.
(b) The Master Servicer shall deposit into the Certificate
Account on the day of receipt thereof all amounts received by it from any
Servicer pursuant to any of the Servicing Agreements and shall, in addition,
deposit into the Certificate Account the following amounts, in the case of
amounts specified in clause (i), not later than the Distribution Date on
which such amounts are required to be distributed to Certificateholders and,
in the case of the amounts specified in clause (ii), not later than the
Business Day next following the day of receipt and posting by the Master
Servicer:
(i) Periodic Advances pursuant to Section 3.03(a) made by
the Master Servicer or the Trustee, if any and any amounts deemed
received by the Master Servicer pursuant to Section 3.01(d); and
(ii) in the case of any Mortgage Loan that is repurchased by
the Seller pursuant to Section 2.02, 2.03 or 3.08 or that is auctioned
by the Master Servicer pursuant to Section 3.08 or purchased by the
Master Servicer pursuant to Section 3.08 or 9.01, the purchase price
therefor or, where applicable, any Substitution Principal Amount and any
amounts received in respect of the interest portion of unreimbursed
Periodic Advances.
(c) The Master Servicer shall cause the funds in the
Certificate Account to be invested in Eligible Investments. No such Eligible
Investments will be sold or disposed of at a gain prior to maturity unless
the Master Servicer has received an Opinion of Counsel or other evidence
satisfactory to it that such sale or disposition will not cause the Trust
Estate to be subject to Prohibited Transactions Tax, otherwise subject the
Trust Estate to tax, or cause the Trust Estate to fail to qualify as a REMIC
while any Certificates are outstanding. Any amounts deposited in the
Certificate Account prior to the Distribution Date shall be invested for the
account of the Master Servicer and any investment income thereon shall be
additional compensation to the Master Servicer for services rendered under
this Agreement. The amount of any losses incurred in respect of any such
investments shall be deposited in the Certificate Account by the Master
Servicer out of its own funds immediately as realized, without any right of
reimbursement therefor from the Trust Estate.
(d) For purposes of this Agreement, the Master Servicer will
be deemed to have received from a Servicer on the applicable Remittance Date
for such funds all amounts
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deposited by such Servicer into the Custodial P&I Account maintained in
accordance with the applicable Servicing Agreement, if such Custodial P&I
Account is not an Eligible Account as defined in this Agreement, to the
extent such amounts are not actually received by the Master Servicer on such
Remittance Date as a result of the bankruptcy, insolvency, receivership or
other financial distress of the depository institution in which such
Custodial P&I Account is being held. To the extent that amounts so deemed to
have been received by the Master Servicer are subsequently remitted to the
Master Servicer, the Master Servicer shall be entitled to retain such
amounts.
Section 3.02 Permitted Withdrawals from the Certificate Account.
(a) The Master Servicer may, from time to time, make
withdrawals from the Certificate Account for the following purposes (limited,
in the case of Servicer reimbursements, to cases where funds in the
respective Custodial P&I Account are not sufficient therefor):
(i) to reimburse the Master Servicer, the Trustee or any
Servicer for Periodic Advances made by the Master Servicer or the
Trustee pursuant to Section 3.03(a) or any Servicer pursuant to any
Servicing Agreement with respect to previous Distribution Dates, such
right to reimbursement pursuant to this subclause (i) being limited to
amounts received on or in respect of particular Mortgage Loans
(including, for this purpose, Liquidation Proceeds, REO Proceeds and
proceeds from the purchase, sale, repurchase or substitution of Mortgage
Loans pursuant to Section 2.02, 2.03, 2.06, 3.08 or 9.01) respecting
which any such Periodic Advance was made;
(ii) to reimburse any Servicer, the Master Servicer or the
Trustee for any Periodic Advances determined in good faith to have
become Nonrecoverable Advances provided, however, that any portion of
Nonrecoverable Advances representing Fixed Retained Yield shall be
reimbursable only from amounts constituting Fixed Retained Yield and not
from the assets of the Trust Estate;
(iii) to reimburse the Master Servicer or any Servicer from
Liquidation Proceeds for Liquidation Expenses and for amounts expended
by the Master Servicer or any Servicer pursuant hereto or to any
Servicing Agreement, respectively, in good faith in connection with the
restoration of damaged property or for foreclosure expenses;
(iv) from any Mortgagor payment on account of interest or
other recovery (including Net REO Proceeds) with respect to a particular
Mortgage Loan, to pay the Master Servicing Fee with respect to such
Mortgage Loan to the Master Servicer;
(v) to reimburse the Master Servicer, any Servicer or the
Trustee (or, in certain cases, the Seller) for expenses incurred by it
(including taxes paid on behalf of the Trust Estate) and recoverable by
or reimbursable to it pursuant to Section 3.03(c), 3.03(d) or 6.03 or
the second sentence of Section 8.13(a) or pursuant to such Servicer's
Servicing Agreement, provided such expenses are "unanticipated" within
the meaning of the REMIC Provisions;
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(vi) to pay to the Seller or other purchaser with respect to
each Mortgage Loan or property acquired in respect thereof that has been
repurchased or replaced pursuant to Section 2.02, 2.03 or 2.06 or
auctioned pursuant to Section 3.08 or to pay to the Master Servicer with
respect to each Mortgage Loan or property acquired in respect thereof
that has been purchased pursuant to Section 3.08 or 9.01, all amounts
received thereon and not required to be distributed as of the date on
which the related repurchase or purchase price or Scheduled Principal
Balance was determined;
(vii) to remit funds to the Paying Agent in the amounts and in
the manner provided for herein;
(viii) to pay to the Master Servicer any interest earned on or
investment income with respect to funds in the Certificate Account;
(ix) to pay to the Master Servicer or any Servicer out of
Liquidation Proceeds allocable to interest the amount of any unpaid
Master Servicing Fee or Servicing Fee (as adjusted pursuant to the
related Servicing Agreement) and any unpaid assumption fees, late
payment charges or other Mortgagor charges on the related Mortgage Loan;
(x) to pay to the Master Servicer as additional master
servicing compensation any Liquidation Profits which a Servicer is not
entitled to pursuant to the applicable Servicing Agreement;
(xi) to withdraw from the Certificate Account any amount
deposited in the Certificate Account that was not required to be
deposited therein;
(xii) to clear and terminate the Certificate Account pursuant
to Section 9.01; and
(xiii) to pay to WFHM from any Mortgagor payment on account of
interest or other recovery (including Net REO Proceeds) with respect to
a particular Mortgage Loan, the Fixed Retained Yield, if any, with
respect to such Mortgage Loan; provided, however, that with respect to
any payment of interest received by the Master Servicer in respect of a
Mortgage Loan (whether paid by the Mortgagor or received as Liquidation
Proceeds, Insurance Proceeds or otherwise) which is less than the full
amount of interest then due with respect to such Mortgage Loan, only
that portion of such payment of interest that bears the same
relationship to the total amount of such payment of interest as the
Fixed Retained Yield Rate, if any, in respect of such Mortgage Loan
bears to the Mortgage Interest Rate shall be allocated to the Fixed
Retained Yield with respect thereto.
(b) The Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any payment to and withdrawal from the Certificate Account.
Section 3.03 Advances by Master Servicer and Trustee.
(a) In the event an Other Servicer fails to make any
required Periodic Advances of principal and interest on a Mortgage Loan as
required by the related Other Servicing Agreement prior to the Distribution
Date occurring in the month during which such
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Periodic Advance is due, the Master Servicer shall make Periodic Advances to
the extent provided hereby. In the event WFHM fails to make any required
Periodic Advances of principal and interest on a Mortgage Loan as required by
the WFHM Servicing Agreement prior to the Distribution Date occurring in the
month during which such Periodic Advance is due, the Trustee shall, to the
extent required by Section 8.14, make such Periodic Advance to the extent
provided hereby, provided that the Trustee has previously received the
certificate of the Master Servicer described in the following sentence. The
Master Servicer shall certify to the Trustee with respect to any such
Distribution Date (i) the amount of Periodic Advances required of WFHM or
such Other Servicer, as the case may be, (ii) the amount actually advanced by
WFHM or such Other Servicer, (iii) the amount that the Trustee or Master
Servicer is required to advance hereunder and (iv) whether the Master
Servicer has determined that it reasonably believes that such Periodic
Advance is a Nonrecoverable Advance. Amounts advanced by the Trustee or
Master Servicer shall be deposited in the Certificate Account on the related
Distribution Date. Notwithstanding the foregoing, neither the Master Servicer
nor the Trustee will be obligated to make a Periodic Advance that it
reasonably believes to be a Nonrecoverable Advance. The Trustee may
conclusively rely for any determination to be made by it hereunder upon the
determination of the Master Servicer as set forth in its certificate.
(b) To the extent an Other Servicer fails to make an advance
on account of the taxes or insurance premiums with respect to a Mortgage Loan
required pursuant to the related Other Servicing Agreement, the Master
Servicer shall, if the Master Servicer knows of such failure of the Servicer,
advance such funds and take such steps as are necessary to pay such taxes or
insurance premiums. To the extent WFHM fails to make an advance on account of
the taxes or insurance premiums with respect to a Mortgage Loan required
pursuant to the WFHM Servicing Agreement, the Master Servicer shall, if the
Master Servicer knows of such failure of WFHM, certify to the Trustee that
such failure has occurred. Upon receipt of such certification, the Trustee
shall advance such funds and take such steps as are necessary to pay such
taxes or insurance premiums.
(c) The Master Servicer and the Trustee shall each be
entitled to be reimbursed from the Certificate Account for any Periodic
Advance made by it under Section 3.03(a) to the extent described in Section
3.02(a)(i) and (a)(ii). The Master Servicer and the Trustee shall be entitled
to be reimbursed pursuant to Section 3.02(a)(v) for any advance by it
pursuant to Section 3.03(b). The Master Servicer shall diligently pursue
restoration of such amount to the Certificate Account from the related
Servicer. The Master Servicer shall, to the extent it has not already done
so, upon the request of the Trustee, withdraw from the Certificate Account
and remit to the Trustee any amounts to which the Trustee is entitled as
reimbursement pursuant to Section 3.02 (a)(i), (ii) and (v).
(d) Except as provided in Section 3.03(a) and (b), neither
the Master Servicer nor the Trustee shall be required to pay or advance any
amount which any Servicer was required, but failed, to deposit in the
Certificate Account.
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Section 3.04 Custodian to Cooperate; Release of Owner Mortgage
Loan Files and Retained Mortgage Loan Files.
In connection with the deposit by a Servicer into the
Certificate Account of the proceeds from a Liquidated Loan or of a Prepayment in
Full, the Master Servicer or applicable Servicer shall confirm to the Trustee
that all amounts required to be remitted to the Certificate Account in
connection with such Mortgage Loan have been so deposited, and the Master
Servicer or applicable Servicer shall deliver two copies of such Request for
Release to the Custodian. The Custodian shall, within five Business Days of its
receipt of such a Request for Release, release the related Owner Mortgage Loan
File (and Retained Mortgage Loan File, if applicable) to the Master Servicer or
such Servicer, as requested by the Master Servicer or such Servicer. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account.
From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including but not limited to, collection under
any insurance policies, or to effect a partial release of any Mortgaged Property
from the lien of the Mortgage, the Servicer of such Mortgage Loan shall deliver
to the Master Servicer or Custodian two copies of a Request for Release in hard
copy or in electronic format acceptable to the Custodian. Upon the Master
Servicer's receipt of any such Request for Release, the Master Servicer shall
promptly forward such request in hard copy or in electronic format acceptable to
the Custodian. The Custodian shall, within five Business Days, release the
related Owner Mortgage Loan File (and Retained Mortgage Loan File, if
applicable) to the Master Servicer or such Servicer. Any such Request for
Release shall obligate the Master Servicer or such Servicer, as the case may be,
to return the Owner Mortgage Loan File (and Retained Mortgage Loan File, if
applicable) to the Custodian by the twenty-first day following the release
thereof, unless (i) the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Certificate
Account or (ii) the Owner Mortgage Loan File, Retained Mortgage Loan File, if
applicable, or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially. Upon receipt of two
copies of a Request for Release stating that such Mortgage Loan was liquidated
and that all amounts received or to be received in connection with such
liquidation which are required to be deposited into the Certificate Account have
been so deposited, or that such Mortgage Loan has become an REO Mortgage Loan,
the Custodian shall amend its records.
Upon written certification of the Master Servicer or the
Servicer pursuant to clause (ii) of the preceding paragraph, the Trustee shall
execute and deliver to the Master Servicer or such Servicer, as directed by the
Master Servicer, court pleadings, requests for trustee's sale or other documents
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity. Each such certification shall
include a request that such pleadings or documents be executed by the Trustee
and a statement as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee will not invalidate or
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otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure proceeding or trustee's sale.
Section 3.05 Reports to the Trustee; Annual Compliance
Statements.
(a) Not later than 15 days after each Distribution Date, the
Master Servicer shall deliver to the Trustee a statement setting forth the
status of the Certificate Account as of the close of business on such
Distribution Date stating that all distributions required to be made by the
Master Servicer under this Agreement have been made (or, if any required
distribution has not been made by the Master Servicer, specifying the nature
and status thereof) and showing, for the period covered by such statement,
the aggregate amount of deposits into and withdrawals from such account for
each category of deposit and withdrawal specified in Sections 3.01 and 3.02.
Such statement may be in the form of the then current ▇▇▇▇▇▇ ▇▇▇ monthly
accounting report for its Guaranteed Mortgage Pass-Through Program with
appropriate additions and changes, and shall also include information as to
the aggregate unpaid principal balance of all of the Mortgage Loans as of the
close of business as of the last day of the calendar month immediately
preceding such Distribution Date. Copies of such statement shall be provided
by the Trustee to any Certificateholder upon written request, provided such
statement is delivered, or caused to be delivered, by the Master Servicer to
the Trustee. Not later than 15 days after each Distribution Date, the Master
Servicer shall deliver to the Trustee a report identifying (i) all requests
made by Servicers for the release of documents by the Custodian during the
immediately preceding calendar month and (ii) all documents released by the
Custodian during the immediately preceding calendar month.
(b) The Master Servicer shall deliver to the Trustee on or
before April 30 of each year, a certificate signed by an officer of the
Master Servicer, certifying that (i) such officer has reviewed the activities
of the Master Servicer during the preceding calendar year or portion thereof
and its performance under this agreement and (ii) to the best of such
officer's knowledge, based on such review, the Master Servicer has performed
and fulfilled its duties, responsibilities and obligations under this
agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such officer and the
nature and status thereof, and, (iii) (A) the Master Servicer has received
from each Servicer any financial statements, officer's certificates,
accountant's statements or other information required to be provided to the
Master Servicer pursuant to the related Servicing Agreement and (B) to the
best of such officer's knowledge, based on a review of the information
provided to the Master Servicer by each Servicer as described in (iii)(A)
above, each Servicer has performed and fulfilled its duties, responsibilities
and obligations under the related Servicing Agreement in all material
respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying
each such default known to such officer and the nature and status thereof.
Copies of such officers' certificate shall be provided by the Trustee to any
Certificateholder upon written request provided such certificate is
delivered, or caused to be delivered, by the Master Servicer to the Trustee.
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Section 3.06 Title, Management and Disposition of Any REO
Mortgage Loan.
The Master Servicer shall ensure that each REO Mortgage Loan is
administered by the related Servicer at all times so that it qualifies as
"foreclosure property" under the REMIC Provisions and that it does not earn any
"net income from foreclosure property" which is subject to tax under the REMIC
Provisions. In the event that a Servicer is unable to dispose of any REO
Mortgage Loan within the period mandated by each of the Servicing Agreements,
the Master Servicer shall monitor such Servicer to verify that such REO Mortgage
Loan is auctioned to the highest bidder within the period so specified. In the
event of any such sale of a REO Mortgage Loan, the Custodian shall, at the
written request of the Master Servicer and upon being supported with appropriate
forms therefor, within five Business Days of the deposit by the Master Servicer
of the proceeds of such sale or auction into the Certificate Account, release or
cause to be released to the entity identified by the Master Servicer the related
Owner Mortgage Loan File, Retained Mortgage Loan File, if applicable, and
Servicer Mortgage Loan File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary to
vest in the auction purchaser title to the REO Mortgage Loan and the Custodian
shall have no further responsibility with regard to such Owner Mortgage Loan
File, Retained Mortgage Loan File, if applicable, or Servicer Mortgage Loan
File. Neither the Trustee, the Master Servicer nor any Servicer, acting on
behalf of the Trust Estate, shall provide financing from the Trust Estate to any
purchaser of an REO Mortgage Loan.
Section 3.07 Amendments to Servicing Agreements,
Modification of Standard Provisions.
(a) Subject to the prior written consent of the Trustee
pursuant to Section 3.07(b), the Master Servicer from time to time may, to
the extent permitted by the applicable Servicing Agreement, make such
modifications and amendments to such Servicing Agreement as the Master
Servicer deems necessary or appropriate to confirm or carry out more fully
the intent and purpose of such Servicing Agreement and the duties,
responsibilities and obligations to be performed by the Servicer thereunder.
Such modifications may only be made if they are consistent with the REMIC
Provisions, as evidenced by an Opinion of Counsel. Prior to the issuance of
any modification or amendment, the Master Servicer shall deliver to the
Trustee such Opinion of Counsel and an Officer's Certificate setting forth
(i) the provision that is to be modified or amended, (ii) the modification or
amendment that the Master Servicer desires to issue and (iii) the reason or
reasons for such proposed amendment or modification.
(b) The Trustee shall consent to any amendment or supplement
to a Servicing Agreement proposed by the Master Servicer pursuant to Section
3.07(a), which consent and amendment shall not require the consent of any
Certificateholder if it is (i) for the purpose of curing any mistake or
ambiguity or to further effect or protect the rights of the
Certificateholders or (ii) for any other purpose, provided such amendment or
supplement for such other purpose cannot reasonably be expected to adversely
affect Certificateholders. The lack of reasonable expectation of an adverse
effect on Certificateholders may be established through the delivery to the
Trustee of (i) an Opinion of Counsel to such effect or (ii) written
notification from each Rating Agency to the effect that such amendment or
supplement will not result in reduction of the current rating assigned by
that Rating Agency to the Certificates.
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Notwithstanding the two immediately preceding sentences, the Trustee may, in
its discretion, decline to enter into or consent to any such supplement or
amendment if its own rights, duties or immunities shall be adversely
affected.
(c)(i) Notwithstanding anything to the contrary in this
Section 3.07, the Master Servicer from time to time may, without the consent of
any Certificateholder or the Trustee, enter into an amendment (A) to an Other
Servicing Agreement for the purpose of (i) eliminating or reducing Month End
Interest and (ii) providing for the remittance of Full Unscheduled Principal
Receipts by the applicable Servicer to the Master Servicer not later than the
24th day of each month (or if such day is not a Business Day, on the previous
Business Day) or (B) to the WFHM Servicing Agreement for the purpose of changing
the applicable Remittance Date to the 18th day of each month (or if such day is
not a Business Day, on the previous Business Day).
(ii) The Master Servicer may direct WFHM to enter into an
amendment to the WFHM Servicing Agreement for the purposes described in Sections
3.07(c)(i)(B) and 10.01(b)(iii).
Section 3.08 Oversight of Servicing.
The Master Servicer shall supervise, monitor and oversee the
servicing of the Mortgage Loans by each Servicer and the performance by each
Servicer of all services, duties, responsibilities and obligations (including
the obligation to maintain an Errors and Omissions Policy and Fidelity Bond)
that are to be observed or performed by the Servicer under its respective
Servicing Agreement. In performing its obligations hereunder, the Master
Servicer shall act in a manner consistent with Accepted Master Servicing
Practices and with the Trustee's and the Certificateholders' reliance on the
Master Servicer, and in a manner consistent with the terms and provisions of any
insurance policy required to be maintained by the Master Servicer or any
Servicer pursuant to this Agreement or any Servicing Agreement. The Master
Servicer acknowledges that prior to taking certain actions required to service
the Mortgage Loans, each Servicing Agreement provides that the Servicer
thereunder must notify, consult with, obtain the consent of or otherwise follow
the instructions of the Master Servicer. The Master Servicer is also given
authority to waive compliance by a Servicer with certain provisions of its
Servicing Agreement. In each such instance, the Master Servicer shall promptly
instruct such Servicer or otherwise respond to such Servicer's request. In no
event will the Master Servicer instruct such Servicer to take any action, give
any consent to action by such Servicer or waive compliance by such Servicer with
any provision of such Servicer's Servicing Agreement if any resulting action or
failure to act would be inconsistent with the requirements of the Rating
Agencies that rated the Certificates or would otherwise have an adverse effect
on the Certificateholders. Any such action or failure to act shall be deemed to
have an adverse effect on the Certificateholders if such action or failure to
act either results in (i) the downgrading of the rating assigned by any Rating
Agency to the Certificates, (ii) the loss by the Trust Estate of REMIC status
for federal income tax purposes or (iii) the imposition of any Prohibited
Transaction Tax or any federal taxes on either the REMIC or the Trust Estate.
The Master Servicer shall have full power and authority in its sole discretion
to take any action with respect to the Trust Estate as may be necessary or
advisable to avoid the circumstances specified including clause (ii) or (iii) of
the preceding sentence.
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For the purposes of determining whether any modification of a
Mortgage Loan shall be permitted by the Master Servicer, such modification shall
be construed as a substitution of the modified Mortgage Loan for the Mortgage
Loan originally deposited in the Trust Estate if it would be a "significant
modification" within the meaning of Section 1.860G-2(b) of the regulations of
the U.S. Department of the Treasury. No modification shall be approved unless
(i) the modified Mortgage Loan would qualify as a Substitute Mortgage Loan under
Section 2.02 and (ii) with respect to any modification that occurs more than
three months after the Closing Date and is not the result of a default or a
reasonably foreseeable default under the Mortgage Loan, there is delivered to
the Trustee an Opinion of Counsel (at the expense of the party seeking to modify
the Mortgage Loan) to the effect that such modification would not be treated as
giving rise to a new debt instrument for federal income tax purposes as
described in the preceding sentence; provided, however, that no such Opinion of
Counsel need be delivered if the sole purpose of the modification is to reduce
the Monthly Payment on a Mortgage Loan as a result of a Curtailment such that
the Mortgage Loan is fully amortized by its original maturity date.
During the term of this Agreement, the Master Servicer shall
consult fully with each Servicer as may be necessary from time to time to
perform and carry out the Master Servicer's obligations hereunder and otherwise
exercise reasonable efforts to encourage such Servicer to perform and observe
the covenants, obligations and conditions to be performed or observed by it
under its Servicing Agreement.
The relationship of the Master Servicer to the Trustee under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
The Master Servicer shall administer the Trust Estate on behalf
of the Trustee and shall have full power and authority, acting alone or (subject
to Section 6.06) through one or more subcontractors, to do any and all things in
connection with such administration which it may deem necessary or desirable.
Upon the execution and delivery of this Agreement, and from time to time as may
be required thereafter, the Trustee shall furnish the Master Servicer or its
subcontractors with any powers of attorney and such other documents as may be
necessary or appropriate to enable the Master Servicer to carry out its
administrative duties hereunder.
The Seller shall have a limited option to repurchase any
defaulted Mortgage Loan or REO Mortgage Loan during the following time periods:
(i) beginning on the first day of the second month following the month in which
the Master Servicer has reported that a Servicer has initiated foreclosure
proceedings with respect to such a defaulted Mortgage Loan, with such repurchase
option expiring on the last day of such second following month; (ii) beginning
on the first day of the second month following the month in which the Master
Servicer has reported that such defaulted Mortgage Loan has become an REO
Mortgage Loan, with such repurchase option expiring on the last day of such
second following month; and (iii) beginning on the day on which a Servicer
accepts a contractual commitment by a third party to purchase the Mortgaged
Property related to the defaulted Mortgage Loan or REO Mortgage Loan, with such
repurchase option expiring on the earlier of the last day of the month in which
such contractual commitment was accepted by the Servicer or the day immediately
prior to the day on which the closing occurs with respect to such third party
purchase of the Mortgaged Property related to the defaulted Mortgage Loan or REO
Mortgage Loan. The Seller shall be entitled to repurchase at its option
III-9
any Mortgage Loan in the Trust Estate which, pursuant to paragraph 5(b) of the
Mortgage Loan Purchase Agreement, WFHM requests the Seller to repurchase and to
sell to WFHM to facilitate the exercise of WFHM's rights against the originator
or a prior holder of such Mortgage Loan. The purchase price for any Mortgage
Loan repurchased pursuant to this paragraph shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued interest thereon at the
Mortgage Interest Rate for such Mortgage Loan, through the last day of the month
in which such repurchase occurs. Upon the receipt of such purchase price, the
Master Servicer shall provide to the Trustee the certification required by
Section 3.04 and the Trustee and the Custodian, if any, shall promptly release
to the Seller the Owner Mortgage Loan File and Retained Mortgage Loan File, if
applicable, relating to the Mortgage Loan being repurchased.
