EXHIBIT 4.1
EXECUTION COPY
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ASSET BACKED FUNDING CORPORATION,
Depositor
HOMEQ SERVICING CORPORATION,
Servicer
and
JPMORGAN CHASE BANK,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2003
ABFC 2003-WMC1 Trust
ABFC Asset-Backed Certificates, Series 2003-WMC1
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms..................................................4
Section 1.02 Accounting....................................................50
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans..................................50
Section 2.02 Acceptance by Trustee.........................................52
Section 2.03 Repurchase or Substitution of Mortgage Loans by the
Originator or the Seller......................................53
Section 2.04 Execution of Yield Maintenance Agreement......................57
Section 2.05 Representations, Warranties and Covenants of the Servicer.....57
Section 2.06 Representations and Warranties of the Depositor...............59
Section 2.07 Issuance of Certificates and the Uncertificated Regular
Interests.....................................................61
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer...................................61
Section 3.02 Collection of Mortgage Loan Payments..........................63
Section 3.03 Realization Upon Defaulted Mortgage Loans.....................64
Section 3.04 Collection Account, Distribution Account and Reserve
Account.......................................................65
Section 3.05 Permitted Withdrawals From the Collection Account.............69
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts......................................................70
Section 3.07 Permitted Withdrawals From Escrow Account.....................70
Section 3.08 Payment of Taxes, Insurance and Other Charges;
Collections Thereunder........................................71
Section 3.09 Transfer of Accounts..........................................72
Section 3.10 Maintenance of Hazard Insurance...............................72
Section 3.11 Maintenance of Mortgage Impairment Insurance Policy...........73
Section 3.12 Fidelity Bond, Errors and Omissions Insurance.................73
Section 3.13 Title, Management and Disposition of REO Property.............74
Section 3.14 Due-on-Sale Clauses; Assumption and Substitution
Agreements....................................................75
Section 3.15 Superior Liens................................................76
Section 3.16 Optional Purchases of Mortgage Loans by Servicer..............77
Section 3.17 Trustee to Cooperate; Release of Files........................77
Section 3.18 Servicing Compensation........................................79
Section 3.19 Annual Statement as to Compliance.............................79
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Section 3.20 Annual Independent Certified Public Accountants' Reports......79
Section 3.21 Access to Certain Documentation and Information Regarding the
Mortgage Loans................................................80
Section 3.22 Duties of Credit Risk Manager.................................80
Section 3.23 Obligations of the Servicer in Respect of Compensating
Interest......................................................81
Section 3.24 Obligations of the Servicer in Respect of Mortgage Interest
Rates and Monthly Payments....................................81
Section 3.25 Investment of Funds in the Collection Account.................81
Section 3.26 Liability of Servicer; Indemnification........................82
Section 3.27 Reports of Foreclosure and Abandonment of Mortgaged
Properties....................................................83
Section 3.28 Protection of Assets..........................................83
Section 3.29 Limitation of Liability of the Credit Risk Manager............83
Section 3.30 No Personal Solicitation......................................84
Section 3.31 Periodic Filings..............................................84
Section 3.32 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act......................86
ARTICLE IV
FLOW OF FUNDS
Section 4.01 Interest Distributions........................................86
Section 4.02 Distributions of Principal and Monthly Excess Cashflow
Amounts.......................................................88
Section 4.03 Allocation of Losses..........................................92
Section 4.04 Method of Distribution........................................92
Section 4.05 Distributions on Book-Entry Certificates......................93
Section 4.06 Statements....................................................93
Section 4.07 Remittance Reports; Advances..................................96
Section 4.08 REMIC Distributions and Allocation of Losses..................97
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................100
Section 5.02 Registration of Transfer and Exchange of Certificates........101
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............106
Section 5.04 Persons Deemed Owners........................................107
Section 5.05 Appointment of Paying Agent..................................107
ARTICLE VI
THE SERVICER AND THE DEPOSITOR
Section 6.01 Liability of the Servicer and the Depositor..................107
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of,
the Servicer or the Depositor................................107
Section 6.03 Limitation on Liability of the Servicer and Others...........108
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Section 6.04 Servicer Not to Resign.......................................108
Section 6.05 Delegation of Duties.........................................109
ARTICLE VII
DEFAULT
Section 7.01 Servicer Events of Termination...............................111
Section 7.02 Trustee to Act; Appointment of Successor.....................113
Section 7.03 Waiver of Defaults...........................................114
Section 7.04 Notification to Certificateholders...........................114
Section 7.05 Survivability of Servicer Liabilities........................115
ARTICLE VIII
THE TRUSTEE
Section 8.01 Duties of Trustee............................................115
Section 8.02 Certain Matters Affecting the Trustee........................117
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans........118
Section 8.04 Trustee May Own Certificates.................................119
Section 8.05 Trustee Fees and Expenses....................................119
Section 8.06 Eligibility Requirements for Trustee.........................119