In the event that (i) the Master Servicer determines at any time
that, notwithstanding the representations and warranties set forth in Section
2.03(b), any Mortgage Loan is not a "qualified mortgage" within the meaning of
Section 860G of the Code and (ii) the Master Servicer is unable to enforce the
obligation of the Seller to purchase such Mortgage Loan pursuant to Section 2.02
within two months of such determination, the Master Servicer shall cause such
Mortgage Loan to be auctioned to the highest bidder and sold out of the Trust
Estate no later than the date 90 days after such determination. In the event of
any such sale of a Mortgage Loan, the Custodian shall, at the written request of
the Master Servicer and upon being supported with appropriate forms therefor,
within five Business Days of the deposit by the Master Servicer of the proceeds
of such auction into the Certificate Account, release or cause to be released to
the entity identified by the Master Servicer the related Owner Mortgage Loan
File, Retained Mortgage Loan File, if applicable, and Servicer Mortgage Loan
File and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be necessary to vest in the auction
purchaser title to the Mortgage Loan and the Custodian shall have no further
responsibility with regard to such Owner Mortgage Loan File, Retained Mortgage
Loan File, if applicable, or Servicer Mortgage Loan File. Neither the Trustee,
the Custodian, the Master Servicer nor any Servicer, acting on behalf of the
Trustee, shall provide financing from the Trust Estate to any purchaser of a
Mortgage Loan.
The Master Servicer, on behalf of the Trustee, shall, pursuant
to the Servicing Agreements, object to the foreclosure upon, or other related
conversion of the ownership of, any Mortgaged Property by the related Servicer
if (i) the Master Servicer believes such Mortgaged Property may be contaminated
with or affected by hazardous wastes or hazardous substances or (ii) such
Servicer does not agree to administer such Mortgaged Property, once the related
Mortgage Loan becomes an REO Mortgage Loan, in a manner which would not result
in a federal tax being imposed upon the Trust Estate or the REMIC.
The Master Servicer may enter into a special servicing agreement
with an unaffiliated holder of 100% Percentage Interest of a Class of Class B
Certificates or a holder of a class of securities representing interests in the
Class B Certificates and/or other subordinated mortgage pass-through
certificates, such agreement to be substantially in the form of Exhibit M hereto
or subject to each Rating Agency's acknowledgment that the ratings of the
Certificates in effect immediately prior to the entering into of such agreement
would not be qualified, downgraded or withdrawn and the Certificates would not
be placed on credit review status (except for possible upgrading) as a result of
such agreement. Any such agreement may contain provisions whereby such holder
may instruct the Master Servicer to instruct a Servicer to the
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extent provided in the applicable Servicing Agreement to commence or delay
foreclosure proceedings with respect to delinquent Mortgage Loans and will
contain provisions for the deposit of cash by the holder that would be available
for distribution to Certificateholders if Liquidation Proceeds are less than
they otherwise may have been had the Servicer acted in accordance with its
normal procedures.
Section 3.09 Termination and Substitution of Servicing
Agreements.
Upon the occurrence of any event for which a Servicer may be
terminated pursuant to its Servicing Agreement, the Master Servicer shall
promptly deliver to the Seller and the Trustee an Officer's Certificate
certifying that an event has occurred which may justify termination of such
Servicing Agreement, describing the circumstances surrounding such event and
recommending what action should be taken by the Trustee with respect to such
Servicer. If the Master Servicer recommends that such Servicing Agreement be
terminated, the Master Servicer's certification must state that the breach is
material and not merely technical in nature. Upon written direction of the
Master Servicer, based upon such certification, the Trustee shall promptly
terminate such Servicing Agreement. Notwithstanding the foregoing, in the event
that (i) WFHM fails to make any advance, as a consequence of which the Trustee
is obligated to make an advance pursuant to Section 3.03 and (ii) the Trustee
provides WFHM written notice of the failure to make such advance and such
failure shall continue unremedied for a period of 15 days after receipt of such
notice, the Trustee shall terminate the WFHM Servicing Agreement without the
recommendation of the Master Servicer. The Master Servicer shall indemnify the
Trustee and hold it harmless from and against any and all claims, liabilities,
costs and expenses (including, without limitation, reasonable attorneys' fees)
arising out of, or assessed against the Trustee in connection with termination
of such Servicing Agreement at the direction of the Master Servicer. If the
Trustee terminates such Servicing Agreement, the Trustee may enter into a
substitute Servicing Agreement with the Master Servicer or, at the Master
Servicer's nomination, with another mortgage loan service company acceptable to
the Trustee, the Master Servicer and each Rating Agency under which the Master
Servicer or such substitute servicer, as the case may be, shall assume, satisfy,
perform and carry out all liabilities, duties, responsibilities and obligations
that are to be, or otherwise were to have been, satisfied, performed and carried
out by such Servicer under such terminated Servicing Agreement. Until such time
as the Trustee enters into a substitute servicing agreement with respect to the
Mortgage Loans previously serviced by such Servicer, the Master Servicer shall
assume, satisfy, perform and carry out all obligations which otherwise were to
have been satisfied, performed and carried out by such Servicer under its
terminated Servicing Agreement. However, in no event shall the Master Servicer
be deemed to have assumed the obligations of a Servicer to advance payments of
principal and interest on a delinquent Mortgage Loan in excess of the Master
Servicer's independent Periodic Advance obligation under Section 3.03 of this
Agreement. As compensation for the Master Servicer of any servicing obligations
fulfilled or assumed by the Master Servicer, the Master Servicer shall be
entitled to any servicing compensation to which a Servicer would have been
entitled if the Servicing Agreement with such Servicer had not been terminated.
III-11
Section 3.10 Application of Net Liquidation Proceeds.
For all purposes under this agreement, Net Liquidation Proceeds
received from a Servicer shall be allocated first to accrued and unpaid interest
on the related Mortgage Loan and then to the unpaid principal balance thereof.
Section 3.11 Act Reports.
The Master Servicer shall, on behalf of the Seller, make all
filings required to be made by the Seller with respect to the Class A
Certificates and the Class B-1, Class B-2 and Class B-3 Certificates pursuant to
the Securities Exchange Act of 1934, as amended. The Master Servicer shall file
directly with the Securities and Exchange Commission the certification required
under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, which shall be signed by a senior officer
in charge of the master servicing function of the Master Servicer.
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ARTICLE IV
DISTRIBUTIONS IN RESPECT OF CERTIFICATES;
PAYMENTS TO CERTIFICATEHOLDERS;
STATEMENTS AND REPORTS
Section 4.01 Distributions.
(a) On each Distribution Date, the Pool Distribution Amount
will be applied in the following amounts, to the extent the Pool Distribution
Amount is sufficient therefor, in the manner and in the order of priority as
follows:
first, to the Classes of Class A Certificates, pro rata, based
upon their respective Interest Accrual Amounts, in an aggregate amount up to the
Class A Interest Accrual Amount with respect to such Distribution Date;
second, to the Classes of Class A Certificates, pro rata, based
upon their respective Class A Unpaid Interest Shortfalls, in an aggregate amount
up to the Aggregate Class A Unpaid Interest Shortfall;
third, concurrently, to the Class A Certificates (other than the
Class A-PO Certificates) and the Class A-PO Certificates, pro rata, based on
their respective Class A Non-PO Optimal Principal Amount and Class A-PO Optimal
Principal Amount, (A) to the Class A Certificates (other than the Class A-PO
Certificates), in an aggregate amount up to the Class A Non-PO Optimal Principal
Amount, such distribution to be allocated among such Classes in accordance with
Section 4.01(b) or Section 4.01(c), as applicable, and (B) to the Class A-PO
Certificates in an amount up to the Class A-PO Optimal Principal Amount;
fourth, to the Class A-PO Certificates in an amount up to the
Class A-PO Deferred Amount from amounts otherwise distributable (without regard
to this Paragraph fourth) first to the Class B-6 Certificates pursuant to
Paragraph twenty-second below, second to the Class B-5 Certificates pursuant to
Paragraph nineteenth below, third to the Class B-4 Certificates pursuant to
Paragraph sixteenth below, fourth to the Class B-3 Certificates pursuant to
Paragraph thirteenth below, fifth to the Class B-2 Certificates pursuant to
Paragraph tenth below, and sixth to the Class B-1 Certificates pursuant to
Paragraph seventh below;
fifth, to the Class B-1 Certificates, in an amount up to the
Interest Accrual Amount for the Class B-1 Certificates with respect to such
Distribution Date;
sixth, to the Class B-1 Certificates in an amount up to the
Class B-1 Unpaid Interest Shortfall;
seventh, to the Class B-1 Certificates in an amount up to the
Class B-1 Optimal Principal Amount; provided, however, that the amount
distributable to the Class B-1 Certificates pursuant to this Paragraph seventh
will be reduced by the amount, if any, that would have been
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distributable to the Class B-1 Certificates hereunder used to pay the Class A-PO
Deferred Amount as provided in Paragraph fourth above;
eighth, to the Class B-2 Certificates, in an amount up to the
Interest Accrual Amount for the Class B-2 Certificates with respect to such
Distribution Date;
ninth, to the Class B-2 Certificates in an amount up to the
Class B-2 Unpaid Interest Shortfall;
tenth, to the Class B-2 Certificates in an amount up to the
Class B-2 Optimal Principal Amount; provided, however, that the amount
distributable to the Class B-2 Certificates pursuant to this Paragraph tenth
will be reduced by the amount, if any, that would have been distributable to the
Class B-2 Certificates hereunder used to pay the Class A-PO Deferred Amount as
provided in Paragraph fourth above;
eleventh, to the Class B-3 Certificates, in an amount up to the
Interest Accrual Amount for the Class B-3 Certificates with respect to such
Distribution Date;
twelfth, to the Class B-3 Certificates in an amount up to the
Class B-3 Unpaid Interest Shortfall;
thirteenth, to the Class B-3 Certificates in an amount up to the
Class B-3 Optimal Principal Amount; provided, however, that the amount
distributable to the Class B-3 Certificates pursuant to this Paragraph
thirteenth will be reduced by the amount, if any, that would have been
distributable to the Class B-3 Certificates hereunder used to pay the Class A-PO
Deferred Amount as provided in Paragraph fourth above;
fourteenth, to the Class B-4 Certificates in an amount up to the
Interest Accrual Amount for the Class B-4 Certificates with respect to such
Distribution Date;
fifteenth, to the Class B-4 Certificates in an amount up to the
Class B-4 Unpaid Interest Shortfall;
sixteenth, to the Class B-4 Certificates in an amount up to the
Class B-4 Optimal Principal Amount; provided, however, that the amount
distributable to the Class B-4 Certificates pursuant to this Paragraph sixteenth
will be reduced by the amount, if any, that would have been distributable to the
Class B-4 Certificates hereunder used to pay the Class A-PO Deferred Amount as
provided in Paragraph fourth above;
seventeenth, to the Class B-5 Certificates in an amount up to
the Interest Accrual Amount for the Class B-5 Certificates with respect to such
Distribution Date;
eighteenth, to the Class B-5 Certificates in an amount up to the
Class B-5 Unpaid Interest Shortfall;
nineteenth, to the Class B-5 Certificates in an amount up to the
Class B-5 Optimal Principal Amount; provided, however, that the amount
distributable to the Class B-5 Certificates pursuant to this Paragraph
nineteenth will be reduced by the amount, if any, that would have
IV-2
been distributable to the Class B-5 Certificates hereunder used to pay the Class
A-PO Deferred Amount as provided in Paragraph fourth above;
twentieth, to the Class B-6 Certificates in an amount up to the
Interest Accrual Amount for the Class B-6 Certificates with respect to such
Distribution Date;
twenty-first, to the Class B-6 Certificates in an amount up to
the Class B-6 Unpaid Interest Shortfall;
twenty-second, to the Class B-6 Certificates in an amount up to
the Class B-6 Optimal Principal Amount; provided, however, that the amount
distributable to the Class B-6 Certificates pursuant to this Paragraph
twenty-second will be reduced by the amount, if any, that would have been
distributable to the Class B-6 Certificates hereunder used to pay the Class A-PO
Deferred Amount as provided in Paragraph fourth above; and
twenty-third, to the Holder of the Class A-R Certificate, any
amounts remaining in the Payment Account.
Notwithstanding the foregoing, after the Principal Balance of
any Class (other than the Class A-R Certificate) has been reduced to zero, such
Class will be entitled to no further distributions of principal or interest
(including, without limitation, any Unpaid Interest Shortfalls).
On each Distribution Date, any Reimbursement Amount shall be
distributed sequentially to the Classes of Certificates then outstanding which
bore the loss to which such Reimbursement Amount relates beginning with the most
senior of such Class of Certificates, up to, with respect to each Class, the
amount of loss borne by such Class. Any Reimbursement Amount remaining after the
application described in the preceding sentence shall be included in the Pool
Distribution Amount.
With respect to any Distribution Date, the amount of the
Principal Adjustment, if any, attributable to any Class of Class B Certificates
will be allocated to the Classes of Class A Certificates (other than the Class
A-PO Certificates) and any Class of Class B Certificates with a lower numerical
designation pro rata based on their outstanding Principal Balances.
(b) On each Distribution Date occurring prior to the
Subordination Depletion Date, the Class A Non-PO Principal Distribution
Amount will be allocated among and distributed in reduction of the Principal
Balances of the Class A Non-PO Certificates sequentially as follows:
first, to the Class A-R Certificate; and
second, concurrently, as follows:
(i) ________________%, concurrently, to the Class A-1
and Class A-4 Certificates, pro rata; and
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(ii) ________________%, sequentially, to the Class A-2
and Class A-3 Certificates.
IV-4
(c) Notwithstanding the foregoing, on each Distribution Date
occurring on or subsequent to the Subordination Depletion Date, the Class A
Non-PO Principal Distribution Amount shall be distributed among the Class A
Certificates (other than the Class A-PO Certificates) and the Class A-PO
Certificates, pro rata, in accordance with their outstanding Principal
Balances without regard to either the proportions or the priorities set forth
in Section 4.01(b).
(d) (i) For purposes of determining whether the Classes of
Class B Certificates are eligible to receive distributions of principal with
respect to any Distribution Date, the following tests shall apply:
(A) if the Current Class B-1 Fractional Interest is less
than the Original Class B-1 Fractional Interest and the Class B-1
Principal Balance is greater than zero, the Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates shall not be eligible to
receive distributions of principal; or
(B) if the Current Class B-2 Fractional Interest is less
than the Original Class B-2 Fractional Interest and the Class B-2
Principal Balance is greater than zero, the Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates shall not be eligible to receive
distributions of principal; or
(C) if the Current Class B-3 Fractional Interest is less
than the Original Class B-3 Fractional Interest and the Class B-3
Principal Balance is greater than zero, the Class B-4, Class B-5 and
Class B-6 Certificates shall not be eligible to receive distributions of
principal; or
(D) if the Current Class B-4 Fractional Interest is less
than the Original Class B-4 Fractional Interest and the Class B-4
Principal Balance is greater than zero, the Class B-5 and Class B-6
Certificates shall not be eligible to receive distributions of
principal; or
(E) if the Current Class B-5 Fractional Interest is less
than the Original Class B-5 Fractional Interest and the Class B-5
Principal Balance is greater than zero, the Class B-6 Certificates shall
not be eligible to receive distributions of principal.
(ii) Notwithstanding the foregoing, if on any Distribution
Date the aggregate distributions to Holders of the Classes of Class B
Certificates entitled to receive distributions of principal would reduce the
Principal Balances of the Classes of Class B Certificates entitled to receive
distributions of principal below zero, first the Class B Prepayment Percentage
of any affected Class of Class B Certificates for such Distribution Date
beginning with the affected Class with the lowest numerical Class designation
and then, if necessary, the Class B Percentage of such Class of the Class B
Certificates for such Distribution Date shall be reduced to the respective
percentages necessary to bring the Principal Balance of such Class of Class B
Certificates to zero. The Class B Prepayment Percentages and the Class B
Percentages of the remaining Classes of Class B Certificates will be recomputed
substituting for the Subordinated Prepayment Percentage and Subordinated
Percentage in such computations the difference between (A) the Subordinated
Prepayment Percentage or Subordinated Percentage as the case
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may be, and (B) the percentages determined in accordance with the preceding
sentence necessary to bring the Principal Balances of the affected Classes of
Class B Certificates to zero; provided, however, that if the Principal Balances
of all the Classes of Class B Certificates eligible to receive distributions of
principal shall be reduced to zero on such Distribution Date, the Class B
Prepayment Percentage and the Class B Percentage of the Class of Class B
Certificates with the lowest numerical Class designation which would otherwise
be ineligible to receive distributions of principal in accordance with this
Section shall equal the remainder of the Subordinated Prepayment Percentage for
such Distribution Date minus the sum of the Class B Prepayment Percentages of
the Classes of Class B Certificates having lower numerical Class designations,
if any, and the remainder of the Subordinated Percentage for such Distribution
Date minus the sum of the Class B Percentages of the Classes of Class B
Certificates having lower numerical Class designations, if any, respectively.
Any entitlement of any Class of Class B Certificates to principal payments
solely pursuant to this clause (ii) shall not cause such Class to be regarded as
being eligible to receive principal distributions for the purpose of applying
the definition of its Class B Percentage or Class B Prepayment Percentage.
(e) On each Distribution Date other than the Final
Distribution Date (if such Final Distribution Date is in connection with a
purchase of the assets of the Trust Estate by the Seller), the Paying Agent
shall, on behalf of the Master Servicer, from funds remitted to it by the
Master Servicer, distribute to each Certificateholder of record on the
preceding Record Date (other than as provided in Section 9.01 respecting the
final distribution to Certificateholders or in the last paragraph of this
Section 4.01(f) respecting the final distribution in respect of any Class)
either in immediately available funds by wire transfer to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder holds Certificates having a Denomination
at least equal to that specified in Section 11.23, and has so notified the
Master Servicer or, if applicable, the Paying Agent at least seven Business
Days prior to the Distribution Date or, if such Holder holds Certificates
having, in the aggregate, a Denomination less than the requisite minimum
Denomination or if such Holder holds the Class A-R Certificate or has not so
notified the Paying Agent, by check mailed to such Holder at the address of
such Holder appearing in the Certificate Register, such Holder's share of the
Class A Distribution Amount with respect to each Class of Class A
Certificates and the Class B Distribution Amount with respect to each Class
of Class B Certificates.
In the event that, on any Distribution Date prior to the Final
Distribution Date, the Principal Balance of any Class of Class A Certificates
(other than the Class A-R Certificate) or the Principal Balance of any Class of
Class B Certificates would be reduced to zero, the Master Servicer shall, as
soon as practicable after the Determination Date relating to such Distribution
Date, send a notice to the Trustee. The Trustee will then send a notice to each
Certificateholder of such Class with a copy to the Certificate Registrar,
specifying that the final distribution with respect to such Class will be made
on such Distribution Date only upon the presentation and surrender of such
Certificateholder's Certificates at the office or agency of the Trustee therein
specified; provided, however, that the failure to give such notice will not
entitle a Certificateholder to any interest beyond the interest payable with
respect to such Distribution Date in accordance with Section 4.01(a).
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(f) The Paying Agent (or if no Paying Agent is appointed by
the Master Servicer, the Master Servicer) shall withhold or cause to be
withheld such amounts as may be required by the Code (giving full effect to
any exemptions from withholding and related certifications required to be
furnished by Certificateholders and any reductions to withholding by virtue
of any bilateral tax treaties and any applicable certification required to be
furnished by Certificateholders with respect thereto) from distributions to
be made to Persons other than U.S. Persons ("Non-U.S. Persons"). Amounts
withheld pursuant to this Section 4.01(f) shall be treated as having been
distributed to the related Certificateholder for all purposes of this
Agreement. For the purposes of this paragraph, a "U.S. Person" is a citizen
or resident of the United States, a corporation or partnership (unless, in
the case of a partnership, Treasury regulations are adopted that provide
otherwise) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia, including an entity treated as
a corporation or partnership for federal income tax purposes, an estate whose
income is subject to United States federal income tax regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more
such U.S. Persons have the authority to control all substantial decisions of
such trust (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to
be treated as U.S. Persons).
Section 4.02 Allocation of Realized Losses.
(a) With respect to any Distribution Date, the principal
portion of Realized Losses (other than Debt Service Reductions) will be
allocated as follows:
first, to the Class B-6 Certificates until the Class B-6
Principal Balance has been reduced to zero;
second, to the Class B-5 Certificates until the Class B-5
Principal Balance has been reduced to zero;
third, to the Class B-4 Certificates until the Class B-4
Principal Balance has been reduced to zero;
fourth, to the Class B-3 Certificates until the Class B-3
Principal Balance has been reduced to zero;
fifth, to the Class B-2 Certificates until the Class B-2
Principal Balance has been reduced to zero;
sixth, to the Class B-1 Certificates until the Class B-1
Principal Balance has been reduced to zero; and
seventh, concurrently, to the Class A Certificates (other than
the Class A-PO Certificates) and the Class A-PO Certificates, pro rata, based on
the Non-PO Fraction and the PO Fraction, respectively.
This allocation of Realized Losses will be effected through the
reduction of the applicable Class's Principal Balance.
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(b) Any Realized Losses allocated to a Class of Class A
Certificates or Class B Certificates pursuant to Section 4.02(a) shall be
allocated among the Certificates of such Class based on their Percentage
Interests.
(c) After the Class B Principal Balance has been reduced to
zero, the interest portion of Realized Losses will be allocated among the
outstanding Classes of Class A Certificates based on their Class A Interest
Percentages.
(d) Realized Losses allocated in accordance with this
Section 4.02 will be allocated as follows: (i) Liquidated Loan Losses on
Liquidated Loans for which the Liquidation Proceeds were received during, and
Bankruptcy Losses incurred in a period corresponding to, an Unscheduled
Principal Receipt Period for Full Unscheduled Principal Receipts that is a
Mid-Month Receipt Period will be allocated on the Determination Date in the
month following the month in which such Mid-Month Receipt Period ended and
(ii) Liquidated Loan Losses on Liquidated Loans for which the Liquidation
Proceeds were received during, and Bankruptcy Losses incurred in a period
corresponding to, an Unscheduled Principal Receipt Period for Full
Unscheduled Principal Receipts that is a Prior Month Receipt Period will be
allocated on the Determination Date in the second month following the month
which is such Prior Month Receipt Period.
Section 4.03 Paying Agent.
(a) The Master Servicer hereby appoints the Trustee as
initial Paying Agent to make distributions to Certificateholders and to
forward to Certificateholders the periodic statements and the annual
statements required by Section 4.04 as agent of the Master Servicer.
The Master Servicer may, at any time, remove or replace the
Paying Agent.
The Master Servicer shall cause any Paying Agent that is not the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent agrees with the Trustee that such Paying Agent shall:
(i) hold all amounts remitted to it by the Master Servicer
for distribution to Certificateholders in trust for the benefit of
Certificateholders until such amounts are distributed to
Certificateholders or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Master
Servicer in remitting any required amount; and
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all amounts held in trust by such Paying Agent.
(b) The Paying Agent shall establish and maintain a Payment
Account, which shall be a separate trust account and an Eligible Account, in
which the Master Servicer shall cause to be deposited from funds in the
Certificate Account or, to the extent required hereunder, from its own funds
(i) at or before 10:00 a.m., New York time, on the Business Day preceding
each Distribution Date, by wire transfer of immediately available funds, any
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Periodic Advance for such Distribution Date, pursuant to Section 3.03 and
(ii) at or before 10:00 a.m., New York time, on the Business Day preceding
each Distribution Date, by wire transfer of immediately available funds, an
amount equal to the Pool Distribution Amount. The Master Servicer may cause
the Paying Agent to invest the funds in the Payment Account. Any such
investment shall be in Eligible Investments, which shall mature not later
than the Business Day preceding the related Distribution Date (unless the
Eligible Investments are obligations of the Trustee or an affiliate of the
Trustee, in which case such Eligible Investments shall mature not later than
the Distribution Date), and shall not be sold or disposed of prior to
maturity. All income and gain realized from any such investment shall be for
the benefit of the Master Servicer and shall be subject to its withdrawal or
order from time to time. The amount of any losses incurred in respect of any
such investments shall be deposited in the Payment Account by the Master
Servicer out of its own funds immediately as realized. The Paying Agent may
withdraw from the Payment Account any amount deposited in the Payment Account
that was not required to be deposited therein and may clear and terminate the
Payment Account pursuant to Section 9.01.
Section 4.04 Statements to Certificateholders;
Reports to the Trustee and the Seller.