Section 8.07 Resignation or Removal of Trustee............................120
Section 8.08 Successor Trustee............................................120
Section 8.09 Merger or Consolidation of Trustee...........................121
Section 8.10 Appointment of Co-Trustee or Separate Trustee................121
Section 8.11 Limitation of Liability......................................122
Section 8.12 Trustee May Enforce Claims Without Possession of
Certificates.................................................122
Section 8.13 Suits for Enforcement........................................123
Section 8.14 Waiver of Bond Requirement...................................123
Section 8.15 Waiver of Inventory, Accounting and Appraisal Requirement....123
ARTICLE IX
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 9.01 REMIC Administration.........................................123
Section 9.02 Prohibited Transactions and Activities.......................125
Section 9.03 Indemnification with Respect to Certain Taxes and Loss of REMIC
Status.......................................................126
Section 9.04 REO Property.................................................126
Section 9.05 Grantor Trust Administration.................................127
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ARTICLE X
TERMINATION
Section 10.01 Termination..................................................127
Section 10.02 Additional Termination Requirements..........................129
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................130
Section 11.02 Recordation of Agreement; Counterparts.......................131
Section 11.03 Limitation on Rights of Certificateholders...................131
Section 11.04 Governing Law; Jurisdiction..................................132
Section 11.05 Notices......................................................133
Section 11.06 Severability of Provisions...................................133
Section 11.07 Article and Section References...............................133
Section 11.08 Notice to the Rating Agencies................................133
Section 11.09 Further Assurances...........................................134
Section 11.10 Benefits of Agreement........................................134
Section 11.11 Acts of Certificateholders...................................134
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EXHIBITS:
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Exhibit A-1 Form of Class A-1 Certificates
Exhibit A-2 Form of Class A-2 Certificates
Exhibit A-3 Form of Class A-3 Certificates
Exhibit B-1 Form of Class M-1 Certificates
Exhibit B-2 Form of Class M-2 Certificates
Exhibit B-3 Form of Class M-3 Certificates
Exhibit B-4 Form of Class M-4 Certificates
Exhibit B-5 Form of Class M-5 Certificates
Exhibit B-6 Form of Class M-6 Certificates
Exhibit C-1 Form of Class CE Certificates
Exhibit C-2 Form of Class P Certificates
Exhibit C-3 Form of Class R Certificates
Exhibit D-1 Group 1 Mortgage Loan Schedule
Exhibit D-2 Group 2 Mortgage Loan Schedule
Exhibit E Form of Request for Release
Exhibit F-1 Form of Trustee's Initial Certification
Exhibit F-2 Form of Trustee's Final Certification
Exhibit F-3 Form of Receipt of Mortgage Note
Exhibit G Mortgage Loan Purchase Agreement
Exhibit H Form of Lost Note Affidavit
Exhibit I Form of ERISA Representation
Exhibit J Form of Investment Letter
Exhibit K Form of Class R Certificate Transfer Affidavit
Exhibit L Form of Transferor Certificate
Exhibit M Monthly Information Provided by Servicer
Exhibit N Form of Yield Maintenance Agreement
Exhibit O Form of Sarbanes Oxley Certification
Exhibit P-1 Form of Certification of the Trustee to be Provided to
Depositor
Exhibit P-2 Form of Certification of the Servicer to be Provided to
Depositor
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This Pooling and Servicing Agreement is dated as of November 1, 2003
(the "Agreement"), among ASSET BACKED FUNDING CORPORATION, as depositor (the
"Depositor"), HOMEQ SERVICING CORPORATION, as servicer (the "Servicer"), and
JPMORGAN CHASE BANK, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor intends to sell pass-through certificates (collectively,
the "Certificates"), to be issued hereunder in multiple Classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of twelve Classes of
Certificates, designated as (i) the Class A-1, Class A-2 and Class A-3
Certificates, (ii) the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and
Class M-6 Certificates, (iii) the Class CE Certificates, (iv) the Class P
Certificates and (v) the Class R Certificate.
REMIC 1
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement (but exclusive of the Yield Maintenance
Agreement, the Reserve Fund, the Cap Carryover Arrangement, the Prepayment
Charges, the Originator Prepayment Charge Payment Amounts and the Servicer
Prepayment Charge Payment Amounts) as a real estate investment conduit (a
"REMIC") for federal income tax purposes, and such segregated pool of assets
will be designated as "REMIC 1." The Class R-1 Interest will represent the sole
class of "residual interests" in REMIC 1 for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, the Uncertificated REMIC 1 Pass-Through Rate, the initial
Uncertificated Principal Balance, and solely for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC 1 Regular Interests. None of the REMIC 1 Regular Interests
will be certificated.
Uncertificated
REMIC Initial Latest Possible
Designation Pass-Through Rate Uncertificated Balance Maturity Date(1)
--------------------- ----------------- ---------------------- ----------------
Lt1AA Variable(2) $209,764,866.24 October 25, 2033
LT1A1 Variable(2) $1,062,110.00 October 25, 2033
LT1A2 Variable(2) $533,915.00 October 25, 2033
LT1A3 Variable(2) $137,745.00 October 25, 2033
LT1M1 Variable(2) $138,060.00 October 25, 2033
LT1M2 Variable(2) $97,390.00 October 25, 2033
LT1M3 Variable(2) $47,090.00 October 25, 2033
LT1M4 Variable(2) $32,105.00 October 25, 2033
LT1M5 Variable(2) $27,825.00 October 25, 2033
LT1M6 Variable(2) $25,685.00 October 25, 2033
LT1ZZ Variable(2) $2,178,988.14 October 25, 2033
LT1SUB Variable(2) $4,982.81 October 25, 2033
LT1GRP Variable(2) $26,225.01 October 25, 2033
LT2SUB Variable(2) $3,150.95 October 25, 2033
LT2GRP Variable(2) $16,584.15 October 25, 2033
LT1XX Variable(2) $213,994,838.96 October 25, 2033
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date for
the Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each REMIC 1 Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 1
Pass-Through Rate" herein.