Concurrently with each distribution pursuant to Section 4.01(f),
the Master Servicer, or the Paying Agent appointed by the Master Servicer (upon
receipt of such statement from the Master Servicer), shall forward or cause to
be forwarded by mail to each Holder of a Certificate and the Seller a statement
setting forth:
(i) the amount of such distribution to Holders of each Class
of Class A Certificates allocable to principal, separately identifying
the aggregate amount of any Unscheduled Principal Receipts included
therein;
(ii) (a) the amount of such distribution to Holders of each
Class of Class A Certificates allocable to interest, (b) the amount of
the Current Class A Interest Distribution Amount allocated to each Class
of Class A Certificates, (c) any Class A Interest Shortfall Amounts
arising with respect to such Distribution Date and any remaining Class A
Unpaid Interest Shortfall with respect to each Class after giving effect
to such distribution, (d) the amount of any Non-Supported Interest
Shortfall allocated to each Class of Class A Certificates for such
Distribution Date and (e) the amount of any Relief Act Shortfall
allocated to each Class of Class A Certificates for such Distribution
Date;
(iii) the amount of such distribution to Holders of each Class
of Class B Certificates allocable to principal, separately identifying
the aggregate amount of any Unscheduled Principal Receipts included
therein;
(iv) (a) the amount of such distribution to Holders of each
Class of Class B Certificates allocable to interest, (b) the amount of
the Current Class B Interest Distribution Amount allocated to each Class
of Class B Certificates (c) any Class B Interest Shortfall Amounts
arising with respect to such Distribution Date and any remaining Class B
Unpaid Interest Shortfall with respect to each Class of Class B
Certificates after giving effect to such distribution, (d) the amount of
any Non-Supported Interest Shortfall allocated to each
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Class of Class B Certificates for such Distribution Date, and (e) the
amount of any Relief Act Shortfall allocated to each Class of Class B
Certificates for such Distribution Date;
(v) the amount of any Periodic Advance by any Servicer, the
Master Servicer or the Trustee pursuant to the Servicing Agreements or
this Agreement;
(vi) the number of Mortgage Loans outstanding as of the
preceding Determination Date;
(vii) the Class A Principal Balance, the Principal Balance of
each Class of Class A Certificates the Class B Principal Balance and the
Principal Balance of each Class of Class B Certificates as of the
following Determination Date after giving effect to the distributions of
principal made, and the principal portion of Realized Losses, if any,
allocated with respect to such Distribution Date;
(viii) the Adjusted Pool Amount, the Adjusted Pool Amount (PO
Portion), the Pool Scheduled Principal Balance of the Mortgage Loans for
such Distribution Date and the aggregate Scheduled Principal Balance of
the Discount Mortgage Loans for such Distribution Date;
(ix) the aggregate Scheduled Principal Balances of the
Mortgage Loans serviced by WFHM and, collectively, by the Other
Servicers as of such Distribution Date;
(x) the Class A Percentage for such Distribution Date;
(xi) the Class A Prepayment Percentage for such Distribution
Date;
(xii) the Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Percentages for such Distribution Date;
(xiii) the Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Prepayment Percentages for such Distribution Date;
(xiv) the number and aggregate principal balances of Mortgage
Loans delinquent (a) one month, (b) two months and (c) three months or
more;
(xv) the number and aggregate principal balances of the
Mortgage Loans in foreclosure as of the preceding Determination Date;
(xvi) the book value of any real estate acquired through
foreclosure or grant of a deed in lieu of foreclosure;
(xvii) the principal and interest portions of Realized Losses
allocated as of such Distribution Date;
(xviii) the amount by which the Principal Balance of each Class
of Class B Certificates has been reduced as a result of Realized Losses
allocated as of such Distribution Date;
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(xix) the unpaid principal balance of any Mortgage Loan as to
which the Servicer of such Mortgage Loan has determined not to foreclose
because it believes the related Mortgaged Property may be contaminated
with or affected by hazardous wastes or hazardous substances;
(xx) the amount of the aggregate Servicing Fees and Master
Servicing Fees paid (and not previously reported) with respect to the
related Distribution Date and the amount by which the aggregate
Available Master Servicer Compensation has been reduced by the
Prepayment Interest Shortfall for the related Distribution Date;
(xxi) the Class A-PO Deferred Amount if any;
(xxii) the amount of PMI Advances made by a Servicer, if any;
and
(xxiii) such other customary information as the Master Servicer
deems necessary or desirable to enable Certificateholders to prepare
their tax returns;
and shall deliver a copy of each type of statement to the Trustee, who shall
provide copies thereof to Persons making written request therefor at the
Corporate Trust Office.
In the case of information furnished with respect to a Class of
Class A Certificates pursuant to clauses (i) and (ii) above and with respect to
a Class of Class B Certificates pursuant to clauses (iii) and (iv) above, the
amounts shall be expressed as a dollar amount per Class A or Class B Certificate
(other than the Class A-R Certificate) with a $1,000 Denomination, and as a
dollar amount per Class A-R Certificate with a $100 Denomination.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall, upon request, furnish or cause to be furnished
to each Person who at any time during the calendar year was the Holder of a
Certificate a statement containing the information set forth in clauses (i) and
(ii)(a) above in the case of a Class A Certificateholder and the information set
forth in clauses (iii) and (iv)(a) above in the case of a Class B
Certificateholder aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Master Servicer or the Trustee
pursuant to any requirements of the Code from time to time in force.
Prior to the close of business on the third Business Day
preceding each Distribution Date, the Master Servicer shall furnish a statement
to the Trustee, any Paying Agent and the Seller (the information in such
statement to be made available to Certificateholders by the Trustee on written
request) setting forth the Class A Distribution Amount with respect to each
Class of Class A Certificates and the Class B Distribution Amount with respect
to each Class of Class B Certificates. The determination by the Master Servicer
of such amounts shall, in the absence of obvious error, be presumptively deemed
to be correct for all purposes hereunder and the Trustee and the Paying Agent
shall be protected in relying upon the same without any independent check or
verification.
In addition to the reports required pursuant to this Section
4.04, the Paying Agent shall make available upon request to each Holder and each
proposed transferee of a Class B-4,
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Class B-5 or, Class B-6 Certificate such additional information, if any, as may
be required to permit the proposed transfer to be effected pursuant to Rule
144A, which information shall be provided on a timely basis to the Paying Agent
by the Master Servicer.
Section 4.05 Reports to Mortgagors and the Internal Revenue
Service.
The Master Servicer shall, in each year beginning after the
Cut-Off Date, make the reports of foreclosures and abandonments of any Mortgaged
Property as required by Code Section 6050J. In order to facilitate this
reporting process, the Master Servicer shall request that each Servicer, on or
before January 15th of each year, shall provide to the Internal Revenue Service,
with copies to the Master Servicer, reports relating to each instance occurring
during the previous calendar year in which such Servicer (i) on behalf of the
Trustee acquires an interest in a Mortgaged Property through foreclosure or
other comparable conversion in full or partial satisfaction of a Mortgage Loan
serviced by such Servicer, or (ii) knows or has reason to know that a Mortgaged
Property has been abandoned. Reports from the Servicers shall be in form and
substance sufficient to meet the reporting requirements imposed by Code Section
6050J. In addition, each Servicer shall provide the Master Servicer with
sufficient information to allow the Master Servicer to, for each year ending
after the Cut-Off Date, provide, or cause to be provided, to the Internal
Revenue Service and the Mortgagors such information as is required under Code
Sections 6050H (regarding payment of interest) and 6050P (regarding cancellation
of indebtedness).
Section 4.06 Calculation of Amounts; Binding Effect of
Interpretations and Actions of Master Servicer.
The Master Servicer will compute the amount of all distributions
to be made on the Certificates and all losses to be allocated to the
Certificates. In the event that the Master Servicer concludes that any ambiguity
or uncertainty exists in any provisions of this Agreement relating to
distributions to be made on the Certificates, the allocation of losses to the
Certificates or otherwise, the interpretation of such provisions and any actions
taken by the Master Servicer in good faith to implement such interpretation
shall be binding upon Certificateholders.
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ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Class A and Class B Certificates shall be issued
only in minimum Denominations of a Single Certificate and, except for the
Class A-R Certificate, integral multiples of $1,000 in excess thereof
(except, if necessary, for one Certificate of each Class (other than the
Class A-R Certificate), that evidences one Single Certificate plus such
additional principal portion as is required in order for all Certificates of
such Class to equal the aggregate Original Principal Balance of such Class),
and shall be substantially in the respective forms set forth as Exhibits ▇-▇,
▇-▇, ▇-▇, ▇-▇, A-PO, A-R, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, B-6 and C (reverse side of
Certificates) hereto. On original issue the Certificates shall be executed
and delivered by the Trustee to or upon the order of the Seller upon receipt
by the Trustee or the Custodian of the documents specified in Section
2.01(a). The aggregate principal portion evidenced by the Class A and Class B
Certificates shall be the sum of the amounts specifically set forth in the
respective Certificates. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trustee by any Responsible Officer
thereof. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Trustee shall
bind the Trustee notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless manually countersigned by a Responsible Officer
of the Trustee, or unless there appears on such Certificate a certificate of
authentication executed by the Authenticating Agent by manual signature, and
such countersignature or certificate upon a Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
Until such time as Definitive Certificates are issued pursuant
to Section 5.07, each Book-Entry Certificate shall bear the following legend:
"Unless this certificate is presented by an authorized
representative of [the Clearing Agency] to the Seller or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of [the Clearing Agency] or such other name as requested
by an authorized representative of [the Clearing Agency] and any payment is made
to [the Clearing Agency], any transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful since the registered owner hereof,
[the Clearing Agency], has an interest herein."
(b) Upon original issuance, the Book-Entry Certificates
shall be issued in the form of one or more typewritten certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Seller or to, and deposited with the Certificate
Custodian, on behalf of The Depository Trust Company, if directed to do so
pursuant instructions from The Depository Trust Company. Such Certificates
shall initially be
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registered in the Certificate Register in the name of the nominee of the
initial Clearing Agency, and no Beneficial Owner will receive a definitive
certificate representing such Beneficial Owner's interest in the Book-Entry
Certificates, except as provided in Section 5.07. Unless and until
definitive, fully registered certificates ("Definitive Certificates") have
been issued to Beneficial Owners pursuant to Section 5.07:
(i) the provisions of this Section 5.01(b) shall be in full
force and effect;
(ii) the Seller, the Master Servicer, the Certificate
Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Book-Entry
Certificates and the taking of actions by the Holders of Book-Entry
Certificates) as the authorized representative of the Beneficial Owners;
(iii) to the extent that the provisions of this Section 5.01(b)
conflict with any other provisions of this Agreement, the provisions
of this Section 5.01(b) shall control;
(iv) the rights of Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law, the rules, regulations and procedures of the Clearing Agency and
agreements between such Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants, and all references in this Agreement
to actions by Certificateholders shall, with respect to the Book-Entry
Certificates, refer to actions taken by the Clearing Agency upon
instructions from the Clearing Agency Participants, and all references
in this Agreement to distributions, notices, reports and statements to
Certificateholders shall, with respect to the Book-Entry Certificates,
refer to distributions, notices, reports and statements to the Clearing
Agency or its nominee, as registered holder of the Book-Entry
Certificates, as the case may be, for distribution to Beneficial Owners
in accordance with the procedures of the Clearing Agency; and
(v) the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit distributions of principal and interest on the Certificates to
the Clearing Agency Participants, for distribution by such Clearing
Agency Participants to the Beneficial Owners or their nominees.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
Book-Entry Certificates evidencing specified Voting Interests, such direction or
consent shall be given by Beneficial Owners having the requisite Voting
Interests, acting through the Clearing Agency.
Unless and until Definitive Certificates have been issued to
Beneficial Owners pursuant to Section 5.07, copies of the reports or statements
referred to in Section 4.04 shall be available to Beneficial Owners upon written
request to the Trustee at the Corporate Trust Office.
Section 5.02 Registration of Certificates.
(a) The Trustee shall cause to be kept at one of the offices
or agencies to be maintained in accordance with the provisions of Section
5.06 a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Trustee shall provide for the
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registration of Certificates and of transfers and exchanges of Certificates
as herein provided. The Trustee shall act as, or shall appoint, a Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate
at any office or agency maintained for such purpose pursuant to Section 5.06
(and subject to the provisions of this Section 5.02) the Trustee shall execute,
and shall date, authenticate (or cause the Authenticating Agent to authenticate)
and deliver, in the name of the designated transferee or transferees, one or
more new Certificates of a like aggregate principal portion or Percentage
Interest and of the same Class.
At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized Denominations of a like aggregate
principal portion or Percentage Interest and of the same Class upon surrender of
the Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute, and
shall date, authenticate (or cause the Authenticating Agent to authenticate) and
deliver, the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar or the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Certificate Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
All Certificates surrendered for transfer and exchange shall be
canceled by the Certificate Registrar, the Trustee or the Authenticating Agent
in accordance with their standard procedures.
(b) No transfer of a Class B-4, Class B-5 or Class B-6
Certificate shall be made unless the registration requirements of the
Securities Act of 1933, as amended, and any applicable State securities laws
are complied with, or such transfer is exempt from the registration
requirements under said Act and laws. In the event that a transfer is to be
made in reliance upon an exemption from said Act or laws, (i) unless such
transfer is made in reliance on Rule 144A, the Trustee or the Seller may, if
such transfer is to be made within three years after the later of (i) the
date of the initial sale of Certificates or (ii) the last date on which the
Seller or any affiliate thereof was a Holder of the Certificates proposed to
be transferred, require a Class B-4, Class B-5 or Class B-6 Certificateholder
to deliver a written Opinion of Counsel acceptable to and in form and
substance satisfactory to the Trustee and the Seller, to the effect that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being made
pursuant to said Act and laws, which Opinion of Counsel shall not be an
expense of the Trustee, the Seller or the Master Servicer, and (ii) the
Trustee shall require the transferee (other than an affiliate of the Seller
on the Closing Date) to execute an investment letter in the form of Exhibit J
hereto certifying to the Seller and the Trustee the facts surrounding such
transfer, which investment
V-3
letter shall not be an expense of the Trustee, the Seller or the Master
Servicer. The Holder of a Class B-4, Class B-5 or Class B-6 Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee, the Seller, the Master Servicer and any Paying Agent acting on
behalf of the Trustee against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws. Neither the Seller nor the Trustee is under an obligation to register
the Class B-4, Class B-5 or Class B-6 Certificates under said Act or any
other securities law.
(c) No transfer of a Class B-4, Class B-5 or Class B-6
Certificate shall be made unless the Trustee and the Seller shall have
received (i) a representation letter from the transferee in the form of
Exhibit J hereto, to the effect that either (a) such transferee is not an
employee benefit plan or other retirement arrangement subject to Title I of
ERISA or Code Section 4975, or a governmental plan, as defined in Section
3(32) of ERISA, subject to any federal, state or local law ("Similar Law")
which is to a material extent similar to the foregoing provisions of ERISA or
the Code (collectively, a "Plan") and is not a person acting on behalf of or
using the assets of any such Plan, which representation letter shall not be
an expense of the Trustee, the Seller or the Master Servicer or (b) if such
transferee is an insurance company, (A) the source of funds used to purchase
the Class B-4, Class B-5 or Class B-6 Certificate is an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12,
1995)), (B) there is no Plan with respect to which the amount of such general
account's reserves and liabilities for the contract(s) held by or on behalf
of such Plan and all other Plans maintained by the same employer (or
affiliate thereof as defined in Section V(a)(1) of PTE 95-60) or by the same
employee organization exceeds 10% of the total of all reserves and
liabilities of such general account (as such amounts are determined under
Section I(a) of PTE 95-60) at the date of acquisition and (C) the purchase
and holding of such Class B-4, Class B-5 or Class B-6 Certificate is covered
by Sections I and III of PTE 95-60 or (ii) in the case of any such Class B-4,
Class B-5 or Class B-6 Certificate presented for registration in the name of
a Plan, or a trustee of any such Plan, (A) an Opinion of Counsel satisfactory
to the Trustee and the Seller to the effect that the purchase or holding of
such Class B-4, Class B-5 or Class B-6 Certificate will not result in the
assets of the Trust Estate being deemed to be "plan assets" and subject to
the prohibited transaction provisions of ERISA, the Code or Similar Law and
will not subject the Trustee, the Seller or the Master Servicer to any
obligation in addition to those undertaken in this Agreement, which Opinion
of Counsel shall not be an expense of the Trustee, the Seller or the Master
Servicer and (B) such other opinions of counsel, officer's certificates and
agreements as the Seller or the Master Servicer may require in connection
with such transfer, which opinions of counsel, officers' certificates and
agreements shall not be an expense of the Trustee, the Seller or the Master
Servicer. The Class B-4, Class B-5 and Class B-6 Certificates shall bear a
legend referring to the foregoing restrictions contained in this paragraph.
(d) No legal or beneficial interest in all or any portion of
the Class A-R Certificate may be transferred directly or indirectly to a
"disqualified organization" within the meaning of Code Section 860E(e)(5) or
an agent of a disqualified organization (including a broker, nominee, or
middleman), to a Plan or a Person acting on behalf of or investing the assets
of a Plan (such Plan or Person, an "ERISA Prohibited Holder") or to an
individual, corporation, partnership or other person unless such transferee
(i) is not a Non-U.S. Person or
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(ii) is a Non-U.S. Person that holds the Class A-R Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Trustee with an effective Internal Revenue
Service Form W-8ECI or (iii) is a Non-U.S. Person that has delivered to both
the transferor and the Trustee an opinion of a nationally recognized tax
counsel to the effect that the transfer of the Class A-R Certificate to it is
in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of the Class A-R Certificate
will not be disregarded for federal income tax purposes (any such person who
is not covered by clauses (i), (ii) or (iii) above being referred to herein
as a "Non-permitted Foreign Holder"), and any such purported transfer shall
be void and have no effect. The Trustee shall not execute, and shall not
authenticate (or cause the Authenticating Agent to authenticate) and deliver,
a new Class A-R Certificate in connection with any such transfer to a
disqualified organization or agent thereof (including a broker, nominee or
middleman), an ERISA Prohibited Holder or a Non-permitted Foreign Holder, and
neither the Certificate Registrar nor the Trustee shall accept a surrender
for transfer or registration of transfer, or register the transfer of, the
Class A-R Certificate, unless the transferor shall have provided to the
Trustee an affidavit, substantially in the form attached as Exhibit H hereto,
signed by the transferee, to the effect that the transferee is not such a
disqualified organization, an agent (including a broker, nominee, or
middleman) for any entity as to which the transferee has not received a
substantially similar affidavit, an ERISA Prohibited Holder or a
Non-permitted Foreign Holder, which affidavit shall contain the consent of
the transferee to any such amendments of this Agreement as may be required to
further effectuate the foregoing restrictions on transfer of the Class A-R
Certificate to disqualified organizations, ERISA Prohibited Holders or
Non-permitted Foreign Holders. Such affidavit shall also contain the
statement of the transferee that (i) the transferee has historically paid its
debts as they have come due and intends to do so in the future, (ii) the
transferee understands that it may incur liabilities in excess of cash flows
generated by the residual interest, (iii) the transferee intends to pay taxes
associated with holding the residual interest as they become due and (iv) the
transferee will not cause income from the Class A-R Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such transferee or any other
Person, and (v) the transferee will not transfer the Class A-R Certificate to
any Person who does not provide an affidavit substantially in the form
attached as Exhibit H hereto.
The affidavit described in the preceding paragraph, if not
executed in connection with the initial issuance of the Class A-R Certificate,
shall be accompanied by a written statement in the form attached as Exhibit I
hereto, signed by the transferor, to the effect that as of the time of the
transfer, the transferor has no actual knowledge that the transferee is a
disqualified organization, ERISA Prohibited Holder or Non-permitted Foreign
Holder, and has no knowledge or reason to know that the statements made by the
transferee with respect to clauses (i) and (iii) of the last sentence of the
preceding paragraph are not true. The Class A-R Certificate shall bear a legend
referring to the foregoing restrictions contained in this paragraph and the
preceding paragraph.
Upon notice to the Master Servicer that any legal or beneficial
interest in any portion of the Class A-R Certificate has been transferred,
directly or indirectly, to a disqualified organization or agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, (i) such transferee shall be deemed to hold the Class A-R
Certificate in
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constructive trust for the last transferor who was not a disqualified
organization or agent thereof, and such transferor shall be restored as the
owner of such Class A-R Certificate as completely as if such transfer had never
occurred, provided that the Master Servicer may, but is not required to, recover
any distributions made to such transferee with respect to the Class A-R
Certificate, and (ii) the Master Servicer agrees to furnish to the Internal
Revenue Service and to any transferor of the Class A-R Certificate or such agent
(within 60 days of the request therefor by the transferor or agent) such
information necessary to the application of Code Section 860E(e) as may be
required by the Code, including but not limited to the present value of the
total anticipated excess inclusions with respect to the Class A-R Certificate
(or portion thereof) for periods after such transfer. At the election of the
Master Servicer, the cost to the Master Servicer of computing and furnishing
such information may be charged to the transferor or such agent referred to
above; however, the Master Servicer shall in no event be excused from furnishing
such information.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Trustee
or the Authenticating Agent, or the Trustee or the Authenticating Agent receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee or the Authenticating
Agent such security or indemnity as may be required by them to hold each of them
harmless, then, in the absence of notice to the Trustee or the Authenticating
Agent that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and authenticate (or cause the Authenticating Agent to
authenticate) and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
principal portion or Percentage Interest and of the same Class. Upon the
issuance of any new Certificate under this Section, the Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expense (including the fees and expenses of the Trustee or the
Authenticating Agent) in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust Estate, as if originally issued, whether or not the lost,
stolen, or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners.
Prior to the due presentation of a Certificate for registration
of transfer, the Seller, the Master Servicer, the Trustee, the Certificate
Registrar and any agent of the Seller, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.01, and for all other purposes whatsoever,
and neither the Seller, the Master Servicer, the Trustee, the Certificate
Registrar nor any agent of the Seller, the Master Servicer, the Trustee or the
Certificate Registrar shall be affected by notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses.
(a) If the Trustee is not acting as Certificate Registrar,
the Certificate Registrar shall furnish or cause to be furnished to the
Trustee, within 15 days after receipt by the Certificate Registrar of a
request by the Trustee in writing, a list, in such form as the
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Trustee may reasonably require, of the names and addresses of the
Certificateholders of each Class as of the most recent Record Date.
(b) If five or more Certificateholders (hereinafter referred
to as "applicants") apply in writing to the Trustee, and such application
states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days following the receipt of such application, afford such applicants access
during normal business hours to the most recent list of Certificateholders
held by the Trustee. If such a list is as of the date more than 90 days prior
to the date of receipt of such applicants' request and the Trustee is not the
Certificate Registrar, the Trustee shall promptly request from the
Certificate Registrar a current list as provided in paragraph (a) hereof, and
shall afford such applicants access to such list promptly upon receipt.
(c) Every Certificateholder, by receiving and holding a
Certificate, agrees with the Seller, the Master Servicer, the Certificate
Registrar and the Trustee that neither the Seller, the Master Servicer, the
Certificate Registrar nor the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names, addresses and
Percentage Interests of the Certificateholders hereunder, regardless of the
source from which such information was delivered.
Section 5.06 Maintenance of Office or Agency.
The Trustee will maintain, at its expense, an office or agency
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Certificate Registrar in respect of
the Certificates and this Agreement may be served. The Trustee initially
designates the Corporate Trust Office and the principal corporate trust office
of the Authenticating Agent, if any, as its offices and agencies for said
purposes.
Section 5.07 Definitive Certificates.
If (i)(A) the Master Servicer advises the Trustee in writing
that the Clearing Agency is no longer willing or able properly to discharge its
responsibilities as depository with respect to the Book-Entry Certificates, and
(B) the Master Servicer is unable to locate a qualified successor, (ii) the
Master Servicer, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of dismissal or resignation of the Master Servicer, Beneficial Owners
representing aggregate Voting Interests of not less than 51% of the aggregate
Voting Interests of each outstanding Class of Book-Entry Certificates advise the
Trustee through the Clearing Agency and Clearing Agency Participants in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Beneficial Owners, the Trustee shall notify
the Beneficial Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Certificates to Beneficial
Owners requesting the same. Upon surrender to the Trustee by the Clearing Agency
of the Certificates held of record by its nominee, accompanied by reregistration
instructions and directions to execute and authenticate new Certificates from
the Master Servicer, the Trustee shall execute and authenticate Definitive
Certificates for delivery at
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its Corporate Trust Office. The Master Servicer shall arrange for, and will bear
all costs of, the printing and issuance of such Definitive Certificates. Neither
the Seller, the Master Servicer nor the Trustee shall be liable for any delay in
delivery of such instructions by the Clearing Agency and may conclusively rely
on, and shall be protected in relying on, such instructions.
Section 5.08 Notices to Clearing Agency.
Whenever notice or other communication to the Holders of
Book-Entry Certificates is required under this Agreement, unless and until
Definitive Certificates shall have been issued to Beneficial Owners pursuant to
Section 5.07, the Trustee shall give all such notices and communications
specified herein to be given to Holders of Book-Entry Certificates to the
Clearing Agency.
V-8
ARTICLE VI
THE SELLER AND THE MASTER SERVICER
Section 6.01 Liability of the Seller and the Master Servicer.
The Seller and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement and undertaken hereunder by the Seller and the Master
Servicer.
Section 6.02 Merger or Consolidation of the Seller or the
Master Servicer.