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REMIC 2
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the REMIC 1 Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC 2." The Class R-2 Interest represents the sole class of
"residual interests" in REMIC 2 for purposes of the REMIC Provisions. The
following table sets forth the Class designation, Pass-Through Rate and Original
Class Certificate Principal Balance, if applicable, for each Class of
Certificates. Each Class of Certificates, other than the Class P Certificates,
represents one or more of the "regular interests" in REMIC 2 created hereunder:
Original Class
Certificate
Certificate Principal Latest Possible
Class Designation Interest Rate Balance Maturity Date(1)
----------------- ------------- ------- ----------------
Class A-1............. Variable(2) $212,422,000 October 25, 2033
Class A-2............. Variable(2) $106,783,000 October 25, 2033
Class A-3............. Variable(2) $27,549,000 October 25, 2033
Class M-1............. Variable(2) $27,612,000 October 25, 2033
Class M-2............. Variable(2) $19,478,000 October 25, 2033
Class M-3............. Variable(2) $9,418,000 October 25, 2033
Class M-4............. Variable(2) $6,421,000 October 25, 2033
Class M-5............. Variable(2) $5,565,000 October 25, 2033
Class M-6............. Variable(2) $5,137,000 October 25, 2033
Class P**............. N/A(4) N/A(4) N/A
Class CE Variable(3) N/A N/A
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date following the maturity date for the Mortgage
Loan with the latest maturity date has been designated as the "latest possible
maturity date" for each Class of Certificates that represents one or more of the
"regular interests" in REMIC 2.
(2) Calculated in accordance with the definition of "Certificate Interest Rate"
herein.
(3) The Class CE Certificates will accrue interest at its variable
Certificate Interest Rate on the Notional Amount of the Class CE Certificates
outstanding from time to time which shall equal the aggregate of the
Uncertificated Principal Balances of the REMIC 1 Regular Interests. The Class CE
Certificates will not accrue interest on its Certificate Principal Balance.
(4) The Class P Certificates do not have a Certificate Principal Balance and do
not bear interest.
** The Class P Certificates represent the right to receive
payments in respect of Prepayment Charges, Originator Prepayment Charge Payment
Amounts and Servicer Prepayment Charge Payment Amounts. The Class P Certificates
will not represent an interest in any REMIC.
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement or in the Preliminary Statement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article. Interest on all Classes of REMIC Regular
Interests and Certificates will be calculated on the basis of the actual number
of days in the related Interest Accrual Period and a 360-day year.
"1933 Act": The Securities Act of 1933, as amended.
"60+ Day Delinquent Loan": Each Mortgage Loan (including each Mortgage
Loan in foreclosure and each Mortgage Loan for which the Mortgagor has filed for
bankruptcy after the Closing Date) with respect to which any portion of a
Monthly Payment is, as of the last day of the prior Collection Period, two
months or more past due and each Mortgage Loan relating to an REO Property.
"Account": Any of the Collection Account, the Distribution Account,
the Reserve Account or the Escrow Account. Each Account shall be an Eligible
Account.
"Accrued Certificate Interest": With respect to each Distribution Date
and Class of Certificates, an amount equal to the interest accrued at the
Certificate Rate described opposite such Class in the table in the Preliminary
Statement during the related Interest Accrual Period on the Certificate
Principal Balance of such Class of Certificates, reduced by such Class' Interest
Percentage of Relief Act Interest Shortfalls for such Distribution Date.
"Adjustable-Rate Mortgage Loan": A Mortgage Loan which has a rate at
which interest accrues that adjusts based on the Index plus a related Gross
Margin, as set forth and subject to the limitations in the related Mortgage
Note.
"Adjustment Date": With respect to each Adjustable-Rate Mortgage Loan,
each adjustment date on which the Mortgage Interest Rate of an Adjustable-Rate
Mortgage Loan changes pursuant to the related Mortgage Note. The first
Adjustment Date following the Cut-off Date as to each Adjustable-Rate Mortgage
Loan is set forth in the Mortgage Loan Schedules.
"Advance": As to any Mortgage Loan, any advance made by the Servicer
in respect of any Distribution Date pursuant to Section 4.07.
"Adverse REMIC Event": As defined in Section 9.01(f) hereof.
"Affiliate": With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise and "controlling" and "controlled" shall have meanings
correlative to the foregoing.
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"Agreement": This Pooling and Servicing Agreement and all amendments
and supplements hereto.
"Aggregate Overcollateralization Release Amount": With respect to any
Distribution Date, the lesser of (i) the Principal Remittance Amount and (ii)
the Overcollateralization Release Amount.
"Applicable Regulations": As to any Mortgage Loan, all federal, state
and local laws, statutes, rules and regulations applicable thereto.
"Applied Realized Loss Amount": With respect to each Distribution
Date, the allocation to the Class M Certificates of the excess, if any, of (a)
the aggregate of the Certificate Principal Balances of the Certificates (after
giving effect to all distributions on such Distribution Date) over (b) the Pool
Balance as of the end of the related Collection Period.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws of
the jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage.
"Assignment, Assumption and Recognition Agreement": The Assignment,
Assumption and Recognition Agreement, dated November 25, 2003, among the
Depositor, the Seller and the Originator.