Subject to the following paragraph, the Seller and the Master
Servicer each will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation, and will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
The Seller or the Master Servicer may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets to
any Person, in which case any Person resulting from any merger or consolidation
to which the Seller or Master Servicer shall be a party, or any Person
succeeding to the business of the Seller or Master Servicer, shall be the
successor of the Seller or Master Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that, in the
case of the Master Servicer, any such successor or resulting Person shall be
qualified to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Section 6.03 Limitation on Liability of the Seller, the Master
Servicer and Others.
Neither the Seller nor the Master Servicer nor any subcontractor
nor any of the partners, directors, officers, employees or agents of any of them
shall be under any liability to the Trust Estate or the Certificateholders and
all such Persons shall be held harmless for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect any
such Person against any breach of warranties or representations made herein or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Seller,
the Master Servicer, any subcontractor, and any partner, director, officer,
employee or agent of any of them shall be entitled to indemnification by the
Trust Estate and will be held harmless against any loss, liability or expense
incurred in connection with the performance of its duties and obligations and
any legal action relating to this Agreement or the Certificates, including
without limitation, any legal action against the Trustee in its capacity as
Trustee hereunder, other than any loss, liability or expense (including without
limitation, expenses payable by the Master Servicer under Section 8.06) incurred
by reason of willful misfeasance,
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bad faith or gross negligence in the performance of his or its duties hereunder
or by reason of reckless disregard of his or its obligations and duties
hereunder. The Seller, the Master Servicer and any of the directors, officers,
employees or agents of either may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any Person respecting
any matters arising hereunder. Neither the Seller nor the Master Servicer shall
be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and
which in its opinion does not involve it in any expense or liability; provided,
however, that the Seller or the Master Servicer may in its discretion undertake
any such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder if the Certificateholders offer to the Seller
or the Master Servicer, as the case may be, reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Estate, and the Seller or the Master Servicer shall be entitled to be
reimbursed therefor out of the Certificate Account, and such amounts shall, on
the following Distribution Date or Distribution Dates, be allocated in reduction
of distributions on the Class A Certificates and Class B Certificates in the
same manner as Realized Losses are allocated pursuant to Section 4.02(a).
Section 6.04 Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and
duties hereby imposed on it except upon determination that its duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the Master Servicer's responsibilities, duties,
liabilities and obligations hereunder.
Section 6.05 Compensation to the Master Servicer.
The Master Servicer shall be entitled to receive a monthly fee
equal to the Master Servicing Fee, as compensation for services rendered by the
Master Servicer under this Agreement. The Master Servicer also will be entitled
to any late reporting fees paid by a Servicer pursuant to its Servicing
Agreement, any investment income on funds on deposit in the Certificate Account
and any Liquidation Profits to which a Servicer is not entitled under its
Servicing Agreement.
Section 6.06 Assignment or Delegation of Duties by Master
Servicer.
The Master Servicer shall not assign or transfer any of its
rights, benefits or privileges under this Agreement to any other Person, or
delegate to or subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by the
Master Servicer without the prior written consent of the Trustee, and any
agreement, instrument or act purporting to effect any such assignment, transfer,
delegation or appointment shall be void. Notwithstanding the foregoing, the
Master Servicer shall have the right without the prior written consent of the
Trustee (i) to assign its rights and delegate its duties
VI-2
and obligations hereunder; provided, however, that (a) the purchaser or
transferee accepting such assignment or delegation is qualified to service
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, is satisfactory to the Trustee, in
the exercise of its reasonable judgment, and executes and delivers to the
Trustee an agreement, in form and substance reasonably satisfactory to the
Trustee, which contains an assumption by such purchaser or transferee of the due
and punctual performance and observance of each covenant and condition to be
performed or observed by the Master Servicer hereunder from and after the date
of such agreement; and (b) each applicable Rating Agency's rating of any
Certificates in effect immediately prior to such assignment, sale or transfer is
not reasonably likely to be qualified, downgraded or withdrawn as a result of
such assignment, sale or transfer and the Certificates are not reasonably likely
to be placed on credit review status by any such Rating Agency; and (ii) to
delegate to, subcontract with, authorize, or appoint an affiliate of the Master
Servicer to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Master Servicer under this Agreement and hereby
agrees so to delegate, subcontract, authorize or appoint to an affiliate of the
Master Servicer any duties, covenants or obligations to be performed and carried
out by the Master Servicer to the extent that such duties, covenants or
obligations are to be performed in any state or states in which the Master
Servicer is not authorized to do business as a foreign corporation but in which
the affiliate is so authorized. In no case, however, shall any permitted
assignment and delegation relieve the Master Servicer of any liability to the
Trustee or the Seller under this Agreement, incurred by it prior to the time
that the conditions contained in clause (i) above are met.
Section 6.07 Indemnification of Trustee and Seller by Master
Servicer.
The Master Servicer shall indemnify and hold harmless the
Trustee and the Seller and any director, officer or agent thereof against any
loss, liability or expense, including reasonable attorney's fees, arising out
of, in connection with or incurred by reason of willful misfeasance, bad faith
or negligence in the performance of duties of the Master Servicer under this
Agreement or by reason of reckless disregard of its obligations and duties under
this Agreement. Any payment pursuant to this Section made by the Master Servicer
to the Trustee or the Seller shall be from such entity's own funds, without
reimbursement therefor. The provisions of this Section 6.07 shall survive the
termination of this Agreement.
VI-3
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
In case one or more of the following Events of Default by the
Master Servicer shall occur and be continuing, that is to say:
(i) any failure by the Master Servicer (a) to remit any
funds to the Paying Agent as required by Section 4.03 or (b) to
distribute or cause to be distributed to Certificateholders any payment
required to be made by the Master Servicer under the terms of this
Agreement which, in either case, continues unremedied for a period of
three business days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master Servicer by the Trustee or to the Master Servicer and the Trustee
by the holders of Certificates evidencing in the aggregate not less than
25% of the aggregate Voting Interest represented by all Certificates;
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants or
agreements on the part of the Master Servicer in the Certificates or in
this Agreement which continues unremedied for a period of 60 days after
the date on which written notice of such failure, requiring the same to
be remedied, shall have been given to the Master Servicer by the
Trustee, or to the Master Servicer and the Trustee by the holders of
Certificates evidencing in the aggregate not less than 25% of the
aggregate Voting Interest represented by all Certificates;
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
trustee, conservator, receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such
decree or order shall have remained in force undischarged and unstayed
for a period of 60 days;
(iv) the Master Servicer shall consent to the appointment of
a trustee, conservator, receiver or liquidator or liquidating committee
in any bankruptcy, insolvency, readjustment of debt, marshaling of
assets and liabilities, voluntary liquidation or similar proceedings of
or relating to the Master Servicer, or of or relating to all or
substantially all of its property;
(v) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency, bankruptcy or reorganization
statute, make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations;
(vi) the Master Servicer shall be dissolved, or shall dispose
of all or substantially all of its assets; or consolidate with or merge
into another entity or shall permit another
VII-1
entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer, as specified in
Section 6.02 hereof; or
(vii) the Master Servicer and any subservicer appointed by it
becomes ineligible to service for both ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac, which
ineligibility continues unremedied for a period of 90 days.
then, and in each and every such case, subject to applicable law, so long as an
Event of Default shall not have been remedied, either the Trustee or the holders
of Certificates evidencing in the aggregate not less than 66 2/3% of the
aggregate Voting Interest represented by all Certificates, by notice in writing
to the Master Servicer (and to the Trustee if given by the Certificateholders)
may terminate all of the rights and obligations of the Master Servicer under
this Agreement and in and to the Mortgage Loans, but without prejudice to any
rights which the Master Servicer may have to the aggregate Master Servicing Fees
due prior to the date of transfer of the Master Servicer's responsibilities
hereunder, reimbursement of expenses to the extent permitted by this Agreement,
Periodic Advances and other advances of its own funds. Upon receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section, subject to the provisions of Section 7.05; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder and shall promptly provide the
Trustee all documents and records reasonably requested by it to enable it to
assume the Master Servicer's functions hereunder and shall promptly also
transfer to the Trustee all amounts which then have been or should have been
deposited in the Certificate Account by the Master Servicer or which are
thereafter received by the Master Servicer with respect to the Mortgage Loans.
Section 7.02 Other Remedies of Trustee.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filing of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
VII-2
Section 7.03 Directions by Certificateholders and
Duties of Trustee During Event of Default.
During the continuance of any Event of Default, Holders of
Certificates evidencing in the aggregate not less than 25% of the aggregate
Voting Interest represented by all Certificates may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Agreement;
provided, however, that the Trustee shall be under no obligation to pursue any
such remedy, or to exercise any of the rights or powers vested in it by this
agreement (including, without limitation, (i) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto and (ii) the
terminating of the Master Servicer from its rights and duties as servicer
hereunder) at the request, order or direction of any of the Certificateholders,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the cost, expenses and liabilities which may be
incurred therein or thereby and, provided further, that, subject to the
provisions of Section 8.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee, in accordance with an Opinion of
Counsel, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability or be unjustly
prejudicial to the nonassenting Certificateholders.
Section 7.04 Action upon Certain Failures of the
Master Servicer and upon Event of Default.
In the event that the Trustee shall have knowledge of any
failure of the Master Servicer specified in Section 7.01(i) or (ii) which would
become an Event of Default upon the Master Servicer's failure to remedy the same
after notice, the Trustee may, but need not if the Trustee deems it not in the
Certificateholders' best interest, give notice thereof to the Master Servicer.
For all purposes of this Agreement, in the absence of actual knowledge by a
corporate trust officer of the Trustee, the Trustee shall not be deemed to have
knowledge of any failure of the Master Servicer as specified in Section 7.01(i)
and (ii) or any Event of Default unless notified thereof in writing by the
Master Servicer or by a Certificateholder.
Section 7.05 Trustee to Act; Appointment of Successor.
When the Master Servicer receives notice of termination pursuant
to Section 7.01 or the Trustee receives the resignation of the Master Servicer
evidenced by an Opinion of Counsel pursuant to Section 6.04, the Trustee shall
be the successor in all respects to the Master Servicer in its capacity as
master servicer under this Agreement and the transactions set forth or provided
for herein and shall have the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and in its capacity as such
successor shall have the same limitation of liability herein granted to the
Master Servicer. In the event that the Trustee is succeeding to the Master
Servicer as the Master Servicer, as compensation therefor, the Trustee shall be
entitled to receive monthly such portion of the Master Servicing Fee, together
with such other servicing compensation as is agreed to at such time by the
Trustee and the Master Servicer, but in no event more than 25% thereof until the
date of final cessation of the Master Servicer's servicing activities hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is
VII-3
unable to so act or to obtain a qualifying bid as described below, appoint, or
petition a court of competent jurisdiction to appoint, any housing and home
finance institution, bank or mortgage servicing institution having a net worth
of not less than $10,000,000 and meeting such other standards for a successor
servicer as are set forth herein, as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder; provided, however, that until
such a successor master servicer is appointed and has assumed the
responsibilities, duties and liabilities of the Master Servicer hereunder, the
Trustee shall continue as the successor to the Master Servicer as provided
above. The compensation of any successor master servicer so appointed shall not
exceed the compensation specified in Section 6.05 hereof. In the event the
Trustee is required to solicit bids as provided above, the Trustee shall
solicit, by public announcement, bids from housing and home finance
institutions, banks and mortgage servicing institutions meeting the
qualifications set forth in the preceding sentence for the purchase of the
master servicing functions. Such public announcement shall specify that the
successor master servicer shall be entitled to the full amount of the Master
Servicing Fee as compensation together with the other servicing compensation in
the form of late reporting fees or otherwise as provided in Section 6.05. Within
30 days after any such public announcement, the Trustee shall negotiate and
effect the sale, transfer and assignment of the master servicing rights and
responsibilities hereunder to the qualified party submitting the highest
qualifying bid. The Trustee shall deduct all costs and expenses of any public
announcement and of any sale, transfer and assignment of the servicing rights
and responsibilities hereunder from any sum received by the Trustee from the
successor to the Master Servicer in respect of such sale, transfer and
assignment. After such deductions, the remainder of such sum shall be paid by
the Trustee to the Master Servicer at the time of such sale, transfer and
assignment to the Master Servicer's successor. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. The Master Servicer agrees to cooperate with the
Trustee and any successor servicer in effecting the termination of the Master
Servicer's servicing responsibilities and rights hereunder and shall promptly
provide the Trustee or such successor master servicer, as applicable, all
documents and records reasonably requested by it to enable it to assume the
Master Servicer's function hereunder and shall promptly also transfer to the
Trustee or such successor master servicer, as applicable, all amounts which then
have been or should have been deposited in the Certificate Account by the Master
Servicer or which are thereafter received by the Master Servicer with respect to
the Mortgage Loans. Neither the Trustee nor any other successor master servicer
shall be deemed to be in default hereunder by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof caused by
(i) the failure of the Master Servicer to deliver, or any delay in delivering,
cash, documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. Notwithstanding anything
to the contrary contained in Section 7.01 above or this Section 7.05, the Master
Servicer shall retain all of its rights and responsibilities hereunder, and no
successor (including the Trustee) shall succeed thereto, if the assumption
thereof by such successor would cause the rating assigned to any Certificates to
be revoked, downgraded or placed on credit review status (other than for
possible upgrading) by either Rating Agency and the retention thereof by the
Master Servicer would avert such revocation, downgrading or review.
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Section 7.06 Notification to Certificateholders.
Upon any termination of the Master Servicer or appointment of a
successor master servicer, in each case as provided herein, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register. The Trustee shall also, within
45 days after the occurrence of any Event of Default known to the Trustee, give
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register, unless such Event of Default shall have
been cured or waived within said 45 day period.
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured),
the Trustee, subject to the provisions of Sections 7.01, 7.03, 7.04 and 7.05,
shall exercise such of the rights and powers vested in it by this Agreement, and
use the same degree of care and skill in its exercise as a prudent investor
would exercise or use under the circumstances in the conduct of such investor's
own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any certificate, statement,
instrument, report, notice or other document furnished by the Master Servicer or
the Servicers pursuant to Articles III, IV and IX.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after
the curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee, and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of holders of Certificates which
evidence in the aggregate not less than 25% of the Voting Interest
represented by all Certificates relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this
Agreement; and
(iii) The Trustee shall not be liable for any error of
judgment made in good faith by any of its Responsible Officers, unless
it shall be proved that the Trustee or such Responsible Officer, as the
case may be, was negligent in ascertaining the pertinent facts.
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None of the provisions contained in this Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if there is reasonable ground for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and
the manner of obtaining consents and evidencing the authorization of the
execution thereof shall be subject to such reasonable regulations as the
Trustee may prescribe;
(ii) The Trustee may consult with counsel, and any written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(iv) Subject to Section 7.04, the Trustee shall not be
accountable, shall have no liability and makes no representation as to
any acts or omissions hereunder of the Master Servicer until such time
as the Trustee may be required to act as Master Servicer pursuant to
Section 7.05 and thereupon only for the acts or omissions of the Trustee
as successor Master Servicer; and
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys.
Section 8.03 Trustee Not Required to Make Investigation.
Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond, Mortgage, Mortgage Note or other paper
or document (provided the same appears regular on its face), unless requested in
writing to do so by holders of Certificates evidencing in the aggregate not less
than 51% of the Voting Interest represented by all Certificates; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement, the
Trustee may require
VIII-2
reasonable indemnity against such expense or liability as a condition to so
proceeding. The reasonable expense of every such investigation shall be paid by
the Master Servicer or, if paid by the Trustee, shall be repaid by the Master
Servicer upon demand.
Section 8.04 Trustee Not Liable for Certificates or Mortgage
Loans.
The recitals contained herein and in the Certificates (other
than the certificate of authentication on the Certificates) shall be taken as
the statements of the Seller, and the Trustee assumes no responsibility as to
the correctness of the same. The Trustee makes no representation for the
correctness of the same. The Trustee makes no representation as to the validity
or sufficiency of this Agreement or of the Certificates or of any Mortgage Loan
or related document. Subject to Section 2.04, the Trustee shall not be
accountable for the use or application by the Seller of any of the Certificates
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Master Servicer in respect of the Mortgage Loans deposited
into the Certificate Account by the Master Servicer or, in its capacity as
trustee, for investment of any such amounts.
Section 8.05 Trustee May Own Certificates.
The Trustee and any agent thereof, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights it would have if it were not Trustee or such agent and may transact
banking and/or trust business with the Seller, the Master Servicer or their
Affiliates.
Section 8.06 The Master Servicer to Pay Fees and Expenses.
The Master Servicer covenants and agrees to pay to the Trustee
from time to time, from its own funds, and the Trustee shall be entitled to
receive, reasonable compensation (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) for all
services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee and, except as otherwise agreed by the Master Servicer and the Trustee,
the Master Servicer will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by it in
accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense, disbursement,
or advance as may arise from its negligence or bad faith. The Trustee shall have
no right of reimbursement from the Trust Estate for any such expenses,
disbursements and advances not paid or reimbursed to it by the Master Servicer.
Section 8.07 Eligibility Requirements.
The Trustee hereunder shall at all times (i) be a corporation or
association having its principal office in a state and city acceptable to the
Seller, organized and doing business under the laws of such state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, or shall
be a member of a bank holding system, the aggregate combined capital and surplus
of which is at least $50,000,000, provided that its separate capital and surplus
shall at all times be at least the
VIII-3
amount specified in Section 310(a)(2) of the Trust Indenture Act of 1939, (ii)
be subject to supervision or examination by federal or state authority and (iii)
have a credit rating or be otherwise acceptable to the Rating Agencies such that
neither of the Rating Agencies would reduce their respective then current
ratings of the Certificates (or have provided such security from time to time as
is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation or association shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.08.
Section 8.08 Resignation and Removal.
The Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice of resignation to the Master
Servicer, such resignation to be effective upon the appointment of a successor
trustee. Upon receiving such notice of resignation, the Master Servicer shall
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning entity and one copy
to its successor. If no successor trustee shall have been appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.07 and shall fail to resign after
written request for its resignation by the Master Servicer, or if at any time
the Trustee shall become incapable of acting, or an order for relief shall have
been entered in any bankruptcy or insolvency proceeding with respect to such
entity, or a receiver of such entity or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of the
property or affairs of the Trustee for the purpose of rehabilitation, conversion
or liquidation, or the Master Servicer shall deem it necessary in order to
change the situs of the Trust Estate for state tax reasons, then the Master
Servicer shall remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee.
The Holders of Certificates evidencing in the aggregate not less
than 51% of the Voting Interests represented by all Certificates (except that
any Certificate registered in the name of the Seller, the Master Servicer or any
affiliate thereof will not be taken into account in determining whether the
requisite Voting Interests has been obtained) may at any time remove the Trustee
and appoint a successor by written instrument or instruments, in triplicate,
signed by such holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set of which shall be delivered to the entity or entities so removed and one
complete set of which shall be delivered to the successor so appointed.
VIII-4
Any resignation or removal of the Trustee and appointment of a
successor pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor as provided in Section
8.09.
Section 8.09 Successor.
Any successor trustee appointed as provided in Section 8.08
shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective, and such successor, without any further act, deed or reconveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to its successor all documents and
statements held by it hereunder, and the Seller, the Master Servicer and the
predecessor entity shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations. No successor shall accept appointment as provided in this Section
unless at the time of such acceptance such successor shall be eligible under the
provisions of Section 8.07.
Upon acceptance of appointment by a successor as provided in
this Section, the Master Servicer shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Master Servicer fails to mail such notice
within ten days after acceptance of the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Master Servicer.
Section 8.10 Merger or Consolidation.
Any Person into which the Trustee may be merged or converted or
with which it may be consolidated, to which it may sell or transfer its
corporate trust business and assets as a whole or substantially as a whole or
any Person resulting from any merger, sale, transfer, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the business of such entity, shall be the successor of the Trustee, hereunder;
provided, however, that (i) such Person shall be eligible under the provisions
of Section 8.07, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, and (ii) the Trustee shall deliver an Opinion of Counsel to the
Seller and the Master Servicer to the effect that such merger, consolidation,
sale or transfer will not subject the REMIC to federal, state or local tax or
cause the Trust Estate to fail to qualify as a REMIC, which Opinion of Counsel
shall be at the sole expense of the Trustee.
Section 8.11 Authenticating Agent.
The Trustee may appoint an Authenticating Agent, which shall be
authorized to act on behalf of the Trustee in authenticating Certificates.
Wherever reference is made in this Agreement to the authentication of
Certificates by the Trustee or the Trustee's countersignature, such reference
shall be deemed to include authentication on behalf of the Trustee by the
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by the Authenticating Agent. The Authenticating Agent must be
acceptable to the Seller and the Master
VIII-5
Servicer and must be a corporation organized and doing business under the laws
of the United States of America or of any state, having a principal office and
place of business in a state and city acceptable to the Seller and the Master
Servicer, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
Any corporation into which the Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of the Authenticating Agent, shall be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the Seller
and the Master Servicer. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice thereof to the Authenticating
Agent, the Seller and the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.11, the Trustee promptly shall appoint a successor
Authenticating Agent, which shall be acceptable to the Master Servicer, and
shall give written notice of such appointment to the Seller, and shall mail
notice of such appointment to all Certificateholders. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 8.11.
The Authenticating Agent shall have no responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Any reasonable compensation paid to the Authenticating Agent shall be a
reimbursable expense under Section 8.06.
Section 8.12 Separate Trustees and Co-Trustees.
The Trustee shall have the power from time to time to appoint
one or more persons or corporations to act either as co-trustees jointly with
the Trustee, or as separate trustees, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan outside
the state where the Trustee has its principal place of business, where such
separate trustee or co-trustee is necessary or advisable (or the Trustee is
advised by the Master Servicer that such separate trustee or co-trustee is
necessary or advisable) under the laws of any state in which a Mortgaged
Property is located or for the purpose of otherwise conforming to any legal
requirement, restriction or condition in any state in which a Mortgaged Property
is located or in any state in which any portion of the Trust Estate is located.
The Master Servicer shall advise the Trustee when, in its good faith opinion, a
separate trustee or co-trustee is necessary or advisable as aforesaid. The
separate trustees or co-trustees so appointed shall be trustees for the benefit
of all of the Certificateholders and shall have such powers, rights and remedies
as shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The
VIII-6
Seller and the Master Servicer shall join in any such appointment, but such
joining shall not be necessary for the effectiveness of such appointment.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee, in respect of the receipt, custody and payment of
moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee;
(iii) no separate trustee or co-trustee hereunder shall be
personally liable by reason of any act or omission of any other separate
trustee or co-trustee hereunder; and
(iv) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee so appointed by it, if such
resignation or removal does not violate the other terms of this
Agreement.
Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee, or custodian shall refer to this
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee, or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be furnished
to the Trustee.
Any separate trustee, co-trustee, or custodian may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee to the extent permitted by law, without the appointment
of a new or successor trustee.
No separate trustee or co-trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.07
hereunder and no notice to Certificateholders of the appointment thereof shall
be required under Section 8.09 hereof.
VIII-7
The Trustee agrees to instruct its co-trustees, if any, to the
extent necessary to fulfill such entity's obligations hereunder.
The Master Servicer shall pay the reasonable compensation of the
co-trustees to the extent, and in accordance with the standards, specified in
Section 8.06 hereof.
Section 8.13 Tax Matters; Compliance with REMIC Provisions.
(a) Each of the Trustee and the Master Servicer covenants
and agrees that it shall perform its duties hereunder in a manner consistent
with the REMIC Provisions and shall not knowingly take any action or fail to
take any action that would (i) affect the determination of the Trust Estate's
status as a REMIC; or (ii) cause the imposition of any federal, state or
local income, prohibited transaction, contribution or other tax on either the
REMIC or the Trust Estate. The Master Servicer, or, in the case of any tax
return or other action required by law to be performed directly by the
Trustee, the Trustee, shall (i) prepare or cause to be prepared, timely cause
to be signed by the Trustee and file or cause to be filed annual federal and
applicable state and local income tax returns for the REMIC using a calendar
year as the taxable year and the accrual method of accounting; (ii) in the
first such federal tax return, make, or cause to be made, elections
satisfying the requirements of the REMIC Provisions, on behalf of the Trust
Estate, to treat the Trust Estate as a REMIC; (iii) prepare, execute and
forward, or cause to be prepared, executed and forwarded, to the
Certificateholders all information reports or tax returns required with
respect to the Trust Estate, as and when required to be provided to the
Certificateholders, and to the Internal Revenue Service and any other
relevant governmental taxing authority in accordance with the REMIC
Provisions and any other applicable federal, state or local laws, including
without limitation information reports relating to "original issue discount"
and "market discount" as defined in the Code based upon the issue prices,
prepayment assumption and cash flows provided by the Seller to the Trustee
and calculated on a monthly basis by using the issue prices of the
Certificates; (iv) make available information necessary for the application
of any tax imposed on transferors of residual interests to "disqualified
organizations" (as defined in the REMIC Provisions); (v) file Form 8811 and
apply for an Employee Identification Number with a Form SS-4 or any other
permissible method and respond to inquiries by Certificateholders or their
nominees concerning information returns, reports or tax returns; (vi)
maintain (or cause to be maintained by the Servicers) such records relating
to the REMIC, including but not limited to the income, expenses, individual
Mortgage Loans (including REO Mortgage Loans), other assets and liabilities
of the REMIC, and the fair market value and adjusted basis of the property of
the REMIC determined at such intervals as may be required by the Code, as may
be necessary to prepare the foregoing returns or information reports; (vii)
exercise reasonable care not to allow the creation of any "interests" in the
REMIC within the meaning of Code Section 860D(a)(2) other than the interests
represented by the Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, ▇-▇, Class A-PO, Class
A-R, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates; (viii) exercise reasonable care not to allow the occurrence of
any "prohibited transactions" within the meaning of Code Section 860F(a),
unless the Master Servicer shall have provided an Opinion of Counsel to the
Trustee that such occurrence would not (a) result in a taxable gain, (b)
otherwise subject either the REMIC or the Trust Estate to tax or (c) cause
the Trust Estate to fail to qualify as a REMIC; (ix) exercise reasonable care
not to allow the REMIC to receive income from the performance of services or
from assets not permitted under the REMIC
VIII-8
Provisions to be held by a REMIC; (x) pay (on behalf of the REMIC) the amount
of any federal income tax, including, without limitation, prohibited
transaction taxes, taxes on net income from foreclosure property, and taxes
on certain contributions to a REMIC after the Startup Day, imposed on the
REMIC when and as the same shall be due and payable (but such obligation
shall not prevent the Master Servicer or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Master Servicer from withholding or depositing payment of such tax, if
permitted by law, pending the outcome of such proceedings); and (xi) if
required or permitted by the Code and applicable law, act as "tax matters
person" for the REMIC within the meaning of Treasury Regulations Section
1.860F-4(d), and the Master Servicer is hereby designated as agent of the
Class A-R Certificateholder for such purpose (or if the Master Servicer is
not so permitted, the Holder of the Class A-R Certificate shall be the tax
matters person for the REMIC in accordance with the REMIC Provisions). The
Master Servicer shall be entitled to be reimbursed pursuant to Section 3.02
for any taxes paid by it pursuant to clause (x) of the preceding sentence,
except to the extent that such taxes are imposed as a result of the bad
faith, willful misfeasance or gross negligence of the Master Servicer in the
performance of its obligations hereunder. The Trustee shall sign the tax
returns referred to in clause (i) of the second preceding sentence.
In order to enable the Master Servicer or the Trustee, as the
case may be, to perform its duties as set forth above, the Seller shall provide,
or cause to be provided, to the Master Servicer within ten days after the
Closing Date all information or data that the Master Servicer determines to be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flows of each Class of Certificates and the
Mortgage Loans in the aggregate. Thereafter, the Seller shall provide to the
Master Servicer or the Trustee, as the case may be, promptly upon request
therefor, any such additional information or data that the Master Servicer or
the Trustee, as the case may be, may from time to time request in order to
enable the Master Servicer to perform its duties as set forth above. The Seller
hereby indemnifies the Master Servicer or the Trustee, as the case may be, for
any losses, liabilities, damages, claims or expenses of the Master Servicer or
the Trustee arising from any errors or miscalculations by the Master Servicer or
the Trustee pursuant to this Section that result from any failure of the Seller
to provide, or to cause to be provided, accurate information or data to the
Master Servicer or the Trustee, as the case may be, on a timely basis. The
Master Servicer hereby indemnifies the Seller and the Trustee for any losses,
liabilities, damages, claims or expenses of the Seller or the Trustee arising
from the Master Servicer's willful misfeasance, bad faith or gross negligence in
preparing any of the federal, state and local tax returns of the REMIC as
described above. In the event that the Trustee prepares any of the federal,
state and local tax returns of the REMIC as described above, the Trustee hereby
indemnifies the Seller and the Master Servicer for any losses, liabilities,
damages, claims or expenses of the Seller or the Master Servicer arising from
the Trustee's willful misfeasance, bad faith or negligence in connection with
such preparation.
(b) Notwithstanding anything in this Agreement to the
contrary, each of the Master Servicer and the Trustee shall pay from its own
funds, without any right of reimbursement therefor, the amount of any costs,
liabilities and expenses incurred by the Trust Estate (including, without
limitation, any and all federal, state or local taxes, including taxes
imposed on "prohibited transactions" within the meaning of the REMIC
Provisions) if and to
VIII-9
the extent that such costs, liabilities and expenses arise from a failure of
the Master Servicer or the Trustee, respectively, to perform its obligations
under this Section 8.13.
Section 8.14 Monthly Advances.
In the event that WFHM fails to make a Periodic Advance required
to be made pursuant to the WFHM Servicing Agreement on or before the
Distribution Date, the Trustee shall make a Periodic Advance as required by
Section 3.03 hereof; provided, however, the Trustee shall not be required to
make such Periodic Advances if prohibited by law or if it determines that such
Periodic Advance would be a Nonrecoverable Advance. With respect to those
Periodic Advances which should have been made by WFHM, the Trustee shall be
entitled, pursuant to Section 3.02(a)(i), (ii) or (v) hereof, to be reimbursed
from the Certificate Account for Periodic Advances and Nonrecoverable Advances
made by it.
VIII-10
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Purchase by the Seller or
Liquidation of All Mortgage Loans.
Subject to Section 9.02, the respective obligations and
responsibilities of the Seller, the Master Servicer and the Trustee created
hereby (other than the obligation of the Trustee to make certain payments after
the Final Distribution Date to Certificateholders and the obligation of the
Master Servicer to send certain notices as hereinafter set forth and the tax
reporting obligations under Sections 4.05 and 8.13 hereof) shall terminate upon
the last action required to be taken by the Trustee on the Final Distribution
Date pursuant to this Article IX following the earlier of (i) the purchase by
the Seller of all Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Estate at a price equal to the sum of (x)
100% of the unpaid principal balance of each Mortgage Loan (other than any REO
Mortgage Loan) as of the Final Distribution Date and (y) the fair market value
of the Mortgaged Property related to any REO Mortgage Loan, plus any accrued and
unpaid interest through the last day of the month preceding the month of such
purchase at the applicable Mortgage Interest Rate less any Fixed Retained Yield
on each Mortgage Loan (including any REO Mortgage Loan) and (z) any
Reimbursement Amount owed to the Trust pursuant to Section 2.03 and (ii) the
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Estate (including for this purpose the
discharge of any Mortgagor under a defaulted Mortgage Loan on which a Servicer
is not obligated to foreclose due to environmental impairment) or the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
ambassador of the United States to the Court of St. ▇▇▇▇▇, living on the date
hereof.
The right of the Seller to purchase all the assets of the Trust
Estate pursuant to clause (i) of the preceding paragraph are subject to Section
9.02 and conditioned upon (A) the Pool Scheduled Principal Balance of the
Mortgage Loans as of the Final Distribution Date being less than the amount set
forth in Section 11.22 and (B) the sum of clause (i)(x) and (y) of the preceding
paragraph being less than or equal to the aggregate fair market value of the
Mortgage Loans (other than any REO Mortgage Loans) and the Mortgaged Properties
related to the REO Mortgage Loans; provided, however, that this clause (B) shall
not apply to any purchase by the Seller if, at the time of the purchase, the
Seller is no longer subject to regulation by the Office of the Comptroller of
the Currency, the FDIC, the Federal Reserve or the Office of Thrift Supervision.
Fair market value for purposes of this paragraph and the preceding paragraph
will be determined by the Master Servicer as of the close of business on the
third Business Day next preceding the date upon which notice of any termination
is furnished to Certificateholders pursuant to the third paragraph of this
Section 9.01. In the case of any purchase by the Seller pursuant to said clause
(i) of the preceding paragraph, the Seller shall provide to the Trustee the
certification required by Section 3.04 and the Trustee and the Custodian shall,
promptly following payment of the purchase price, release to the Seller the
Owner Mortgage Loan Files
IX-1
and Retained Mortgage Loan Files, if applicable, pertaining to the Mortgage
Loans being purchased.
Notice of any termination, specifying the Final Distribution
Date (which shall be a date that would otherwise be a Distribution Date) upon
which the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders mailed not earlier than the 15th day
of the month preceding the month of such final distribution and not later than
the twentieth day of the month of such final distribution specifying (A) the
Final Distribution Date upon which final payment of the Certificates will be
made upon presentation and surrender of Certificates at the office or agency of
the Trustee therein designated, (B) the amount of any such final payment and (C)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made (except in the case of any Class A Certificate
surrendered on a prior Distribution Date pursuant to Section 4.01) only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. If the Seller is exercising its right to purchase,
the Seller shall deposit in the Certificate Account on or before the Final
Distribution Date in immediately available funds an amount equal to the purchase
price for the assets of the Trust Estate computed as above provided. Failure to
give notice of termination as described herein shall not entitle a
Certificateholder to any interest beyond the interest payable on the Final
Distribution Date.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to Certificateholders on the Final Distribution
Date in proportion to their respective Percentage Interests an amount equal to
(i) as to the Classes of Class A Certificates, the respective Principal Balance
together with any related Class A Unpaid Interest Shortfall and one month's
interest in an amount equal to the respective Interest Accrual Amount, (ii) as
to the Classes of Class B Certificates, the respective Principal Balance
together with any related Class B Unpaid Interest Shortfall and one month's
interest in an amount equal to the respective Interest Accrual Amount and (iii)
as to the Class A-R Certificate, the amounts, if any, which remain on deposit in
the Certificate Account (other than amounts retained to meet claims) after
application pursuant to clauses (i), (ii) and (iii) above and payment to the
Master Servicer of any amounts it is entitled as reimbursement or otherwise
hereunder. Notwithstanding the foregoing, if the price paid pursuant to clause
(i) of the first paragraph of this Section 9.01, after reimbursement to the
Servicers, the Master Servicer and the Trustee of any Periodic Advances, is
insufficient to pay in full the amounts set forth in clauses (i), (ii) and (iii)
of this paragraph, then any shortfall in the amount available for distribution
to Certificateholders shall be allocated in reduction of the amounts otherwise
distributable on the Final Distribution Date in the same manner as Realized
Losses are allocated pursuant to Section 4.02(a) hereof. Such distribution on
the Final Distribution Date shall be in lieu of the distribution otherwise
required to be made on such Distribution Date in respect of each Class of
Certificates.
In the event that all of the Certificateholders shall not
surrender their Certificates for final payment and cancellation within three
months following the Final Distribution Date, the Trustee shall on such date
cause all funds, if any, in the Certificate Account not distributed in final
distribution to Certificateholders to be withdrawn therefrom and credited to the
remaining Certificateholders by depositing such funds in a separate escrow
account for the benefit of such Certificateholders. The Trustee shall give a
second written notice to the remaining
IX-2
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within three months after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Trustee may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds on deposit in such escrow account.
Section 9.02 Additional Termination Requirements.
In the event of a termination of the Trust Estate upon the
exercise by the Seller of its purchase option as provided in Section 9.01, the
Trust Estate shall be terminated in accordance with the following additional
requirements, unless the Trustee has received an Opinion of Counsel to the
effect that any other manner of termination (i) will constitute a "qualified
liquidation" of the Trust Estate within the meaning of Code Section
860F(a)(4)(A) and (ii) will not subject the REMIC to federal tax or cause the
Trust Estate to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) The notice given by the Trustee under Section 9.01 shall
provide that such notice constitutes the adoption of a plan of complete
liquidation of the REMIC as of the date of such notice (or, if earlier,
the date on which the first such notice is mailed to
Certificateholders). The Master Servicer shall also specify such date in
a statement attached to the final tax return of the REMIC; and
(ii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the Final Distribution Date, the
Trustee shall sell all of the assets of the Trust Estate to the Seller
for cash at the purchase price specified in Section 9.01 and shall
distribute such cash within 90 days of such adoption in the manner
specified in Section 9.01.
IX-3
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
(a) This Agreement or the Custodial Agreement may be amended
from time to time by the Seller, the Master Servicer and the Trustee without
the consent of any of the Certificateholders, (i) to cure any ambiguity or
mistake, (ii) to correct or supplement any provisions herein or therein which
may be inconsistent with any other provisions herein or therein or in the
related Prospectus, (iii) to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification
of the Trust Estate as a REMIC at all times that any Certificates are
outstanding or to avoid or minimize the risk of the imposition of any federal
tax on the Trust Estate or the REMIC pursuant to the Code that would be a
claim against the Trust Estate, provided that (a) the Trustee has received an
Opinion of Counsel to the effect that such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of the
imposition of any such tax and (b) such action shall not, as evidenced by
such Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder, (iv) to change the timing and/or nature
of deposits into the Certificate Account provided that such change shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder, (v) to modify, eliminate or
add to the provisions of Section 5.02 or any other provisions hereof
restricting transfer of the Certificates, provided that the Master Servicer
for purposes of Section 5.02 has determined in its sole discretion that any
such modifications to this Agreement will neither adversely affect the rating
on the Certificates nor give rise to a risk that the REMIC or any of the
Certificateholders will be subject to a tax caused by a transfer to a
non-permitted transferee and (vi) to make any other provisions with respect
to matters or questions arising under this Agreement or such Custodial
Agreement which shall not be materially inconsistent with the provisions of
this Agreement, provided that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder. Notwithstanding the foregoing, any amendment pursuant
to clause (iv) or (vi) shall not be deemed to adversely affect in any
material respect the interest of Certificateholders and no Opinion of Counsel
to that effect shall be required if the person requesting the amendment
instead obtains a letter from each Rating Agency stating that the amendment
would not result in the downgrading or withdrawal of the respective ratings
then assigned to the Certificates.
This Agreement or the Custodial Agreement may also be amended
from time to time by the Seller, the Master Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66-2/3% of the aggregate Voting Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or such Custodial Agreement
or of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall (i) reduce in any manner
the amount of, or delay the timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate without the consent of the
Holder of such Certificate, (ii) adversely affect in
X-1
any material respect the interest of the Holders of Certificates of any Class in
a manner other than as described in clause (i) hereof without the consent of
Holders of Certificates of such Class evidencing, as to such Class, Voting
Interests aggregating not less than 66-2/3% or (iii) reduce the aforesaid
percentage of Certificates of any Class the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all
Certificates of such Class then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel to the effect that such amendment will
not subject the REMIC to tax or cause the Trust Estate to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment requiring the
consent of Certificateholders, the Trustee shall furnish written notification of
the substance of such amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01(a) to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(b) [Reserved]
Section 10.02 Recordation of Agreement.
This Agreement (or an abstract hereof, if acceptable to the
applicable recording office) is subject to recordation in all appropriate public
offices for real property records in all the towns or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public office or elsewhere, such recordation to be
effected by the Master Servicer and at its expense on direction by the Trustee,
but only upon direction accompanied by an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 10.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Estate, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust Estate, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
X-2
Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust Estate, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association, nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates evidencing not less than 25% of the Voting Interest
represented by all Certificates shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the cost, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 10.04 Governing Law; Jurisdiction.
This Agreement shall be construed in accordance with the laws of
the State of New York (without regard to conflicts of laws principles), and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 10.05 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by certified or registered mail, return receipt requested (i) in the
case of the Seller, to ▇▇▇▇▇ Fargo Asset Securities Corporation, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President Structured
Finance, or such other address as may hereafter be furnished to the Master
Servicer and the Trustee in writing by the Seller, (ii) in the case of the
Master Servicer, to ▇▇▇▇▇ Fargo Bank Minnesota, National Association, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President, Structured
Finance or such other address as may hereafter be furnished to
X-3
the Seller and the Trustee in writing by the Master Servicer and (iii) in the
case of the Trustee, to the Corporate Trust Office or such other address as may
hereafter be furnished to the Seller and the Master Servicer in writing by the
Trustee, in each case Attention: Corporate Trust Department. Any notice required
or permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice mailed or transmitted within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the addressee receives such notice, provided, however, that any demand, notice
or communication to or upon the Seller, the Master Servicer or the Trustee shall
not be effective until received.
For all purposes of this Agreement, in the absence of actual
knowledge by an officer of the Master Servicer, the Master Servicer shall not be
deemed to have knowledge of any act or failure to act of any Servicer unless
notified thereof in writing by the Trustee, the Servicer or a Certificateholder.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Special Notices to Rating Agencies.
(a) The Trustee shall give prompt notice to each Rating
Agency of the occurrence of any of the following events of which it has
notice:
(i) any amendment to this Agreement pursuant to Section
10.01(a);
(ii) any sale or transfer of the Class B Certificates
pursuant to Section 5.02 to an affiliate of the Seller;
(iii) any assignment by the Master Servicer of its rights and
delegation of its duties pursuant to Section 6.06;
(iv) any resignation of the Master Servicer pursuant to
Section 6.04;
(v) the occurrence of any of the Events of Default described
in Section 7.01;
(vi) any notice of termination given to the Master Servicer
pursuant to Section 7.01;
(vii) the appointment of any successor to the Master Servicer
pursuant to Section 7.05; or
(viii) the making of a final payment pursuant to Section 9.01.
(b) The Master Servicer shall give prompt notice to each
Rating Agency of the occurrence of any of the following events:
X-4
(i) the resignation of the Custodian or the appointment of a
successor Custodian pursuant to the Custodial Agreement;
(ii) the resignation or removal of the Trustee pursuant to
Section 8.08;
(iii) the appointment of a successor trustee pursuant to
Section 8.09; or
(iv) the sale, transfer or other disposition in a single
transaction of 50% or more of the equity interests in the Master
Servicer.
(c) The Master Servicer shall deliver to each Rating Agency:
(i) reports prepared pursuant to Section 3.05; and
(ii) statements prepared pursuant to Section 4.04.
Section 10.08 Covenant of Seller.
The Seller shall not amend Article Third of its Certificate of
Incorporation without the prior written consent of each Rating Agency rating the
Certificates.
Section 10.09 Recharacterization.
The Parties intend the conveyance by the Seller to the Trustee
of all of its right, title and interest in and to the Mortgage Loans pursuant to
this Agreement to constitute a purchase and sale and not a loan. Notwithstanding
the foregoing, to the extent that such conveyance is held not to constitute a
sale under applicable law, it is intended that this Agreement shall constitute a
security agreement under applicable law and that the Seller shall be deemed to
have granted to the Trustee a first priority security interest in all of the
Seller's right, title and interest in and to the Mortgage Loans.
X-5
ARTICLE XI
TERMS FOR CERTIFICATES
Section 11.01 Class A Fixed Pass-Through Rate.
The Class A Fixed Pass-Through Rate is ______% per annum.
Section 11.02 Cut-Off Date.
The Cut-Off Date for the Certificates is _____________, 200_.
Section 11.03 Cut-Off Date Aggregate Principal Balance.
The Cut-Off Date Aggregate Principal Balance is $____________.
Section 11.04 Original Class A Percentage.
The Original Class A Percentage is ________________%.
Section 11.05 Original Principal Balances of the Classes of
Class A Certificates.
As to the following Classes of Class A Certificates, the
Principal Balance of such Class as of the Cut-Off Date, is as follows:
Original
Class Principal Balance
----- -----------------
Class A-1 $________________
Class A-2 $________________
Class A-3 $________________
Class A-4 $________________
Class A-PO $________________
Class A-R $________________
Section 11.06 Original Class A Non-PO Principal Balance.
The Original Class A Non-PO Principal Balance is $_____________.
Section 11.07 Original Subordinated Percentage.
The Original Subordinated Percentage is ________________%.
Section 11.08 Original Class B Principal Balance.
The Original Class B Principal Balance is $________________.
XI-1
Section 11.09 Original Principal Balances of the Classes of
Class B Certificates.
As to the following Classes of Class B Certificate, the
Principal Balance of such Class as of the Cut-Off Date, is as follows:
Class Original Principal Balance
----- --------------------------
Class B-1 $________________
Class B-2 $________________
Class B-3 $________________
Class B-4 $________________
Class B-5 $________________
Class B-6 $________________
Section 11.10 Original Class B-1 Fractional Interest.
The Original Class B-1 Fractional Interest is ________________%.
Section 11.11 Original Class B-2 Fractional Interest.
The Original Class B-2 Fractional Interest is ________________%.
Section 11.12 Original Class B-3 Fractional Interest.
The Original Class B-3 Fractional Interest is ________________%.
Section 11.13 Original Class B-4 Fractional Interest.
The Original Class B-4 Fractional Interest is ________________%.
Section 11.14 Original Class B-5 Fractional Interest.
The Original Class B-5 Fractional Interest is ________________%.
Section 11.15 Original Class B-1 Percentage.
The Original Class B-1 Percentage is ________________%.
Section 11.16 Original Class B-2 Percentage.
The Original Class B-2 Percentage is ________________%.
Section 11.17 Original Class B-3 Percentage.
The Original Class B-3 Percentage is ________________%.
Section 11.18 Original Class B-4 Percentage.
The Original Class B-4 Percentage is ________________%.
XI-2
Section 11.19 Original Class B-5 Percentage.
The Original Class B-5 Percentage is ________________%.
Section 11.20 Original Class B-6 Percentage.
The Original Class B-6 Percentage is ________________%.
Section 11.21 Closing Date.
The Closing Date is ____________, 200__.
Section 11.22 Right to Purchase.
The right of the Seller to purchase all of the Mortgage Loans
pursuant to Section 9.01 hereof shall be conditioned upon the Pool Scheduled
Principal Balance of the Mortgage Loans being less than $________________ (10%
of the Cut-Off Date Aggregate Principal Balance) at the time of any such
purchase.
Section 11.23 Wire Transfer Eligibility.
With respect to the Class A Certificates (other than the Class
A-R Certificates) and the Class B Certificates, the minimum Denomination
eligible for wire transfer on each Distribution Date is $100,000. The Class A-R
Certificate is not eligible for wire transfer.
Section 11.24 Single Certificate.
A Single Certificate for each Class of Class A Certificates
(other than the Class A-4, Class A-PO and Class A-R Certificates) represents a
$________________ Denomination. A Single Certificate for the Class A-4, Class
A-PO, Class B-1, Class B-2 and Class B-3 Certificates represents a
$________________ Denomination. A Single Certificate for the Class B-4, Class
B-5 and Class B-6 Certificates represents a $250,000 Denomination. A Single
Certificate for the Class A-R Certificate represents a $100 Denomination.
Section 11.25 Servicing Fee Rate.
The rate used to calculate the Servicing Fee is equal to such
rate as is set forth on the Mortgage Loan Schedule with respect to a Mortgage
Loan.
Section 11.26 Master Servicing Fee Rate.
The rate used to calculate the Master Servicing Fee for each
Mortgage Loan is 0.010% per annum.
XI-3
IN WITNESS WHEREOF, the Seller, the Master Servicer and the
Trustee have caused their names to be signed hereto by their respective officers
thereunto duly authorized, all as of the day and year first above written.
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
as Seller
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
as Master Servicer
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
[TRUSTEE]
as Trustee
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
Attest:
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
STATE OF ________________)
ss.:
COUNTY OF _______________)
On this ____ day of ____________, 200_, before me, a notary
public in and for the State of ________________, personally appeared
____________________, known to me who, being by me duly sworn, did depose and
say that he resides at __________, __________; that he is a _________________ of
▇▇▇▇▇ Fargo Asset Securities Corporation, a Delaware corporation, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of said corporation.
________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ________________)
ss.:
COUNTY OF _______________)
On this ____ day of ____________, 200_, before me, a notary
public in and for the State of ________________, personally appeared
____________________, known to me who, being by me duly sworn, did depose and
say that he resides at __________, __________; that he is a _________________ of
▇▇▇▇▇ Fargo Bank Minnesota, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
he signed his name thereto by order of the Board of Directors of said
association.
________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ________________)
ss.:
COUNTY OF _______________)
On this ____ day of ____________, 200_, before me, a notary
public in and for the State of ________________, personally appeared
____________________, known to me who, being by me duly sworn, did depose and
say that he resides at __________, __________; that he is a _________________ of
[TRUSTEE], a national banking association, one of the parties that executed the
foregoing instrument; and that s/he signed his/her name thereto by order of the
Board of Directors of said association.
________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ________________)
ss.:
COUNTY OF _______________)
On this ____ day of ____________, 200_, before me, a notary
public in and for the State of ________________, personally appeared
____________________, known to me who, being by me duly sworn, did depose and
say that he resides at __________, __________; that he is a _________________ of
[TRUSTEE], a _________________, one of the parties that executed the foregoing
instrument; and that s/he signed his/her name thereto by order of the Board of
Directors of said association.