"Assumed Final Maturity Date": As to each Class of Certificates, the
date set forth as such in the Preliminary Statement.
"Available Funds": As to any Distribution Date, an amount equal to the
excess of (i) the sum of (a) the aggregate of the Monthly Payments due during
the related Collection Period and received on or prior to the related
Determination Date by the Servicer, (b) Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds, Principal Prepayments, Substitution Adjustment
Amounts, the Purchase Price for any repurchased Mortgage Loan, the Termination
Price with respect to the termination of the Trust pursuant to Section 10.01
hereof and other unscheduled recoveries of principal and interest (excluding
Prepayment Charges, Originator Prepayment Charge Payment Amount and Servicer
Prepayment Charge Payment Amounts) in respect of the Mortgage Loans during the
related Prepayment Period, (c) the aggregate of any amounts received in respect
of an REO Property deposited in the Collection Account for such Distribution
Date, (d) any Compensating Interest for such Distribution Date, (e) the
aggregate of any Advances made by the Servicer for such Distribution Date and
(f) any Reimbursement Amount deposited into the Collection Account during the
related Prepayment Period over (ii) the sum of (a) amounts reimbursable or
payable to the Servicer pursuant to Sections 3.05 or 6.03, (b) amounts
reimbursable or payable to the Trustee pursuant to Section 8.05 (other than
Trustee Fees) or Section 9.01(c), (c) Stayed Funds, (d) the Servicing Fee and
(e) amounts deposited in the Collection Account or the Distribution Account, as
the case may be, in error.
"Balloon Mortgage Loan": A Mortgage Loan that provides for the payment
of the unamortized principal balance of such Mortgage Loan in a single payment
at the maturity of such Mortgage Loan that is substantially greater than the
preceding monthly payment.
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"Balloon Payment": A payment of the unamortized principal balance of a
Mortgage Loan in a single payment at the maturity of such Mortgage Loan that is
substantially greater than the preceding Monthly Payment.
"Bankruptcy Code": Title 11 of the United States Code, as amended.
"Book-Entry Certificates": Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of which
is reflected on the books of the Depository or on the books of a Person
maintaining an account with the Depository (directly, as a "Depository
Participant," or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.02 hereof). On the Closing
Date, the Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5 and Class M-6 Certificates shall be Book-Entry
Certificates.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of Texas, the State of New York, the
State of California, the State of New Jersey, the city in which the offices of
the Servicer are located or in the city in which the Corporate Trust Office of
the Trustee is located are authorized or obligated by law or executive order to
be closed.
"Cap": Any of the Group 1 Cap, the Group 2 Cap or the Pool Cap.
"Cap Amount": With respect to each Distribution Date and Class of
Offered Certificates, the product of (i) the Yield Maintenance Agreement Payment
for such Distribution Date and (ii) a fraction, the numerator of which is the
Certificate Principal Balance of such Class immediately prior to such
Distribution Date and the denominator of which is the aggregate Certificate
Principal Balance of the Offered Certificates immediately prior to such
Distribution Date.
"Cap Carryover Amount": If on any Distribution Date, the Accrued
Certificate Interest for any Offered Certificate is based upon a Cap, the excess
of (i) the amount of interest such Certificate would have been entitled to
receive on such Distribution Date based on the related Pass-Through Rate, over
(ii) the amount of interest such Certificate received on such Distribution Date
based on the related Cap, together with the unpaid portion of any such excess
from prior Distribution Dates (and interest accrued thereon at the then
applicable Pass-Through Rate on such Certificate).
"Certificate": Any Regular Certificate or Class R Certificate.
"Certificate Custodian": Initially, JPMorgan Chase Bank; thereafter
any other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Interest Rate": With respect to each Distribution Date
during the Interest Accrual Period and each Class of Offered Certificates, a per
annum rate the lesser of (i) the Pass-Through Rate and (ii) the applicable Cap
for such Distribution Date. With respect to the Class CE Certificate, its
Pass-Through Rate.
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"Certificate Owner": With respect to each Book-Entry Certificate, any
beneficial owner thereof.
"Certificate Principal Balance": With respect to any Class of
Certificates (other than the Class CE, the Class P and the Class R Certificates)
and any Distribution Date, the Original Class Certificate Principal Balance
reduced by the sum of (i) all amounts actually distributed in respect of
principal of such Class on all prior Distribution Dates and (ii) Applied
Realized Loss Amounts allocated thereto. With respect to any Certificate (other
than a Class CE, Class P or Class R Certificate) of a Class and any Distribution
Date, the portion of the Certificate Principal Balance of such Class represented
by such Certificate equal to the product of the Percentage Interest evidenced by
such Certificate and the Certificate Principal Balance of such Class. With
respect to each Class CE Certificate as of any date of determination, an amount
equal to the Percentage Interest evidenced by such Certificate times the excess,
if any, of the then aggregate Uncertificated Principal Balances of the REMIC 1
Regular Interests over the aggregate Certificate Principal Balance of the
Offered Certificates then outstanding. The Class P and the Class R Certificates
do not have a Certificate Principal Balance.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02 hereof.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or non-U.S. Person shall not be a Holder of the Class
R Certificate for any purpose hereof.
"Certification": As defined in Section 3.32(b) hereof.
"Charged-Off Mortgage Loan": As defined in Section 3.03 hereof.
"Class": Collectively, Certificates or REMIC Regular Interests which
have the same priority of payment and bear the same class designation and the
form of which is identical except for variation in the Percentage Interest
evidenced thereby.
"Class A-1 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.370% per annum, and (ii) following the
Optional Termination Date, 0.740% per annum.
"Class A-1 Pass-Through Rate": For each Distribution Date, a rate per
annum equal to the lesser of (a) One-Month LIBOR as of the related LIBOR
Determination Date, plus the Class A-1 Certificate Margin and (b) the Group 1
Maximum Rate Cap.
"Class A-2 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.230% per annum, and (ii) following the
Optional Termination Date, 0.460% per annum.
"Class A-2 Pass-Through Rate": For each Distribution Date, a rate per
annum equal to the lesser of (a) One-Month LIBOR as of the related LIBOR
Determination Date, plus the Class A-2 Certificate Margin and (b) the Group 2
Maximum Rate Cap.
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"Class A-3 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.550% per annum, and (ii) following the
Optional Termination Date, 1.100% per annum.
"Class A-3 Pass-Through Rate": For each Distribution Date, a rate per
annum equal to the lesser of (a) One-Month LIBOR as of the related LIBOR
Determination Date, plus the Class A-3 Certificate Margin and (b) the Group 2
Maximum Rate Cap.
"Class A Certificate": Any one of the Certificates with an "A"
designated on the face thereof substantially in the form annexed hereto as
Exhibits ▇-▇, ▇-▇ and A-3, executed by the Trustee on behalf of the Trust and
authenticated and delivered by the Certificate Registrar, representing the right
to distributions as set forth herein and therein.
"Class A Certificateholders": Collectively, the Holders of the Class A
Certificates.
"Class CE Certificates": Any one of the Class CE Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit C-1, executed by the Trustee on behalf of the Trust and authenticated
and delivered by the Certificate Registrar, representing the right to
distributions as set forth herein and therein.
Class CE Distributable Amount": With respect to any Distribution Date,
the sum of (i) the interest accrued on such Class CE Certificate at its
Pass-Through Rate calculated on its Notional Amount less the amount (without
duplication) of Cap Carryover Amounts paid pursuant to Section 4.02(b)(xxi),
(ii) any remaining Aggregate Overcollateralization Release Amounts and (iii) the
aggregate of amounts remaining in the Reserve Account after the distributions
pursuant to Section 3.04(g)(i)(B).
"Class M Certificate": Any one of the Certificates with an "M"
designated on the face thereof substantially in the form annexed hereto as
Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇, Exhibit B-4, Exhibit B-5 and Exhibit B-6,
executed by the Trustee on behalf of the Trust and authenticated and delivered
by the Certificate Registrar, representing the right to distributions as set
forth herein and therein.
"Class M Certificateholders": Collectively, the Holders of the Class M
Certificates.
"Class M-1 Applied Realized Loss Amount": As to the Class M-1
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class M-1 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the Applied Realized Loss Amount as
of such Distribution Date over (ii) the sum of the Class M-2 Applied Realized
Loss Amount, the Class M-3 Applied Realized Loss Amount, the Class M-4 Applied
Realized Loss Amount, the Class M-5 Applied Realized Loss Amount and the Class
M-6 Applied Realized Loss Amount, in each case as of such Distribution Date.
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"Class M-1 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 0.650% per annum, and (ii) following the
Optional Termination Date, 0.975% per annum.
"Class M-1 Pass-Through Rate": For each Distribution Date, the lesser
of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus the
Class M-1 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-1 Principal Distribution Amount": As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the Certificate Principal Balances of the Class
A Certificates (after taking into account the payment of the Senior Principal
Distribution Amount on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class M-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 74.90% and (ii)
the Pool Balance as of the last day of the related Collection Period and (B) the
Pool Balance as of the last day of the related Collection Period minus the
product of 0.50% and the Cut-off Date Aggregate Principal Balance.
"Class M-1 Realized Loss Amortization Amount": As to the Class M-1
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-1 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (iv) hereof, in each case
for such Distribution Date.
"Class M-2 Applied Realized Loss Amount": As to the Class M-2
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class M-2 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the sum of the Class M-3 Applied
Realized Loss Amount, the Class M-4 Applied Realized Loss Amount, the Class M-5
Applied Realized Loss Amount and the Class M-6 Applied Realized Loss Amount as
of such Distribution Date.
"Class M-2 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 1.600% per annum, and (ii) following the
Optional Termination Date, 2.400% per annum.
"Class M-2 Pass-Through Rate": For each Distribution Date, the lesser
of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus the
Class M-2 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-2 Principal Distribution Amount": As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the Certificate Principal Balances of the Class
A Certificates (after taking into account the payment of the Senior Principal
Distribution Amount on such Distribution Date), (ii) the Certificate Principal
Balance of the Class M-1 Certificates (after taking into account the payment of
the Class M-1 Principal Distribution Amount on such Distribution Date) and (iii)
the Certificate Principal Balance of the Class M-2 Certificates immediately
prior to such Distribution
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Date over (y) the lesser of (A) the product of (i) 84.00% and (ii) the Pool
Balance as of the last day of the related Collection Period and (B) the Pool
Balance as of the last day of the related Collection Period minus the product of
0.50% and the Cut-off Date Aggregate Principal Balance.
"Class M-2 Realized Loss Amortization Amount": As to the Class M-2
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-2 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (vii) hereof, in each
case for such Distribution Date.