________________________
Notary Public
[NOTARIAL SEAL]
SCHEDULE I
▇▇▇▇▇ Fargo Asset Securities Corporation,
Mortgage Pass-Through Certificates, Series 200_-__
Applicable Unscheduled Principal Receipt Period
Full Unscheduled Partial Unscheduled
Servicer Principal Receipts Principal Receipts
---------------------- ----------------------- ------------------------
WFHM (Exhibit F-1) Mid-Month Mid-Month
[SERVICER] [Mid-Month] [Prior Month]
[SERVICER] [Mid-Month] [Prior Month]
EXHIBIT A-1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-1
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: ___________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: ___________,
20__
THIS CERTIFIES THAT ___________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class A-1 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans"), formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-1 Certificates required to be distributed to
Holders of the Class A-1 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-1 Certificates applicable to each Distribution Date will be _______% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-1 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
A-1-2
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
---------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS A-2 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-2
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: ___________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: __________,
20__
THIS CERTIFIES THAT ___________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class A-2 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans"), formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-2 Certificates required to be distributed to
Holders of the Class A-2 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-2 Certificates applicable to each Distribution Date will be _______% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-2 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
A-2-2
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
---------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS A-3 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-3
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: ____________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: __________,
20__
THIS CERTIFIES THAT ___________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class A-3 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans"), formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-3 Certificates required to be distributed to
Holders of the Class A-3 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-3 Certificates applicable to each Distribution Date will be _______% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-3 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
A-3-2
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS A-4 CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-4
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
AFTER THE SUBORDINATION DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS A-3 CERTIFICATES WILL BE BORNE BY THE
CLASS A-4 CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: __________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: __________,
20__
A-4-2
THIS CERTIFIES THAT ___________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class A-4 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans"), formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-4 Certificates required to be distributed to
Holders of the Class A-4 Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-4 Certificates applicable to each Distribution Date will be _______% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-4 Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
A-4-3
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
A-4-5
EXHIBIT A-PO
[FORM OF FACE OF CLASS A-PO CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-PO
evidencing an interest in a pool of fixed interest rate,
conventional, monthly pay, fully amortizing, first lien,
one- to four-family residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN). ACCORDINGLY, THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: __________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: __________,
20__
THIS CERTIFIES THAT ____________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class A-PO Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans"), formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
Distribution Amount for the Class A-PO Certificates required to be distributed
to Holders of the Class A-PO Certificates on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. The Class A-PO
Certificates are not entitled to distributions in respect of interest.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
A-PO-2
Unless this Certificate has been countersigned by an authorized
officer of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-PO-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By:
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By:
-----------------------------
Authorized Officer
A-PO-4
EXHIBIT A-R
[Form of Face of Class A-R Certificate]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(d) OF THE
AGREEMENT (AS DEFINED HEREIN), AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO
THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, IT IS NOT
A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5),
AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR A DISQUALIFIED
ORGANIZATION OR A NON-PERMITTED FOREIGN HOLDER, AS DEFINED IN SECTION 5.02(d) OF
THE AGREEMENT AND TO HAVE AGREED TO SUCH AMENDMENTS TO AGREEMENT AS MAY BE
REQUIRED TO FURTHER EFFECTUATE THE RESTRICTIONS ON TRANSFERS TO DISQUALIFIED
ORGANIZATIONS, AGENTS THEREOF OR NON-PERMITTED FOREIGN HOLDERS.
THE HOLDER OF THIS CLASS A-R CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO
HAVE AGREED TO THE DESIGNATION OF THE MASTER SERVICER AS ITS AGENT TO ACT AS
"TAX MATTERS PERSON" OF THE REMIC TO PERFORM THE FUNCTIONS OF A "TAX MATTERS
PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE,
OR, IF SO REQUESTED BY THE MASTER SERVICER, TO ACT AS TAX MATTERS PERSON OF THE
REMIC.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE CODE OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS A-R
evidencing an interest in a pool of fixed
interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to
four-family residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: ___________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: __________,
20__
A-R-2
THIS CERTIFIES THAT __________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate in monthly
distributions to the Holder of the Class A-R Certificate with respect to a Trust
Estate consisting of a pool of fixed interest rate, conventional, monthly pay,
fully amortizing, first lien, one- to four-family residential mortgage loans,
other than the Fixed Retained Yield, if any, with respect thereto (the "Mortgage
Loans"), formed by ▇▇▇▇▇ Fargo Asset Securities Corporation (hereinafter called
the "Seller", which term includes any successor entity under the Agreement
referred to below). The Trust Estate was created pursuant to a Pooling and
Servicing Agreement dated as of ____________, 200_ (the "Agreement") among the
Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as master servicer
(the "Master Servicer") and [TRUSTEE], as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereinafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to such terms in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class A
Distribution Amount for the Class A-R Certificate required to be distributed to
the Holder of the Class A-R Certificate on such Distribution Date, subject to
adjustment in certain events as specified in the Agreement. Distributions in
reduction of the Principal Balance of certain Classes of Class A Certificates
may not commence on the first Distribution Date specified above. Distributions
of principal will be allocated among the Classes of Class A Certificates in
accordance with the provisions of the Agreement. The pass-through rate on the
Class A-R Certificate applicable to each Distribution Date will be _______% per
annum. The amount of interest which accrues on this Certificate in any month
will be subject to reduction with respect to any Non-Supported Interest
Shortfall, any Relief Act Shortfall and the interest portion of certain Realized
Losses allocated to the Class A-R Certificate, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
A-R-3
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-R-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
A-R-5
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-1
evidencing an interest in a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: __________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: ________,
20__
THIS CERTIFIES THAT ____________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class B-1 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans") formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates as specified in the Agreement, any
Class B-1 Distribution Amount required to be distributed to Holders of the Class
B-1 Certificates on such Distribution Date, subject to adjustment, in certain
events, as specified in the Agreement. The pass-through rate on the Class B-1
Certificates applicable to each Distribution Date will be _______% per annum.
The amount of interest which accrues on this Certificate in any month will be
subject to reduction with respect to any Non-Supported Interest Shortfall and
Relief Act Shortfall allocated to the Class B-1 Certificates, as described in
the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
B-1-2
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
B-1-4
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AND THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED
HEREIN).
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-2
evidencing an interest in a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: __________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: ________,
20__
THIS CERTIFIES THAT ____________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class B-2 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans") formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-2 Distribution Amount required to be distributed to
Holders of the Class B-2 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-2 Certificates applicable to each Distribution Date will be
_______% per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-2
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
B-2-2
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-2-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
B-2-4
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES AND THE CLASS B-2 CERTIFICATES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE SELLER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-3
evidencing an interest in a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: ___________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: ________,
20__
THIS CERTIFIES THAT _______________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class B-3 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans") formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-3 Distribution Amount required to be distributed to
Holders of the Class B-3 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-3 Certificates applicable to each Distribution Date will be
_______% per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-3
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
B-3-2
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-3-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
B-3-4
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES AND THE
CLASS B-3 CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT REFERRED TO HEREIN, THIS
CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT
DELIVERED A REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS
SET FORTH IN THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-4
evidencing an interest in a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: __________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: ________,
20__
B-4-2
THIS CERTIFIES THAT ____________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class B-4 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans") formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-4 Distribution Amount required to be distributed to
Holders of the Class B-4 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-4 Certificates applicable to each Distribution Date will be
_______% per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-4
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
No transfer of a Class B-4 Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is desired
to be made by the Holder hereof, (i) the transferee will be required to execute
an investment letter in the form described in the Agreement and (ii) if such
transfer is to be made within three years from the later of (a) the date of
initial issuance of the Certificates or (b) the last
B-4-3
date on which the Seller or any affiliate thereof was a Holder of the
Certificates proposed to be transferred, and unless such transfer is made in
reliance on Rule 144A of the Securities Act of 1933, as amended, the Trustee or
the Seller may require the Holder to deliver an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee and the Seller that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act of 1933, as amended, and of any applicable statute of any state.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Seller, the Master Servicer, and any Paying Agent
acting on behalf of the Trustee against any liability that may result if the
transfer is not so exempt or is not made in accordance with such Federal and
state laws. In connection with any such transfer, the Trustee will also require
(i) a representation letter, in the form as described in the Agreement, stating
either (a) that the transferee is not a Plan and is not acting on behalf of a
Plan or using the assets of a Plan to effect such purchase or (b) subject to
certain conditions described in the Agreement, that the source of funds used to
purchase this Certificate is an "insurance company general account," or (ii) if
such transferee is a Plan, (a) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee and the Seller with respect to certain
matters and (b) such other documentation as the Seller or the Master Servicer
may require, as described in the Agreement.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-4-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
B-4-5
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS
B-3 CERTIFICATES AND THE CLASS B-4 CERTIFICATES AS DESCRIBED IN THE AGREEMENT
(AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT REFERRED TO HEREIN, THIS
CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT
DELIVERED A REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON
BEHALF OF OR INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS
SET FORTH IN THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-5
evidencing an interest in a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: __________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: ________,
20__
B-5-2
THIS CERTIFIES THAT ____________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class B-5 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans") formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-5 Distribution Amount required to be distributed to
Holders of the Class B-5 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-5 Certificates applicable to each Distribution Date will be
_______% per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-5
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
No transfer of a Class B-5 Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is desired
to be made by the Holder hereof, (i) the transferee will be required to execute
an investment letter in the form described in the Agreement and (ii) if such
transfer is to be made within three years from the later of (a) the date of
initial issuance of the Certificates or (b) the last
B-5-3
date on which the Seller or any affiliate thereof was a Holder of the
Certificates proposed to be transferred, and unless such transfer is made in
reliance on Rule 144A of the Securities Act of 1933, as amended, the Trustee or
the Seller may require the Holder to deliver an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee and the Seller that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act of 1933, as amended, and of any applicable statute of any state.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Seller, the Master Servicer, and any Paying Agent
acting on behalf of the Trustee against any liability that may result if the
transfer is not so exempt or is not made in accordance with such Federal and
state laws. In connection with any such transfer, the Trustee will also require
(i) a representation letter, in the form as described in the Agreement, stating
either (a) that the transferee is not a Plan and is not acting on behalf of a
Plan or using the assets of a Plan to effect such purchase or (b) subject to
certain conditions described in the Agreement, that the source of funds used to
purchase this Certificate is an "insurance company general account," or (ii) if
such transferee is a Plan, (a) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee and the Seller with respect to certain
matters and (b) such other documentation as the Seller or the Master Servicer
may require, as described in the Agreement.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-5-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
B-5-5
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS B-1 CERTIFICATES, THE CLASS B-2 CERTIFICATES, THE CLASS
B-3 CERTIFICATES, THE CLASS B-4 CERTIFICATES AND THE CLASS B-5 CERTIFICATES AS
DESCRIBED IN THE AGREEMENT (AS DEFINED HEREIN).
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
EXCEPT AS PROVIDED IN SECTION 5.02(C) OF THE AGREEMENT, THIS CERTIFICATE MAY NOT
BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT HAS NOT DELIVERED A
REPRESENTATION LETTER STATING EITHER (A) THAT THE TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN OR (B) SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE AGREEMENT, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN
"INSURANCE COMPANY GENERAL ACCOUNT."
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 200_-__, CLASS B-6
evidencing an interest in a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family
residential mortgage loans sold by
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
(Not an interest in or obligation of the Seller)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN
INTEREST IN, THE SELLER, THE MASTER SERVICER, THE TRUSTEE OR ANY OF THEIR
AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE SELLER, THE MASTER SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY GOVERNMENT AGENCY OR PRIVATE
INSURER.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. Cut-Off Date: __________, 20__
CUSIP No.: First Distribution Date: _________, 20__
Percentage Interest evidenced Denomination: $
by this Certificate: %
Final Scheduled Maturity Date: ________,
20__
B-6-2
THIS CERTIFIES THAT ____________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate in
monthly distributions to the Holders of the Class B-6 Certificates with respect
to a Trust Estate consisting of a pool of fixed interest rate, conventional,
monthly pay, fully amortizing, first lien, one- to four-family residential
mortgage loans, other than the Fixed Retained Yield, if any, with respect
thereto (the "Mortgage Loans") formed by ▇▇▇▇▇ Fargo Asset Securities
Corporation (hereinafter called the "Seller", which term includes any successor
entity under the Agreement referred to below). The Trust Estate was created
pursuant to a Pooling and Servicing Agreement dated as of ____________, 200_
(the "Agreement") among the Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as master servicer (the "Master Servicer") and [TRUSTEE], as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereinafter. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to such terms in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month preceding the month of such distribution, in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and, subject to
the prior rights of the Class A Certificates and each Class of Class B
Certificates bearing a lower numerical designation as specified in the
Agreement, any Class B-6 Distribution Amount required to be distributed to
Holders of the Class B-6 Certificates on such Distribution Date, subject to
adjustment, in certain events, as specified in the Agreement. The pass-through
rate on the Class B-6 Certificates applicable to each Distribution Date will be
_______% per annum. The amount of interest which accrues on this Certificate in
any month will be subject to reduction with respect to any Non-Supported
Interest Shortfall and Relief Act Shortfall allocated to the Class B-6
Certificates, as described in the Agreement.
Distributions on this Certificate will be made on behalf of the
Trustee either by the Master Servicer or by a Paying Agent appointed by the
Master Servicer by check mailed to the address of the Person entitled thereto,
as such name and address shall appear on the Certificate Register, unless such
Person is entitled to receive payments by wire transfer in immediately available
funds in accordance with the Agreement and such Person has notified the Master
Servicer pursuant to the Agreement that such payments are to be made by wire
transfer of immediately available funds. Notwithstanding the above, the final
distribution in reduction of the Principal Balance of this Certificate will be
made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency specified
by the Trustee for that purpose in the notice of final distribution.
No transfer of a Class B-6 Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws or is made in
accordance with said Act and laws. In the event that such a transfer is desired
to be made by the Holder hereof, (i) the transferee will be required to execute
an investment letter in the form described in the Agreement and (ii) if such
transfer is to be made within three years from the later of (a) the date of
initial issuance of the Certificates or (b) the last
B-6-3
date on which the Seller or any affiliate thereof was a Holder of the
Certificates proposed to be transferred, and unless such transfer is made in
reliance on Rule 144A of the Securities Act of 1933, as amended, the Trustee or
the Seller may require the Holder to deliver an opinion of counsel acceptable to
and in form and substance satisfactory to the Trustee and the Seller that such
transfer is exempt (describing the applicable exemption and the basis therefor)
from or is being made pursuant to the registration requirements of the
Securities Act of 1933, as amended, and of any applicable statute of any state.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee, the Seller, the Master Servicer, and any Paying Agent
acting on behalf of the Trustee against any liability that may result if the
transfer is not so exempt or is not made in accordance with such Federal and
state laws. In connection with any such transfer, the Trustee will also require
(i) a representation letter, in the form as described in the Agreement, stating
either (a) that the transferee is not a Plan and is not acting on behalf of a
Plan or using the assets of a Plan to effect such purchase or (b) subject to
certain conditions described in the Agreement, that the source of funds used to
purchase this Certificate is an "insurance company general account," or (ii) if
such transferee is a Plan, (a) an opinion of counsel acceptable to and in form
and substance satisfactory to the Trustee and the Seller with respect to certain
matters and (b) such other documentation as the Seller or the Master Servicer
may require, as described in the Agreement.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate constitutes a "regular interest" in a "real
estate mortgage investment conduit" as those terms are defined in Section
860G(a)(1) and Section 860D, respectively, of the Internal Revenue Code of 1986,
as amended.
Unless this Certificate has been countersigned by an authorized
officer of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-6-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed as of the date set forth below.
Dated:
[TRUSTEE],
Trustee
By
--------------------------
Authorized Officer
Countersigned:
[TRUSTEE],
Trustee
By
-----------------------
Authorized Officer
B-6-5
EXHIBIT C
[Form of Reverse of Series 200_-__ Certificates]
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 200_-__
This Certificate is one of a duly authorized issue of
Certificates issued in several Classes designated as Mortgage Pass-Through
Certificates of the Series specified hereon (herein collectively called the
"Certificates").
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. In the event funds are
advanced with respect to any Mortgage Loan by a Servicer, the Master Servicer or
the Trustee, such advances are reimbursable to such Servicer, the Master
Servicer or the Trustee to the extent provided in the Agreement, from related
recoveries on such Mortgage Loan or from other cash that would have been
distributable to Certificateholders.
As provided in the Agreement, withdrawals from the Certificate
Account created for the benefit of Certificateholders may be made by the Master
Servicer from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement to a Servicer, the
Master Servicer or the Trustee, as applicable, of advances made by such
Servicer, the Master Servicer or the Trustee.
The Agreement permits, with certain exceptions therein provided,
the amendment of the Agreement and the modification of the rights and
obligations of the Seller, the Master Servicer and the Trustee and the rights of
the Certificateholders under the Agreement at any time by the Seller, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66 2/3% of the Voting Interests of
each Class of Certificates affected thereby. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency appointed by the Trustee, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar, duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized Denominations
evidencing the same Class and aggregate Percentage Interest will be issued to
the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in Classes and Denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of
C-1
authorized Denominations evidencing the same Class and aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Seller, the Master Servicer, the Trustee and the Certificate
Registrar, and any agent of the Seller, the Master Servicer, the Trustee or the
Certificate Registrar, may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Seller, the
Master Servicer, the Trustee, the Certificate Registrar nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement in respect of the
Certificates and the Trust Estate created thereby shall terminate upon the last
action required to be taken by the Trustee on the Final Distribution Date
pursuant to the Agreement following the earlier of (i) the payment or other
liquidation (or advance with respect thereto) of the last Mortgage Loan subject
thereto or the disposition of all property acquired upon foreclosure or deed in
lieu of foreclosure of any Mortgage Loan, and (ii) the purchase by the Seller
from the Trust Estate of all remaining Mortgage Loans and all property acquired
in respect of such Mortgage Loans; provided, however, that the Trust Estate will
in no event continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of
the United States to the Court of St. ▇▇▇▇▇, living on the date of the
Agreement. The Agreement permits, but does not require, the Seller to purchase
all remaining Mortgage Loans and all property acquired in respect of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such option will effect early retirement of the Certificates, the Seller's
right to exercise such option being subject to the Pool Scheduled Principal
Balance of the Mortgage Loans as of the Distribution Date upon which the
proceeds of such repurchase are distributed being less than ten percent of the
Cut-Off Date Aggregate Principal Balance.
C-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including
postal zip code of assignee)
the beneficial interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Estate.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like Denomination or Percentage Interest and Class, to the
above named assignee and deliver such Certificate to the following address:
=======================================================
Social Security or other Identifying Number of Assignee:
________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
C-3
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, if the assignee is eligible to
receive distributions in immediately available funds, by wire transfer or
otherwise, in immediately available funds to ________________________________
_________________________________ for the account of __________________________
_____________________ account number _____________, or, if mailed by check, to
_______________________________________________________. Applicable statements
should be mailed to __________________________________________________________.
This information is provided by ______________________, the
assignee named above, or ___________________________________, as its agent.
C-4
EXHIBIT D
RESERVED
EXHIBIT E
[Custodial Agreement]
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time
to time, the "Agreement"), dated as of ___________, 200_, by and among
[TRUSTEE], not individually, but solely as Trustee (including its successors
under the Pooling and Servicing Agreement defined below, the "Trustee"), ▇▇▇▇▇
FARGO ASSET SECURITIES CORPORATION (together with any successor in interest, the
"Seller"), ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (together with any
successor in interest or successor under the Pooling and Servicing Agreement
referred to below, the "Master Servicer") and ▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION (together with any successor in interest or any successor
appointed hereunder, the "Custodian").
W I T N E S S E T H T H A T
WHEREAS, the Seller, the Master Servicer, and the Trustee, have
entered into a Pooling and Servicing Agreement dated as of ___________, 200_
relating to the issuance of Mortgage Pass-Through Certificates, Series 200_-__
(as amended and supplemented from time to time, the "Pooling and Servicing
Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the
Trustee for the purposes of receiving and holding certain documents and other
instruments delivered by the Seller under the Pooling and Servicing Agreement,
all upon the terms and conditions and subject to the limitations hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Seller, the
Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein
shall have the meanings assigned in the Pooling and Servicing Agreement, unless
otherwise required by the context herein.
ARTICLE II
CUSTODY OF MORTGAGE DOCUMENTS
Section 2.1. Custodian to Act as Agent; Acceptance of Custodial
Files. Subject to Section 2.3 hereof, the Custodian, as the duly appointed agent
of the Trustee for these purposes, declares that it holds and will hold the
documents delivered to it pursuant to Section 2.01 of the Pooling and Servicing
Agreement and any other documents constituting part of the Owner Mortgage Loan
File received on or subsequent to the date hereof (the "Custodial Files") as
agent for the Trustee, in trust, for the use and benefit of all present and
future Certificateholders.
Section 2.2. Recordation of Assignments. Unless an assignment of
a Mortgage is not required to be recorded in accordance with Section 2.01 of the
Pooling and Servicing Agreement, if any Custodial File includes one or more
assignments to the Trustee of Mortgage Notes and related Mortgages that have not
been recorded, each such assignment shall be delivered by the Custodian to the
Seller for the purpose of recording it in the appropriate public office for real
property records, and the Seller, at no expense to the Custodian, shall promptly
cause to be recorded in the appropriate public office for real property records
each such assignment and, upon receipt thereof from such public office, shall
return each such assignment to the Custodian.
Section 2.3. Review of Custodial Files. The Custodian agrees,
for the benefit of Certificateholders, to review, in accordance with the
provisions of Section 2.02 of the Pooling and Servicing Agreement, each
Custodial File and to provide the initial and final certifications in the forms
of Exhibits N and O to the Pooling and Servicing Agreement in accordance with
the provisions thereof. If in performing the review required by this Section 2.3
the Custodian finds any document or documents constituting a part of a Custodial
File to be missing or defective, the Custodian shall follow the procedures
specified in the Pooling and Servicing Agreement.
Section 2.4. Notification of Breaches of Representations and
Warranties. Upon discovery by the Custodian of a breach of any representation or
warranty made by the Seller or the Master Servicer as set forth in the Pooling
and Servicing Agreement, the Custodian shall follow the procedures specified in
the Pooling and Servicing Agreement.
Section 2.5. Custodian to Cooperate; Release of Custodial Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Master Servicer or applicable Servicer shall
immediately deliver to the Custodian two copies of a Request for Release or such
request in an electronic format acceptable to the Custodian and shall request
delivery to it of the Custodial File. The Custodian agrees, within five business
days of receipt of such Request for Release, to release the related Custodial
File to the Master Servicer or applicable Servicer.
From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, the Master Servicer or applicable Servicer
shall deliver to the Custodian two copies of a Request for Release of a
Servicing Officer requesting that possession of the Custodial
File be released to the Master Servicer and certifying as to the reason for such
release. Upon receipt of the foregoing, the Custodian shall deliver the
Custodial File to the Master Servicer or applicable Servicer. The Master
Servicer or applicable Servicer shall cause each Custodial File therein so
released to be returned to the Custodian when the need therefor by the Master
Servicer or applicable Servicer no longer exists, unless (i) the Mortgage Loan
has been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have been deposited in the Certificate Account to the extent required by the
Pooling and Servicing Agreement or (ii) the Custodial File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially. In the event of the liquidation of a Mortgage Loan, the Master
Servicer or applicable Servicer shall deliver two copies of a Request for
Release with respect thereto to the Custodian upon deposit of the related
Liquidation Proceeds in the Certificate Account to the extent required by the
Pooling and Servicing Agreement.
Section 2.6. Assumption Agreements. In the event that any
assumption agreement or substitution of liability agreement is entered into with
respect to any Mortgage Loan subject to this Agreement in accordance with the
terms and provisions of the Pooling and Servicing Agreement, the Master Servicer
shall notify the Custodian that such assumption or substitution agreement has
been completed by forwarding to the Custodian the original of such assumption or
substitution agreement, which copy shall be added to the related Custodial File
and, for all purposes, shall be considered a part of such Custodial File to the
same extent as all other documents and instruments constituting parts thereof.
ARTICLE III
CONCERNING THE CUSTODIAN
Section 3.1. Custodian a Bailee and Agent of the Trustee. With
respect to each Mortgage Note, Mortgage and other documents constituting each
Custodian File which are delivered to the Custodian, the Custodian is
exclusively the bailee and agent of the Trustee, holds such documents for the
benefit of Certificateholders and undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement and in the Pooling
and Servicing Agreement. All provisions of the Pooling and Servicing Agreement
setting forth duties of the Custodian in more detail are hereby incorporated by
reference into this Agreement. Except upon compliance with the provisions of
Section 2.5 of this Agreement and the provisions of the Pooling and Servicing
Agreement, no Mortgage Note, Mortgage or other document constituting a part of a
Custodial File shall be delivered by the Custodian to the Seller or the Master
Servicer or otherwise released from the possession of the Custodian.
Section 3.2. Indemnification. The Seller hereby agrees to
indemnify and hold the Custodian harmless from and against all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which the Custodian
may incur or with which the Custodian may be threatened by reasons of its acting
as custodian under this Agreement, including indemnification of the Custodian
against any and all expenses, including attorney's fees if counsel for the
Custodian has been approved by the Seller, and the cost of defending any action,
suit or proceedings or resisting any claim.