"Class M-3 Applied Realized Loss Amount": As to the Class M-3
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class M-3 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the sum of the Class M-4 Applied
Realized Loss Amount, the Class M-5 Applied Realized Loss Amount and the Class
M-6 Applied Realized Loss Amount as of such Distribution Date.
"Class M-3 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 1.850% per annum, and (ii) following the
Optional Termination Date, 2.775% per annum.
"Class M-3 Pass-Through Rate": For each Distribution Date, the lesser
of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus the
Class M-3 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-3 Principal Distribution Amount": As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the payment of the Class M-2 Principal Distribution
Amount on such Distribution Date), and (iv) the Certificate Principal Balance of
the Class M-3 Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) 88.40% and (ii) the Pool Balance as of the
last day of the related Collection Period and (B) the Pool Balance as of the
last day of the related Collection Period minus the product of 0.50% and the
Cut-off Date Aggregate Principal Balance.
"Class M-3 Realized Loss Amortization Amount": As to the Class M-3
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-3 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (x) hereof, in each case
for such Distribution Date.
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"Class M-4 Applied Realized Loss Amount": As to the Class M-4
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class M-4 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the sum of the Class M-5 Applied
Realized Loss Amount and the Class M-6 Applied Realized Loss Amount as of such
Distribution Date.
"Class M-4 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 3.000% per annum, and (ii) following the
Optional Termination Date, 4.500% per annum.
"Class M-4 Pass-Through Rate": For each Distribution Date, the lesser
of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus the
Class M-4 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-4 Principal Distribution Amount": As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the payment of the Class M-2 Principal Distribution
Amount on such Distribution Date), (iv) the Certificate Principal Balance of the
Class M-3 Certificates immediately prior to such Distribution Date and (v) the
Certificate Principal Balance of the Class M-4 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 91.40% and
(ii) the Pool Balance as of the last day of the related Collection Period and
(B) the Pool Balance as of the last day of the related Collection Period minus
the product of 0.50% and the Cut-off Date Aggregate Principal Balance.
"Class M-4 Realized Loss Amortization Amount": As to the Class M-4
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-4 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (xiii) hereof, in each
case for such Distribution Date.
"Class M-5 Applied Realized Loss Amount": As to the Class M-5
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class M-5 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the excess of (i) the related Applied Realized Loss
Amount as of such Distribution Date over (ii) the Class M-6 Applied Realized
Loss Amount as of such Distribution Date.
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"Class M-5 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 3.750% per annum, and (ii) following the
Optional Termination Date, 5.625% per annum.
"Class M-5 Pass-Through Rate": For each Distribution Date, the lesser
of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus the
Class M-5 Certificate Margin and (b) the Pool Maximum Rate Cap.
"Class M-5 Principal Distribution Amount": As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the payment of the Class M-2 Principal Distribution
Amount on such Distribution Date), (iv) the Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account the
payment of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (vi) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 94.00% and (ii) the Pool Balance as of the last day of the
related Collection Period and (B) the Pool Balance as of the last day of the
related Collection Period minus the product of 0.50% and the Cut-off Date
Aggregate Principal Balance.
"Class M-5 Realized Loss Amortization Amount": As to the Class M-5
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-5 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (xvi) hereof, in each
case for such Distribution Date.
"Class M-6 Applied Realized Loss Amount": As to the Class M-6
Certificates and as of any Distribution Date, the lesser of (x) the Certificate
Principal Balance thereof (after taking into account the distribution of the
Principal Distribution Amount on such Distribution Date, but prior to the
application of the Class M-6 Applied Realized Loss Amount, if any, on such
Distribution Date) and (y) the related Applied Realized Loss Amount as of such
Distribution Date.
"Class M-6 Certificate Margin": For each Distribution Date (i) on or
prior to the Optional Termination Date, 3.750% per annum, and (ii) following the
Optional Termination Date, 5.625% per annum.
"Class M-6 Pass-Through Rate": For each Distribution Date, the least
of (a) One-Month LIBOR as of the related LIBOR Determination Date, plus the
Class M-6 Certificate Margin and (b) the Pool Maximum Rate Cap.
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"Class M-6 Principal Distribution Amount": As of any Distribution Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
the excess of (x) the sum of (i) the sum of the Certificate Principal Balances
of the Class A Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the payment of the Class M-2 Principal Distribution
Amount on such Distribution Date), (iv) the Certificate Principal Balance of the
Class M-3 Certificates (after taking into account the payment of the Class M-3
Principal Distribution Amount on such Distribution Date), (v) the Certificate
Principal Balance of the Class M-4 Certificates (after taking into account the
payment of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the payment of the Class M-5 Principal Distribution
Amount on such Distribution Date) and (vii) the Certificate Principal Balance of
the Class M-6 Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) 96.40% and (ii) the Pool Balance as of the
last day of the related Collection Period and (B) the Pool Balance as of the
last day of the related Collection Period minus the product of 0.50% and the
Cut-off Date Aggregate Principal Balance.
"Class M-6 Realized Loss Amortization Amount": As to the Class M-6
Certificates and as of any Distribution Date, the lesser of (x) the Unpaid
Realized Loss Amount for the Class M-6 Certificates as of such Distribution Date
and (y) the excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum
of the amounts described in Section 4.02(b)(i) through (xix) hereof, in each
case for such Distribution Date.
"Class P Certificate": Any one of the Certificates with a "P"
designated on the face thereof substantially in the form annexed hereto as
Exhibit C-2, executed by the Trustee on behalf of the Trust and authenticated
and delivered by the Certificate Registrar, representing the right to
distributions as set forth herein and therein.
"Class R Certificate": The Class R Certificate executed by the Trustee
on behalf of the Trust, and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit C-3 and
evidencing the ownership of the Residual Interest in each of REMIC 1 and REMIC
2. The Class R Certificate represents the ownership of the Class R-1 Interest
and the Class R-2 Interest.
"Class R-1 Interest": The uncertificated residual interest in REMIC 1.
"Class R-2 Interest": The uncertificated residual interest in REMIC 2.
"Closing Date": November 25, 2003.
"Code": The Internal Revenue Code of 1986, as it may be amended from
time to time.
"Collection Account": The account or accounts created and maintained
by the Servicer pursuant to Section 3.04, which shall be entitled "Collection
Account, HomEq Servicing Corporation, as Servicer for the Trust under the
Pooling and Servicing Agreement
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dated as of November 1, 2003 among Asset Backed Funding Corporation, as
Depositor, HomEq Servicing Corporation, as Servicer, and JPMorgan Chase Bank, as
Trustee, in trust for registered Holders of ABFC 2003-WMC1 Trust, ABFC
Asset-Backed Certificates, Series 2003-WMC1," and which must be an Eligible
Account.
"Collection Period": With respect to any Distribution Date, the period
from the second day of the calendar month preceding the month in which such
Distribution Date occurs through the first day of the month in which such
Distribution Date occurs.
"Combined Loan-to-Value Ratio": For any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the sum of (i) the
Principal Balance of the Mortgage Loan at origination and (ii) the principal
balance of the related senior mortgage loan, if any, on the date of origination
of the Mortgage Loan and the denominator of which is the Value of the related
Mortgaged Property.
"Compensating Interest": As defined in Section 3.23 hereof.
"Condemnation Proceeds": All awards or settlements in respect of a
taking of a Mortgaged Property by exercise of the power of eminent domain or
condemnation.
"Consulting Agreement": The Consulting Agreement between The
Murrayhill Company, as credit risk manager, and the Depositor.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at 4 New York Plaza, 6th Floor,
New York, New York, 10004-2477, Attention: Global Debt Services; ABFC 2003-WMC1
or at such other address as the Trustee may designate from time to time by
notice to the Certificateholders, the Depositor and the Servicer.
"Corresponding Classes": With respect to REMIC 1 and REMIC 2, the
following Classes shall be Corresponding Classes:
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CORRESPONDING REMIC 1 CLASSES CORRESPONDING REMIC 2 CLASSES
--------------------------------------------------------------------------------
LT1A1 Class A-1 Certificates
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LT1A2 Class A-2 Certificates
--------------------------------------------------------------------------------
LT1A3 Class A-3 Certificates
--------------------------------------------------------------------------------
LT1M1 Class M-1 Certificates
--------------------------------------------------------------------------------
LT1M2 Class M-2 Certificates
--------------------------------------------------------------------------------
LT1M3 Class M-3 Certificates
--------------------------------------------------------------------------------
LT1M4 Class M-4 Certificates
--------------------------------------------------------------------------------
LT1M5 Class M-5 Certificates
--------------------------------------------------------------------------------
LT1M6 Class M-6 Certificates
--------------------------------------------------------------------------------
"Credit Risk Manager": The Murrayhill Company, a Colorado corporation.
"Credit Risk Manager Fee": The fee payable to the Credit Risk Manager
on each Distribution Date for its services as Credit Risk Manager, in an amount
equal to the product of (i) one-twelfth of the Credit Risk Manager Fee Rate and
(ii) the Pool Balance as of the opening of business on the first day of the
related Collection Period.
"Credit Risk Manager Fee Rate": With respect to any Distribution Date,
0.0175% per annum.
"Credit Risk Management Agreement": The Credit Risk Management
Agreement between the Servicer and the Credit Risk Manager dated November 25,
2003.
"Cumulative Loss Percentage": With respect to any Distribution Date,
the percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses incurred from the Cut-off Date through the last day of
the calendar month preceding the month in which such Distribution Date occurs
and the denominator of which is the Cut-off Date Aggregate Pricipal Balance of
the Mortgage Loans.
"Cut-off Date": November 1, 2003.
"Cut-off Date Aggregate Principal Balance": The aggregate of the
Cut-off Date Principal Balances of the Mortgage Loans.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the unpaid principal balance thereof as of the Cut-off Date after application of
funds received or
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advanced on or before such date (or as of the applicable date of substitution
with respect to an Eligible Substitute Mortgage Loan).
"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 resulting from a Deficient Valuation.
"Defective Mortgage Loan": A Mortgage Loan replaced or to be replaced
by one or more Eligible Substitute Mortgage Loans.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.02(c) hereof.
"Delinquent": Any Mortgage Loan with respect to which the Monthly
Payment due on a Due Date is not made by the close of business on the next
scheduled Due Date for such Mortgage Loan.
"Depositor": Asset Backed Funding Corporation, a Delaware corporation,
or any successor in interest.
"Depository": The initial depository shall be The Depository Trust
Company, whose nominee is Cede & Co., or any other organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The Depository
shall initially be the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a "clearing corporation" as defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York.