Notwithstanding the foregoing, it is specifically understood and agreed that in
the event any such claim, liability, loss, action, suit or proceeding or other
expense, fees, or charge shall have been caused by reason of any negligent act,
negligent failure to act, or willful misconduct on the part of the Custodian, or
which shall constitute a willful breach of its duties hereunder, the
indemnification provisions of this Agreement shall not apply.
Section 3.3. Custodian May Own Certificates. The Custodian in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Custodian.
Section 3.4. Master Servicer to Pay Custodian's Fees and
Expenses. The Master Servicer covenants and agrees to pay to the Custodian from
time to time, and the Custodian shall be entitled to, reasonable compensation
for all services rendered by it in the exercise and performance of any of the
powers and duties hereunder of the Custodian, and the Master Servicer will pay
or reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith.
Section 3.5. Custodian May Resign; Trustee May Remove Custodian.
The Custodian may resign from the obligations and duties hereby imposed upon it
as such obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such notice of resignation, the Trustee shall either take
custody of the Custodial Files itself and give prompt notice thereof to the
Seller, the Master Servicer and the Custodian or promptly appoint a successor
Custodian by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Custodian and one copy to the successor
Custodian. If the Trustee shall not have taken custody of the Custodial Files
and no successor Custodian shall have been so appointed and have accepted
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee, upon 60 days written notice, may remove the
Custodian. In such event, the Trustee shall appoint, or petition a court of
competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision or
examination by federal or state authority and shall be able to satisfy the other
requirements contained in Section 3.7.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.5 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Seller and the Master Servicer of the
appointment of any successor Custodian. No successor Custodian shall have been
appointed and accepted appointment by the Trustee without the prior approval of
the Seller and the Master Servicer.
Section 3.6. Merger or Consolidation of Custodian. Any Person
into which the Custodian 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 Custodian shall be a party,
or any Person succeeding to the business of the Custodian, shall be the
successor of the Custodian hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 3.7. Representations of the Custodian. The Custodian
hereby represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $10,000,000 and is qualified to do business in the jurisdiction in
which it will hold any Custodian File.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1. Notices. All notices, requests, consents and
demands and other communications required under this Agreement or pursuant to
any other instrument or document delivered hereunder shall be in writing and,
unless otherwise specifically provided, may be delivered personally, by telegram
or telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar notice
in writing), in which case the notice will be deemed delivered when received.
Section 4.2. Amendments. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto, and neither the Seller, the Master
Servicer nor the Trustee shall enter into any amendment hereof except as
permitted by the Pooling and Servicing Agreement. The Trustee shall give prompt
written notice to the Custodian of any amendment or supplement to the Pooling
and Servicing Agreement and furnish the Custodian with written copies thereof.
Section 4.3. Governing Law. This Agreement shall be deemed a
contract made under the laws of the State of New York and shall be construed and
enforced in accordance with and governed by the laws of the State of New York.
Section 4.4. Recordation of Agreement. To the extent permitted
by applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer and at its expense on
direction by the Trustee, but only upon direction accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 4.5. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the holders
thereof.
IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
Address: [TRUSTEE],
as Trustee
________________________ By:
------------------------------------
________________________ Name:
---------------------------------
Title:
---------------------------------
Address: ▇▇▇▇▇ FARGO ASSET SECURITIES
CORPORATION, as Seller
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
------------------------------------
Name:
Title:
Address: ▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Master
Servicer
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
------------------------------------
Name:
Title:
Address: ▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Custodian
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By:
------------------------------------
Name:
Title:
STATE OF ________________)
ss.:
COUNTY OF _______________)
On this ____ day of ____________, 200_, before me, a notary
public in and for the State of ________________, personally appeared
____________________, known to me who, being by me duly sworn, did depose and
say that he resides at __________, __________; that he is a _________________ of
▇▇▇▇▇ Fargo Asset Securities Corporation, a Delaware corporation, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of said corporation.
________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ________________)
ss.:
COUNTY OF _______________)
On this ____ day of ____________, 200_, before me, a notary
public in and for the State of ________________, personally appeared
____________________, known to me who, being by me duly sworn, did depose and
say that he resides at __________, __________; that he is a _________________ of
▇▇▇▇▇ Fargo Bank Minnesota, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
he signed her name thereto by order of the Board of Directors of said
association.
________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ________________)
ss.:
COUNTY OF _______________)
On this ____ day of ____________, 200_, before me, a notary
public in and for the State of ________________, personally appeared
____________________, known to me who, being by me duly sworn, did depose and
say that he resides at __________, __________; that he is a _________________ of
[TRUSTEE], a ________________, one of the parties that executed the foregoing
instrument; and that s/he signed his/her name thereto by order of the Board of
Directors of said association.
________________________
Notary Public
[NOTARIAL SEAL]
STATE OF ________________)
ss.:
COUNTY OF _______________)
On this ____ day of ____________, 200_, before me, a notary
public in and for the State of ________________, personally appeared
____________________, known to me who, being by me duly sworn, did depose and
say that he resides at __________, __________; that he is a _________________ of
▇▇▇▇▇ Fargo Bank Minnesota, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
he signed his name thereto by order of the Board of Directors of said
association.
________________________
Notary Public
[NOTARIAL SEAL]
EXHIBIT F-1
[Schedule of Type 1 Mortgage Loans]
EXHIBIT F-2
[Schedule of Other Servicer Mortgage Loans]
EXHIBIT G
REQUEST FOR RELEASE OF DOCUMENTS
To: ▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇., ▇▇ ▇▇▇▇▇
Attn: ________________
Re: Custodial Agreement, dated as of ____________, 200_, among
[TRUSTEE], as Trustee, ▇▇▇▇▇ Fargo Asset Securities Corporation,
as Seller, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Master Servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Custodian, relating to the ▇▇▇▇▇ Fargo Asset
Securities Corporation; Mortgage Pass-Through Certificates,
Series 200_-__.
In connection with the administration of the Mortgage Loans
held by you as Custodian for the Trust Estate pursuant to the above-captioned
Custodial Agreement, we request the release, and hereby acknowledge receipt, of
the Custodian's Owner Mortgage Loan File for the Mortgage Loan described below,
for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
________ 1. Mortgage Paid in Full
________ 2. Foreclosure
________ 3. Substitution
________ 4. Other Liquidation (Repurchases, etc.)
________ 5. Nonliquidation
Reason:____________________________________
By:
-----------------------------------------
(authorized signer)
Issuer:____________________________________
Address:___________________________________
___________________________________
Date:______________________________________
Custodian
▇▇▇▇▇ Fargo Bank Minnesota, National Association
Please acknowledge the execution of the above request by your
signature and date below:
------------------------------------ -----------------
Signature Date
Documents returned to Custodian:
------------------------------------ -----------------
Custodian Date
G-2
EXHIBIT H
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4)
OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, AND FOR NON-ERISA INVESTORS
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Purchaser]
(the "Purchaser"), a [description of type of entity] duly organized and existing
under the laws of the [State of____] [United States], on behalf of which he
makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is
[ ].
3. That the Purchaser is not a "disqualified organization"
within the meaning of Section 860E(e)(5),of the Internal Revenue Code of 1986,
as amended (the "Code"), or an ERISA Prohibited Holder, and will not be a
"disqualified organization" or an ERISA Prohibited Holder, as of [date of
transfer], and that the Purchaser is not acquiring ▇▇▇▇▇ Fargo Asset Securities
Corporation Mortgage Pass-Through Certificates, Series 200_-__, Class A-R
Certificates (the "Class A-R Certificates") for the account of, or as agent
(including a broker, nominee, or other middleman) for, any person or entity from
which it has not received an affidavit substantially in the form of this
affidavit. For these purposes, a "disqualified organization" means the United
States, any state or political subdivision thereof, any foreign government, any
international organization, any agency or instrumentality of any of the
foregoing (other than an instrumentality if all of its activities are subject to
tax and a majority of its board of directors is not selected by such
governmental entity), any cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas as described in Code
Section 1381(a)(2)(C), or any organization (other than a farmers' cooperative
described in Code Section 521) that is exempt from taxation under the Code
unless such organization is subject to the tax on unrelated business income
imposed by Code Section 511. For these purposes, an "ERISA Prohibited Holder"
means an employee benefit plan or other retirement arrangement subject to Title
I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or Code Section 4975 or a governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, state or local law which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code (collectively,
a "Plan") or a Person acting on behalf of or investing the assets of such a
Plan.
4. That the Purchaser historically has paid its debts as
they have come due and intends to pay its debts as they come due in the future
and the Purchaser intends to pay taxes associated with holding the Class A-R
Certificates as they become due.
5. That the Purchaser understands that it may incur tax
liabilities with respect to the Class A-R Certificates in excess of cash flows
generated by the Class A-R Certificates.
6. That the Purchaser will not transfer the Class A-R
Certificates to any person or entity from which the Purchaser has not received
an affidavit substantially in the form of this affidavit and as to which the
Purchaser has actual knowledge that the requirements set forth in paragraph 3, 4
or 7 hereof are not satisfied or that the Purchaser has reason to know does not
satisfy the requirements set forth in paragraph 4 hereof.
7. That the Purchaser (i) is a U.S. Person or (ii) is a
person other than a U.S. Person (a "Non-U.S. Person") that holds the Class A-R
Certificate in connection with the conduct of a trade or business within the
United States and has furnished the transferor and the Trustee with an effective
Internal Revenue Service Form W-8ECI or successor form at the time and in the
manner required by the Code or (iii) is a Non-U.S. Person that has delivered to
both the transferor and the Trustee an opinion of a nationally recognized tax
counsel to the effect that the transfer of the Class A-R Certificates to it is
in accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of the Class A-R Certificates will not be
disregarded for federal income tax purposes. "U.S. Person" means a citizen or
resident of the United States, a corporation or partnership (unless, in the case
of a partnership, Treasury regulations are adopted that provide otherwise)
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, including an entity treated as a
corporation or partnership for federal income tax purposes, an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of such trust, and one or more such U.S.
Persons have the authority to control all substantial decisions of such trust
(or, to the extent provided in applicable Treasury regulations, certain trusts
in existence on August 20, 1996 which are eligible to elect to be treated as
U.S. Persons).
8. That the Purchaser agrees to such amendments of the
Pooling and Servicing Agreement as may be required to further effectuate the
restrictions on transfer of the Class A-R Certificates to such a "disqualified
organization," an agent thereof, an ERISA Prohibited Holder or a person that
does not satisfy the requirements of paragraph 4, paragraph 5 and paragraph 7
hereof.
9. That the Purchaser consents to the designation of the
Master Servicer as its agent to act as "tax matters person" of the REMIC
pursuant to Section 8.14 of the Pooling and Servicing Agreement, and if such
designation is not permitted by the Code and applicable law, to act as tax
matters person if requested to do so.
H-2
IN WITNESS WHEREOF, the Purchaser has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors, by
its [Title of Officer] this ___ day of_______, 20__.
[NAME OF PURCHASER]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer], of the Purchaser, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Purchaser.
Subscribed and sworn before me this __ day of________, 20__.
Notary Public
COUNTY OF____________________
STATE OF_____________________
My commission expires the __ day of __________, 20__.
H-3
EXHIBIT I
[Letter from Transferor of Class A-R Certificate]
[Date]
[TRUSTEE]
[________________]
[______________________]
Re: ▇▇▇▇▇ Fargo Asset Securities Corporation,
Series 200_-__, Class A-R
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of
[Transferee], and has no actual knowledge that such affidavit is not true and
has no reason to know that the information contained in paragraph 4 thereof is
not true.
Very truly yours,
[Transferor]
--------------------------
EXHIBIT J
▇▇▇▇▇ FARGO ASSET SECURITIES CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 200_-__
CLASS [B-4][B-5][B-6] CERTIFICATES
TRANSFEREE'S LETTER
_____________ ___, _____
[TRUSTEE]
[_________________]
[________________________]
▇▇▇▇▇ Fargo Asset Securities Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned (the "Purchaser") proposes to purchase ▇▇▇▇▇
Fargo Asset Securities Corporation Mortgage Pass-Through Certificates, Series
200_-__, Class [B-4][B-5][B-6] Certificates (the "Class [B-4][B-5][B-6]
Certificates") in the principal amount of $___________. In doing so, the
Purchaser hereby acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and
not otherwise defined herein shall have the meaning ascribed to it in the
Pooling and Servicing Agreement, dated as of ____________, 200_ (the "Pooling
and Servicing Agreement") among ▇▇▇▇▇ Fargo Asset Securities Corporation, as
seller (the "Seller"), ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
master servicer (the "Master Servicer") and [TRUSTEE], as trustee (the
"Trustee"), of ▇▇▇▇▇ Fargo Asset Securities Corporation Mortgage Pass-Through
Certificates, Series 200_-__.
Section 2. Representations and Warranties of the Purchaser.
In connection with the proposed transfer, the Purchaser represents and warrants
to the Seller, the Master Servicer and the Trustee that:
(a) The Purchaser is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which the Purchaser is
organized, is authorized to invest in the Class [B-4][B-5][B-6] Certificates,
and to enter into this Agreement, and duly executed and delivered this
Agreement.
(b) The Purchaser is acquiring the Class [B-4][B-5][B-6]
Certificates for its own account as principal and not with a view to the
distribution thereof, in whole or in part.
[(c) The Purchaser has knowledge of financial and business
matters and is capable of evaluating the merits and risks of an investment in
the Class [B-4][B-5][B-6] Certificates; the Purchaser has sought such
accounting, legal and tax advice as it has considered necessary to make
an informed investment decision; and the Purchaser is able to bear the economic
risk of an investment in the Class [B-4][B-5][B-6] Certificates and can afford a
complete loss of such investment.]
[(c) The Purchaser is a "Qualified Institutional Buyer" within
the meaning of Rule 144A of the Act.]
(d) The Purchaser confirms that (a) it has received and reviewed
a copy of the Private Placement Memorandum dated __________ __, 20__, relating
to the Class [B-4][B-5][B-6] Certificates and reviewed, to the extent it deemed
appropriate, the documents attached thereto or incorporated by reference
therein, (b) it has had the opportunity to ask questions of, and receive answers
from the Seller concerning the Class [B-4][B-5][B-6] Certificates and all
matters relating thereto, and obtain any additional information (including
documents) relevant to its decision to purchase the Class [B-4][B-5][B-6]
Certificates that the Seller possesses or can possess without unreasonable
effort or expense and (c) it has undertaken its own independent analysis of the
investment in the Class [B-4][B-5][B-6] Certificates. The Purchaser will not use
or disclose any information it receives in connection with its purchase of the
Class [B-4][B-5][B-6] Certificates other than in connection with a subsequent
sale of Class [B-4][B-5][B-6] Certificates.
(e) Either (i) the Purchaser is not an employee benefit plan or
other retirement arrangement subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended, ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended (the "Code"), or a governmental plan,
as defined in Section 3(32) of ERISA subject to any federal, state or local law
("Similar Law") which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (collectively, a "Plan"), an agent acting on
behalf of a Plan, or a person utilizing the assets of a Plan or (ii) if the
Purchaser is an insurance company, (A) the source of funds used to purchase the
Class [B-4][B-5][B-6] Certificate is an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12, 1995), (B) there is no Plan
with respect to which the amount of such general account's reserves and
liabilities for the contract(s) held by or on behalf of such Plan and all other
Plans maintained by the same employer (or affiliate thereof as defined in
Section V(a)(1) of PTE 95-60) or by the same employee organization exceeds 10%
of the total of all reserves and liabilities of such general account (as such
amounts are determined under Section I(a) of PTE 95-60) at the date of
acquisition and (C) the purchase and holding of such Class [B-4][B-5][B-6]
Certificates are covered by Sections I and III of PTE 95-60 or (iii) the
Purchaser has provided (a) a "Benefit Plan Opinion" satisfactory to the Seller
and the Trustee of the Trust Estate and (b) such other opinions of counsel,
officers' certificates and agreements as the Seller or the Master Servicer may
have required. A Benefit Plan Opinion is an opinion of counsel to the effect
that the proposed transfer will not cause the assets of the Trust Estate to be
regarded as "plan assets" and subject to the prohibited transaction provisions
of ERISA, the Code or Similar Law and will not subject the Trustee, the Seller
or the Master Servicer to any obligation in addition to those undertaken in the
Pooling and Servicing Agreement (including any liability for civil penalties or
excise taxes imposed pursuant to ERISA, Section 4975 of the Code or Similar
Law).
(f) If the Purchaser is a depository institution subject to the
jurisdiction of the Office of the Comptroller of the Currency ("OCC"), the Board
of Governors of the Federal Reserve System ("FRB"), the Federal Deposit
Insurance Corporation ("FDIC"), the Office of Thrift Supervision ("OTS") or the
National Credit Union Administration ("NCUA"), the Purchaser has
J - 2
reviewed the "Supervisory Policy Statement on Securities Activities" dated
January 28, 1992 of the Federal Financial Institutions Examination Council and
the April 15, 1994 Interim Revision thereto as adopted by the OCC, FRB, FDIC,
OTS and NCUA (with modifications as applicable), as appropriate, other
applicable investment authority, rules, supervisory policies and guidelines of
these agencies and, to the extent appropriate, state banking authorities and has
concluded that its purchase of the Class [B-4][B-5][B-6] Certificates is in
compliance therewith.
Section 3. Transfer of Class [B-4][B-5][B-6] Certificates.
(a) The Purchaser understands that the Class [B-4][B-5][B-6]
Certificates have not been registered under the Securities Act of 1933 (the
"Act") or any state securities laws and that no transfer may be made unless the
Class [B-4][B-5][B-6] Certificates are registered under the Act and applicable
state law or unless an exemption from registration is available. The Purchaser
further understands that neither the Seller, the Master Servicer nor the Trustee
is under any obligation to register the Class [B-4][B-5][B-6] Certificates or
make an exemption available. In the event that such a transfer is to be made in
reliance upon an exemption from the Act or applicable state securities laws, (i)
the Trustee shall require, in order to assure compliance with such laws, that
the Certificateholder's prospective transferee certify to the Seller and the
Trustee as to the factual basis for the registration or qualification exemption
relied upon, and (ii) unless the transferee is a "Qualified Institutional Buyer"
within the meaning of Rule 144A of the Act, the Trustee or the Seller may, if
such transfer is made within three years from the later of (a) the Closing Date
or (b) the last date on which the Seller or any affiliate thereof was a holder
of the Certificates proposed to be transferred, require an Opinion of Counsel
that such transfer may be made pursuant to an exemption from the Act and state
securities laws, which Opinion of Counsel shall not be an expense of the
Trustee, the Master Servicer or the Seller. Any such Certificateholder desiring
to effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the Master Servicer, any Paying Agent acting on behalf of the Trustee and the
Seller against any liability that may result if the transfer is not so exempt or
is not made in accordance with such federal and state laws.
(b) No transfer of a Class [B-4][B-5][B-6] Certificate shall be
made unless the transferee provides the Seller and the Trustee with a
Transferee's Letter, substantially in the form of this Agreement.
(c) The Purchaser acknowledges that its Class [B-4][B-5][B-6]
Certificates bear a legend setting forth the applicable restrictions on
transfer.
J - 3
IN WITNESS WHEREOF, the undersigned has caused this Agreement to
be validly executed by its duly authorized representative as of the day and the
year first above written.
[PURCHASER]
By:
--------------------------
Its:
--------------------------
J - 4
EXHIBIT K
[RESERVED]
EXHIBIT L
SERVICING AGREEMENTS
▇▇▇▇▇ Fargo Home Mortgage, Inc. Servicing Agreement
[SERVICER] Servicing Agreement
[SERVICER] Servicing Agreement
EXHIBIT M
[FORM OF SPECIAL SERVICING AGREEMENT]
SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT
This SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT (the
"Agreement") is made and entered into as of ______, between ▇▇▇▇▇ Fargo Bank
Minnesota, National Association (the "Company" and "▇▇▇▇▇ Fargo Bank") and
__________ (the "Purchaser").
PRELIMINARY STATEMENT
______________________ is the holder of the entire interest in
▇▇▇▇▇ Fargo Asset Securities Corporation Mortgage Pass-Through Certificates,
Series 200_-__, Class ____ (the "Class B Certificates"). The Class B
Certificates were issued pursuant to a Pooling and Servicing Agreement dated as
of _________, 20__ among ▇▇▇▇▇ Fargo Asset Securities Corporation, as seller
(the "Seller"), ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Master
Servicer and [Trustee], as Trustee.
______________________ intends to resell all of the Class B
Certificates directly to the Purchaser on or promptly after the date hereof.
In connection with such sale, the parties hereto have agreed
that the Company will cause, to the extent that the Company as Master Servicer
is granted such authority in the related Servicing Agreements, the related
servicers (each a related "Servicer"), which service the Mortgage Loans which
comprise the Trust Estate related to the above referenced series under the
related servicing agreements (each a related "Servicing Agreement"), to engage
in certain special servicing procedures relating to foreclosures for the benefit
of the Purchaser, and that the Purchaser will deposit funds in a collateral fund
to cover any losses attributable to such procedures as well as all advances and
costs in connection therewith, as set forth herein.
In consideration of the mutual agreements herein contained, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser agree that the following provisions shall become effective and shall
be binding on and enforceable by the Company and the Purchaser:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State of New York are required
or authorized by law or executive order to be closed.
Collateral Fund: The fund established and maintained pursuant to
Section 3.01 hereof.
Collateral Fund Permitted Investments: Either (i) obligations
of, or obligations fully guaranteed as to principal and interest by, the United
States, or any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States, (ii) a money market
fund rated in the highest rating category by a nationally recognized rating
agency selected by the Company, (iii) cash, (iv) mortgage pass-through
certificates issued or guaranteed by Government National Mortgage Association,
FNMA or FHLMC, (v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date), the issuer of which may be an affiliate of the Company, having
at the time of such investment a rating of at least P-1 by ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") or at least A-1 by Standard & Poor's, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") or (vi) demand and time deposits in,
certificates of deposit of, any depository institution or trust company (which
may be an affiliate of the Company) incorporated under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state banking authorities, so long as at the time
of such investment either (x) the long-term debt obligations of such depository
institution or trust company have a rating of at least AA by S&P or Aa2 by
Moody's, (y) the certificate of deposit or other unsecured short-term debt
obligations of such depository institution or trust company have a rating of at
least A-1 by S&P or P-1 by Moody's or (z) the depository institution or trust
company is one that is acceptable to either S&P or Moody's and, for each of the
preceding clauses (i), (iv), (v) and (vi), the maturity thereof shall be not
later than the earlier to occur of (A) 30 days from the date of the related
investment and (B) the next succeeding Distribution Date as defined in the
related Pooling and Servicing Agreement.
Commencement of Foreclosure: The first official action required
under local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, posting, the publishing, filing or
delivery of a notice of sale, but not including in either case (x) any notice of
default, notice of intent to foreclose or sell or any other action prerequisite
to the actions specified in (i) or (ii) above, (y) the acceptance of a
deed-in-lieu of foreclosure (whether in connection with a sale of the related
property or otherwise) or (z) initiation and completion of a short pay-off.
Current Appraisal: With respect to any Mortgage Loan as to which
the Purchaser has made an Election to Delay Foreclosure, an appraisal of the
related Mortgaged Property obtained by the Purchaser at its own expense from an
independent appraiser (which shall not be an affiliate of the Purchaser)
acceptable to the Company as nearly contemporaneously as practicable to the time
of the Purchaser's election, prepared based on the Company's customary
requirements for such appraisals.
Election to Delay Foreclosure: Any election by the Purchaser to
delay the Commencement of Foreclosure, made in accordance with Section 2.02(b).
M-2
Election to Foreclose: Any election by the Purchaser to proceed
with the Commencement of Foreclosure, made in accordance with Section 2.03(a).
Monthly Advances: Principal and interest advances and servicing
advances including costs and expenses of foreclosure.
Required Collateral Fund Balance: As of any date of
determination, an amount equal to the aggregate of all amounts previously
required to be deposited in the Collateral Fund pursuant to Section 2.02(d)
(after adjustment for all withdrawals and deposits pursuant to Section 2.02(e))
and Section 2.03(b) (after adjustment for all withdrawals and deposits pursuant
to Section 2.03(c)) and Section 3.02 to be reduced by all withdrawals therefrom
pursuant to Section 2.02(g) and Section 2.03(d).
Section 1.2 Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement
shall have the meanings assigned in the Pooling and Servicing Agreement.
SPECIAL SERVICING PROCEDURES
Section 1.3 Reports and Notices.
(a) In connection with the performance of its duties under the
Pooling and Servicing Agreement relating to the realization upon defaulted
Mortgage Loans, the Company as Master Servicer shall provide to the Purchaser
the following notices and reports:
(i) Within five Business Days after each Distribution Date
(or included in or with the monthly statements to Certificateholders
pursuant to the Pooling and Servicing Agreement), the Company, shall
provide to the Purchaser a report, using the same methodology and
calculations in its standard servicing reports, indicating for the Trust
Estate the number of Mortgage Loans that are (A) thirty days, (B) sixty
days, (C) ninety days or more delinquent or (D) in foreclosure, and
indicating for each such Mortgage Loan the loan number and outstanding
principal balance.
(ii) Prior to the Commencement of Foreclosure in connection
with any Mortgage Loan, the Company shall cause (to the extent that the
Company as Master Servicer is granted such authority in the related
Servicing Agreement) the Servicer to provide the Purchaser with a notice
(sent by telecopier) of such proposed and imminent foreclosure, stating
the loan number and the aggregate amount owing under the Mortgage Loan.
Such notice may be provided to the Purchaser in the form of a copy of a
referral letter from such Servicer to an attorney requesting the
institution of foreclosure.
(b) If requested by the Purchaser, the Company shall cause the
Servicer (to the extent that the Company as Master Servicer is granted such
authority in the related Servicing Agreement) to make its servicing personnel
available (during their normal business hours) to respond to reasonable
inquiries, by phone or in writing by facsimile, electronic, or overnight mail
M-3
transmission, by the Purchaser in connection with any Mortgage Loan identified
in a report under subsection (a) (i) (B), (a) (i) (C), (a) (i) (D), or (a) (ii)
which has been given to the Purchaser; provided, that (1) the related Servicer
shall only be required to provide information that is readily accessible to its
servicing personnel and is non-confidential and (2) the related Servicer shall
respond within five Business Days orally or in writing by facsimile
transmission.
(c) In addition to the foregoing, the Company shall cause the
Servicer (to the extent that the Company as Master Servicer is granted such
authority in the related Servicing Agreement) to provide to the Purchaser such
information as the Purchaser may reasonably request provided, however, that such
information is consistent with normal reporting practices, concerning each
Mortgage Loan that is at least ninety days delinquent and each Mortgage Loan
which has become real estate owned, through the final liquidation thereof;
provided, that the related Servicer shall only be required to provide
information that is readily accessible to its servicing personnel and is
non-confidential provided, however, that the Purchaser will reimburse the
Company and the related Servicer for any out of pocket expenses.
Section 1.4 Purchaser's Election to Delay Foreclosure
Proceedings.
(a) The Purchaser shall be deemed to direct the Company to
direct (to the extent that the Company as Master Servicer is granted such
authority in the related Servicing Agreement) the related Servicer that in the
event that the Company does not receive written notice of the Purchaser's
election pursuant to subsection (b) below within 24 hours (exclusive of any
intervening non-Business Days) of transmission of the notice provided by the
Company under Section 2.01 (a) (ii) subject to extension as set forth in Section
2.02(b), the related Servicer may proceed with the Commencement of Foreclosure
in respect of such Mortgage Loan in accordance with its normal foreclosure
policies without further notice to the Purchaser. Any foreclosure that has been
initiated may be discontinued (i) without notice to the Purchaser if the
Mortgage Loan has been brought current or if a refinancing or prepayment occurs
with respect to the Mortgage Loan (including by means of a short payoff approved
by the related Servicer) or (ii) if the related Servicer has reached the terms
of a forbearance agreement with the borrower. In the latter case, the related
Servicer may complete such forbearance agreement unless instructed otherwise by
the Purchaser within two Business Days notification.
(b) In connection with any Mortgage Loan with respect to which a
notice under Section 2.01(a)(ii) has been given to the Purchaser, the Purchaser
may elect to instruct the Company to cause, to the extent that the Company as
Master Servicer is granted such authority in the related Servicing Agreement,
the related Servicer to delay the Commencement of Foreclosure until such time as
the Purchaser determines that the related Servicer may proceed with the
Commencement of Foreclosure. Such election must be evidenced by written notice
received within 24 hours (exclusive of any intervening non-Business Days) of
transmission of the notice provided by the Company under Section 2.01(a)(ii).
Such 24 hour period shall be extended for no longer than an additional four
Business Days after the receipt of the information if the Purchaser requests
additional information related to such foreclosure; provided, however, that the
Purchaser will have at least one Business Day to respond to any requested
additional information. Any such additional information shall be provided only
to the extent it (i) is not confidential in nature and (ii) is obtainable by the
related Servicer from existing reports, certificates or statements or is
otherwise readily accessible to its servicing personnel. The Purchaser agrees
that it has no right to deal with the mortgagor during
M-4
such period. However, if such servicing activities include acceptance of a
deed-in-lieu of foreclosure or short payoff, the Purchaser will be notified and
given two Business Days to respond.
(c) With respect to any Mortgage Loan as to which the Purchaser
has made an Election to Delay Foreclosure, the Purchaser shall obtain a Current
Appraisal as soon as practicable, but in no event more than 15 business days
thereafter, and shall provide the Company with a copy of such Current Appraisal.
(d) Within two Business Days of making any Election to Delay
Foreclosure, the Purchaser shall remit by wire transfer to the Company, for
deposit in the Collateral Fund, an amount, as calculated by the Company, equal
to the sum of (i) 125% of the greater of the unpaid principal balance of the
Mortgage Loan and the value shown in the Current Appraisal referred to in
subsection (c) above (or, if such Current Appraisal has not yet been obtained,
the Company's estimate thereof, in which case the required deposit under this
subsection shall be adjusted upon obtaining such Current Appraisal), and (ii)
three months' interest on the Mortgage Loan at the applicable Mortgage Interest
Rate. If any Election to Delay Foreclosure extends for a period in excess of
three months (such excess period being referred to herein as the "Excess
Period"), within two Business Days the Purchaser shall remit by wire transfer in
advance to the Company for deposit in the Collateral Fund the amount of each
additional month's interest, as calculated by the Company, equal to interest on
the Mortgage Loan at the applicable Mortgage Interest Rate for the Excess
Period. The terms of this Agreement will no longer apply to the servicing of any
Mortgage Loan upon the failure of the Purchaser to deposit any of the above
amounts relating to the Mortgage Loan within two Business Days of the Election
to Delay Foreclosure or within two Business Days of the commencement of the
Excess Period subject to Section 3.01.
(e) With respect to any Mortgage Loan as to which the Purchaser
has made an Election to Delay Foreclosure, the Company may withdraw from the
Collateral Fund from time to time amounts necessary to reimburse the related
Servicer for all related Monthly Advances and Liquidation Expenses thereafter
made by such Servicer in accordance with the Pooling and Servicing Agreement and
the related Servicing Agreement. To the extent that the amount of any such
Liquidation Expenses is determined by the Company based on estimated costs, and
the actual costs are subsequently determined to be higher, the Company may
withdraw the additional amount from the Collateral Fund. In the event that the
Mortgage Loan is brought current by the mortgagor and the foreclosure action is
discontinued, the amounts so withdrawn from the Collateral Fund shall be
redeposited if and to the extent that reimbursement therefor from amounts paid
by the mortgagor is not prohibited pursuant to the Pooling and Servicing
Agreement or the related Servicing Agreement, applicable law or the related
mortgage note. Except as provided in the preceding sentence, amounts withdrawn
from the Collateral Fund to cover Monthly Advances and Liquidation Expenses
shall not be redeposited therein or otherwise reimbursed to the Purchaser. If
and when any such Mortgage Loan is brought current by the mortgagor, all amounts
remaining in the Collateral Fund in respect of such Mortgage Loan (after
adjustment for all permitted withdrawals and deposits pursuant to this
subsection) shall be released to the Purchaser.
(f) With respect to any Mortgage Loan as to which the Purchaser
has made an Election to Delay Foreclosure, the related Servicer shall continue
to service the Mortgage Loan in accordance with its customary procedures (other
than the delay in Commencement of Foreclosure as provided herein). If and when
the Purchaser shall notify the Company that it believes that it is appropriate
to do so, the related Servicer may proceed with the Commencement of Foreclosure.
In
M-5
any event, if the Mortgage Loan is not brought current by the mortgagor by
the time the loan becomes 6 months delinquent, the Purchaser's election shall no
longer be effective and at the Purchaser's option, either (i) the Purchaser
shall purchase the Mortgage Loan from the related Trust Estate at a purchase
price equal to the fair market value as shown on the Current Appraisal, to be
paid by (x) applying any balance in the Collateral Fund to such to such purchase
price, and (y) to the extent of any deficiency, by wire transfer of immediately
available funds from the Purchaser to the Company for deposit in the related
Certificate Account; or (ii) the related Servicer shall proceed with the
Commencement of Foreclosure.
(g) Upon the occurrence of a liquidation with respect to any
Mortgage Loan as to which the Purchaser made an Election to Delay Foreclosure
and as to which the related Servicer proceeded with the Commencement of
Foreclosure in accordance with subsection (f) above, the Company shall calculate
the amount, if any, by which the value shown on the Current Appraisal obtained
under subsection (c) exceeds the actual sales price obtained for the related
Mortgaged Property (net of Liquidation Expenses and accrued interest related to
the extended foreclosure period), and the Company shall withdraw the amount of
such excess from the Collateral Fund, shall remit the same to the Trust Estate
and in its capacity as Master Servicer shall apply such amount as additional
Liquidation Proceeds pursuant to the Pooling and Servicing Agreement. After
making such withdrawal, all amounts remaining in the Collateral Fund in respect
of such Mortgage Loan (after adjustment for all permitted withdrawals and
deposits pursuant to this Agreement) shall be released to the Purchaser.
Section 1.5 Purchaser's Election to Commence Foreclosure
Proceedings.
(a) In connection with any Mortgage Loan identified in a report
under Section 2.01(a)(i)(B), the Purchaser may elect to instruct the Company to
cause, to the extent that the Company as Master Servicer is granted such
authority in the related Servicing Agreement, the related Servicer to proceed
with the Commencement of Foreclosure as soon as practicable. Such election must
be evidenced by written notice received by the Company by 5:00 p.m., New York
City time, on the third Business Day following the delivery of such report under
Section 2.01(a)(i).
(b) Within two Business Days of making any Election to
Foreclose, the Purchaser shall remit to the Company, for deposit in the
Collateral Fund, an amount, as calculated by the Company, equal to 125% of the
current unpaid principal balance of the Mortgage Loan and three months interest
on the Mortgage Loan at the applicable Mortgage Interest Rate. If and when any
such Mortgage Loan is brought current by the mortgagor, all amounts in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
permitted withdrawals and deposits pursuant to this Agreement) shall be released
to the Purchaser if and to the extent that reimbursement therefor from amounts
paid by the mortgagor is not prohibited pursuant to the Pooling and Servicing
Agreement or the related Servicing Agreement, applicable law or the related
mortgage note. The terms of this Agreement will no longer apply to the servicing
of any Mortgage Loan upon the failure of the Purchaser to deposit the above
amounts relating to the Mortgage Loan within two Business Days of the Election
to Foreclose subject to Section 3.01.
(c) With respect to any Mortgage Loan as to which the Purchaser
has made an Election to Foreclose, the related Servicer shall continue to
service the Mortgage Loan in accordance with its customary procedures (other
than Commencement of Foreclosure as provided herein). In connection therewith,
the Company shall have the same rights to make withdrawals for
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Monthly Advances and Liquidations Expenses from the Collateral Fund as are
provided under Section 2.02(e), and the Company shall make reimbursements
thereto to the limited extent provided under such subsection in accordance with
its customary procedures. The Company shall not be required to cause, to the
extent that the Company as Master Servicer is granted such authority in the
related Servicing Agreement, the related Servicer to proceed with the
Commencement of Foreclosure if (i) the same is stayed as a result of the
mortgagor's bankruptcy or is otherwise barred by applicable law, or to the
extent that all legal conditions precedent thereto have not yet been complied
with, or (ii) the Company believes there is a breach of representations or
warranties by the Company, a Servicer, or a Seller, which may result in a
repurchase or substitution of such Mortgage Loan, or (iii) the Company or
related Servicer reasonably believes the Mortgaged Property may be contaminated
with or affected by hazardous wastes or hazardous substances (and, without
limiting the related Servicer's right not to proceed with the Commencement of
Foreclosure, the Company supplies the Purchaser with information supporting such
belief). Any foreclosure that has been initiated may be discontinued (x) without
notice to the Purchaser if the Mortgage Loan has been brought current or if a
refinancing or prepayment occurs with respect to the Mortgage Loan (including by
means of a short payoff approved by the Purchaser) or (y) with notice to the
Purchaser if the related Servicer has reached the terms of a forbearance
agreement unless instructed otherwise by the Purchaser within two Business Days
of such notification. Any such instruction shall be based upon a decision that
such forbearance agreement is not in conformity with reasonable servicing
practices.
(d) Upon the occurrence of a liquidation with respect to any
Mortgage Loan as to which the Purchaser made an Election to Foreclose and as to
which the related Servicer proceeded with the Commencement of Foreclosure in
accordance with subsection (c) above, the Company shall calculate the amount, if
any, by which the unpaid principal balance of the Mortgage Loan at the time of
liquidation (plus all unreimbursed interest and servicing advances and
Liquidation Expenses in connection therewith other than those paid from the
Collateral Fund) exceeds the actual sales price obtained for the related
Mortgaged Property, and the Company shall withdraw the amount of such excess
from the Collateral Fund, shall remit the same to the Trust Estate and in its
capacity as Master Servicer shall apply such amount as additional Liquidation
Proceeds pursuant to the Pooling and Servicing Agreement. After making such
withdrawal, all amounts remaining in the Collateral Fund (after adjustment for
all withdrawals and deposits pursuant to subsection (c) in respect of such
Mortgage Loan shall be released to the Purchaser.
Section 1.6 Termination.
(a) With respect to all Mortgage Loans included in the Trust
Estate, the Purchaser's right to make any Election to Delay Foreclosure or any
Election to Foreclose and the Company's obligations under Section 2.01 shall
terminate (i) at such time as the Principal Balance of the Class B Certificates
has been reduced to zero, (ii) if the greater of (x) 43% (or such lower or
higher percentage that represents the related Servicer's actual historical loss
experience with respect to the Mortgage Loans in the related pool as determined
by the Company) of the aggregate principal balance of all Mortgage Loans that
are in foreclosure or are more than 90 days delinquent on a contractual basis
and REO properties or (y) the aggregate amount that the Company estimates
through the normal servicing practices of the related Servicer will be required
to be withdrawn from the Collateral Fund with respect to Mortgage Loans as to
which the Purchaser has made an Election to Delay Foreclosure or an Election to
Foreclosure, exceeds (z) the then-current principal balance of the Class B
Certificates, (iii) upon any transfer by the Purchaser of any interest (other
than the
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minority interest therein, but only if the transferee provides written
acknowledgment to the Company of the Purchaser's right hereunder and that such
transferee will have no rights hereunder) in the Class B Certificates (whether
or not such transfer is registered under the Pooling and Servicing Agreement),
including any such transfer in connection with a termination of the Trust Estate
or (iv) upon any breach of the terms of this Agreement by the Purchaser.
(b) Except as set forth in 2.04(a), this Agreement and the
respective rights, obligations and responsibilities of the Purchaser and the
Company hereunder shall terminate upon the later to occur of (i) the final
liquidation of the last Mortgage Loan as to which the Purchaser made any
Election to Delay Foreclosure or any Election to Foreclose and the withdrawal of
all remaining amounts in the Collateral Fund as provided herein and (ii) ten
Business Days' notice. The Purchaser's right to make an election pursuant to
Section 2.02 or Section 2.03 hereof with respect to a particular Mortgage Loan
shall terminate if the Purchaser fails to make any deposit required pursuant to
Section 2.02(d) or 2.03(b) or if the Purchaser fails to make any other deposit
to the Collateral Fund pursuant to this Agreement.
COLLATERAL FUND; SECURITY INTEREST
Section 1.7 Collateral Fund.
Upon receipt from the Purchaser of the initial amount required
to be deposited in the Collateral Fund pursuant to Article II, the Company shall
establish and maintain with Bankers Trust Company as a segregated account on its
books and records an account (the "Collateral Fund"), entitled "▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as Master Servicer, for the benefit of
registered holders of ▇▇▇▇▇ Fargo Asset Securities Corporation Mortgage
Pass-Through Certificates, Series 200_-__." Amounts held in the Collateral Fund
shall continue to be the property of the Purchaser, subject to the first
priority security interest granted hereunder for the benefit of the
Certificateholders, until withdrawn from the Collateral Fund pursuant to Section
2.02 or 2.03 hereof. The Collateral Fund shall be an "outside reserve fund"
within the meaning of the REMIC Provisions, beneficially owned by the Purchaser
for federal income tax purposes. All income, gain, deduction or loss with
respect to the Collateral Fund shall be that of the Purchaser. All distributions
from the Trust Fund to the Collateral Fund shall be treated as distributed to
the Purchaser as the beneficial owner thereof.
Upon the termination of this Agreement and the liquidation of
all Mortgage Loans as to which the Purchaser has made any Election to Delay
Foreclosure or any Election to Foreclose pursuant to Section 2.04 hereof, the
Company shall distribute or cause to be distributed to the Purchaser all amounts
remaining in the Collateral Fund (after adjustment for all deposits and
permitted withdrawals pursuant to this Agreement) together with any investment
earnings thereon. In the event the Purchaser has made any Election to Delay
Foreclosure or any Election to Foreclose, prior to any distribution to the
Purchaser of all amounts remaining in the Collateral Fund, funds in the
Collateral Fund shall be applied consistent with the terms of this Agreement.
Section 1.8 Collateral Fund Permitted Investments.
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The Company shall, at the written direction of the Purchaser,
invest the funds in the Collateral Fund in Collateral Fund Permitted
Investments. Such direction shall not be changed more frequently than quarterly.
In the absence of any direction, the Company shall select such investments in
accordance with the definition of Collateral Fund Permitted Investments in its
discretion.
All income and gain realized from any investment as well as any
interest earned on deposits in the Collateral Fund (net of any losses on such
investments) and any payments of principal made in respect of any Collateral
Fund Permitted Investment shall be deposited in the Collateral Fund upon
receipt. All costs and realized losses associated with the purchase and sale of
Collateral Fund Permitted Investments shall be borne by the Purchaser and the
amount of net realized losses shall be deposited by the Purchaser in the
Collateral Fund promptly upon realization. The Company shall periodically (but
not more frequently than monthly) distribute to the Purchaser upon request an
amount of cash, to the extent cash is available therefore in the Collateral
Fund, equal to the amount by which the balance of the Collateral Fund, after
giving effect to all other distributions to be made from the Collateral Fund on
such date, exceeds the Required Collateral Fund Balance. Any amounts so
distributed shall be released from the lien and security interest of this
Agreement.
Section 1.9 Grant of Security Interest.
The Purchaser hereby grants to the Company for the benefit of
the Certificateholders under the Pooling and Servicing Agreement a security
interest in and lien on all of the Purchaser's right, title and interest,
whether now owned or hereafter acquired, in and to: (1) the Collateral Fund, (2)
all amounts deposited in the Collateral Fund and Collateral Fund Permitted
Investments in which such amounts are invested (and the distributions and
proceeds of such investments) and (3) all cash and non-cash proceeds of any of
the foregoing, including proceeds of the voluntary conversion thereof (all of
the foregoing collectively, the "Collateral").
The Purchaser acknowledges the lien on and the security interest
in the Collateral for the benefit of the Certificateholders. The Purchaser shall
take all actions requested by the Company as may be reasonably necessary to
perfect the security interest created under this Agreement in the Collateral and
cause it to be prior to all other security interests and liens, including the
execution and delivery to the Company for filing of appropriate financing
statements in accordance with applicable law. The Company shall file appropriate
continuation statements, or appoint an agent on its behalf to file such
statements, in accordance with applicable law.
Section 1.10 Collateral Shortfalls.
In the event that amounts on deposit in the Collateral Fund at
any time are insufficient to cover any withdrawals therefrom that the Company is
then entitled to make hereunder, the Purchaser shall be obligated to pay such
amounts to the Company immediately upon demand. Such obligation shall constitute
a general corporate obligation of the Purchaser. The failure to pay such amounts
within two Business Days of such demand (except for amounts to cover interest on
a Mortgage Loan pursuant to Sections 2.02(d) and 2.03 (b)), shall cause an
immediate termination of the Purchaser's right to make any Election to Delay
Foreclosure or Election to Foreclose and the Company's obligations under this
Agreement with respect to all Mortgage Loans
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to which such insufficiencies relate, without the necessity of any further
notice or demand on the part of the Company.
MISCELLANEOUS PROVISIONS
Section 1.11 Amendment.
This Agreement may be amended from time to time by the Company
and the Purchaser by written agreement signed by the Company and the Purchaser.
Section 1.12 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 1.13 Governing Law.
This Agreement shall be construed in accordance with the laws of
the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 1.14 Notices.
All demands, notices and direction hereunder shall be in writing
or by telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company,
▇▇▇▇▇ Fargo Bank Minnesota, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Master Servicing
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) in the case of the Purchaser,
_______________________________________
_______________________________________
_______________________________________
_______________________________________
Attention:_____________________________
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Section 1.15 Severability of Provisions.
If any one or more of the covenants, agreements, provision or
terms of this Agreement shall be for any reason whatsoever, including
regulatory, held invalid, then such covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity or enforceability of
the other provisions of this Agreement.
Section 1.16 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties hereto,
and all such provisions shall inure to the benefit of the Certificateholders;
provided, however, that the rights under this Agreement cannot be assigned by
the Purchaser without the consent of the Company.
Section 1.17 Article and Section Headings.
The article and section headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 1.18 Confidentiality.
The Purchaser agrees that all information supplied by or on
behalf of the Company pursuant to Sections 2.01 or 2.02, including individual
account information, is the property of the Company and the Purchaser agrees to
hold such information confidential and not to disclose such information.
Each party hereto agrees that neither it, nor any officer,
director, employee, affiliate or independent contractor acting at such party's
direction will disclose the terms of Section 4.09 of this Agreement to any
person or entity other than such party's legal counsel except pursuant to a
final, non-appealable order of court, the pendency of such order the other party
will have received notice of at least five business days prior to the date
thereof, or pursuant to the other party's prior express written consent.
Section 1.19 Indemnification.
The Purchaser agrees to indemnify and hold harmless the Company,
the Seller, and each Servicer and each person who controls the Company, the
Seller, or a Servicer and each of their respective officers, directors,
affiliates and agents acting at the Company's, the Seller's, or a Servicer's
direction (the "Indemnified Parties") against any and all losses, claims,
damages or liabilities to which they may be subject, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of, or
are based upon, actions taken by, or actions not taken by, the Company, the
Seller, or a Servicer, or on their behalf, in accordance with the provisions of
this Agreement and (i) which actions conflict with the Company's, the Seller's,
or a Servicer's obligations under the Pooling and Servicing Agreement or the
related Servicing Agreement, or (ii) give rise to securities law liability under
federal or state securities laws with respect to the Certificates. The Purchaser
hereby agrees to reimburse the Indemnified Parties for the reasonable legal or
other expenses incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action. The indemnification
obligations of the Purchaser hereunder shall survive the termination or
expiration of this Agreement.
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IN WITNESS WHEREOF, the Company and the Purchaser have caused
their names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
▇▇▇▇▇ Fargo Bank Minnesota, National
Association
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
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EXHIBIT N
FORM OF INITIAL CERTIFICATION OF THE CUSTODIAN
____________, 200_
▇▇▇▇▇ Fargo Asset Securities Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[TRUSTEE]
[____________________]
[_________________________]
Re: The Pooling and Servicing Agreement, dated ____________, 200_,
among ▇▇▇▇▇ Fargo Asset Securities Corporation, as Seller, ▇▇▇▇▇
Fargo Bank Minnesota, National Association, as Master Servicer,
and [TRUSTEE], as Trustee, relating to ▇▇▇▇▇ Fargo Asset
Securities Corporation; Mortgage Pass-Through Certificates,
Series 200_-__
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), the undersigned, as Custodian on behalf of the Trustee, hereby
certifies that, except as specified in any list of exceptions attached hereto,
it has received the original Mortgage Note relating to each of the Mortgage
Loans listed on the Mortgage Loan Schedule.
The Custodian has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this initial
certification. The Custodian makes no representations as to: (i) the validity,
legality, sufficiency, enforceability, recordability or genuineness of any of
the documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Custodian on behalf of the Trustee
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT O
FORM OF FINAL CERTIFICATION OF THE CUSTODIAN
[__________ __, ____]
▇▇▇▇▇ Fargo Asset Securities Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[TRUSTEE]
[___________________]
[__________________________]
Re: The Pooling and Servicing Agreement, dated ____________, 200_,
among ▇▇▇▇▇ Fargo Asset Securities Corporation, as Seller, ▇▇▇▇▇
Fargo Bank Minnesota, National Association, as Master Servicer,
and [TRUSTEE], as Trustee, relating to the ▇▇▇▇▇ Fargo Asset
Securities Corporation; Mortgage Pass-Through Certificates,
Series 200_-__
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the
above-referenced Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), the undersigned, as Custodian on behalf of the Trustee, hereby
certifies that, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in any list of exceptions attached hereto, such
Mortgage File contains all of the items required to be delivered pursuant to
Section 2.01 of the Pooling and Servicing Agreement.
The Custodian has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this final
certification. The Custodian makes no representations as to: (i) the validity,
legality, sufficiency, enforceability, recordability or genuineness of any of
the documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Custodian on behalf of the Trustee
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
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