"Depository Participant": A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the 15th
day of the calendar month in which such Distribution Date occurs or, if such
15th day is not a Business Day, the Business Day immediately preceding such 15th
day.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by the Trust other than through an
Independent Contractor; provided, however, that the Trustee (or the Servicer
under this Agreement) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Servicer under this Agreement)
establishes rental terms,
-16-
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Disqualified Organization": A "disqualified organization" under
Section 860E of the Code, which as of the Closing Date is any of: (i) the United
States, any state or political subdivision thereof, any possession of the United
States, any foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (ii) any organization (other than a
cooperative described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code unless such organization is subject to the tax
imposed by Section 511 of the Code, (iii) any organization described in Section
1381(a)(2)(C) of the Code, or (iv) any other Person so designated by the Trustee
based upon an Opinion of Counsel provided by nationally recognized counsel to
the Trustee that the holding of an ownership interest in the Class R Certificate
by such Person may cause the Trust Fund or any Person having an ownership
interest in any Class of Certificates (other than such Person) to incur
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the transfer of an ownership interest in the Class R Certificate
to such Person. A corporation will not be treated as an instrumentality of the
United States or of any state or political subdivision thereof if all of its
activities are subject to tax and a majority of its board of directors is not
selected by a governmental unit. The term "United States," "state" and
"international organization" shall have the meanings set forth in Section 7701
of the Code.
"Distribution Account": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b) which shall be entitled
"Distribution Account, JPMorgan Chase Bank, as Trustee, in trust for the
registered Holders of ABFC 2003-WMC1 Trust, ABFC Asset-Backed Certificates,
Series 2003-WMC1" and which must be an Eligible Account.
"Distribution Date": The 25th day of any calendar month, or if such
25th day is not a Business Day, the Business Day immediately following such 25th
day, commencing in December 2003.
"Distribution Date Statement": As defined in Section 4.06(a) hereof.
"Due Date": With respect to each Mortgage Loan and any Distribution
Date, the day of the calendar month in which such Distribution Date occurs on
which the Monthly Payment for such Mortgage Loan was due, exclusive of any grace
period.
"Eligible Account": Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the short-term unsecured debt obligations of such holding company) are
rated "A-1+" by S&P, "P-1" by ▇▇▇▇▇'▇ and "F-1" by Fitch (or comparable ratings
if S&P, ▇▇▇▇▇'▇ and Fitch are not the Rating Agencies) by each of the Rating
Agencies at the time any amounts are held on deposit therein, (ii) an account or
accounts the deposits in which are fully insured by the FDIC, (iii) a trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity or (iv) an account otherwise acceptable to each
Rating Agency without reduction or withdrawal of their then current ratings
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of the Certificates as evidenced by a letter from each Rating Agency to the
Trustee. Eligible Accounts may bear interest.
"Eligible Investments": Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued or managed by the Depositor, the Servicer, the Trustee or any
of their respective Affiliates or for which an Affiliate of the Trustee serves
as an advisor:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of 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) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by or federal funds sold by any depository
institution or trust company (including the Trustee or its agents acting in
their respective commercial capacities) 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 authorities, so long as, at the
time of such investment or contractual commitment providing for such
investment, such depository institution or trust company or its ultimate
parent has a short-term unsecured debt rating in the highest available
rating category of S&P and Fitch and one of the two highest rating
categories of ▇▇▇▇▇'▇ and provided that each such investment has an
original maturity of no more than 365 days and (B) any other demand or time
deposit or deposit which is fully insured by the FDIC;
(iii) repurchase obligations with a term not to exceed 30 days with
respect to any security described in clause (i) above and entered into with
a depository institution or trust company (acting as principal) with a
short-term rating in the highest available rating category of S&P and Fitch
and one of the two highest rating categories of ▇▇▇▇▇'▇; provided, however,
that collateral transferred pursuant to such repurchase obligation must be
of the type described in clause (i) above and must (A) be valued daily at
current market prices plus accrued interest or (B) pursuant to such
valuation, be equal, at all times, to 105% of the cash transferred by the
Trustee in exchange for such collateral and (C) be delivered to the Trustee
or, if the Trustee is supplying the collateral, an agent for the Trustee,
in such a manner as to accomplish perfection of a security interest in the
collateral by possession of certificated securities;
(iv) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America or any State thereof and that are rated by each Rating Agency in
its highest long-term unsecured rating categories at the time of such
investment or contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition thereof)
that is rated by each Rating Agency in its highest short-term unsecured
debt rating available at the time of such investment;
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(vi) units of money market funds registered under the Investment
Company Act of 1940 (including funds managed or advised by the Trustee or
affiliates thereof) that, if rated by each Rating Agency, are rated in its
highest rating category; and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies in writing as an
eligible investment of funds backing securities having ratings equivalent
to its highest initial rating of the Senior Certificates;
provided, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) 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 par greater than 120% of the
yield to maturity at par of the underlying obligations.
"Eligible Substitute Mortgage Loan": A mortgage loan substituted for a
Defective Mortgage Loan pursuant to the terms of this Agreement which must, on
the date of such substitution, (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of, and not more than 5% less
than, the outstanding principal balance of the Defective Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs, (ii) have a
Mortgage Interest Rate, with respect to a Fixed-Rate Mortgage Loan, not less
than the Mortgage Interest Rate of the Defective Mortgage Loan and not more than
1% in excess of the Mortgage Interest Rate of such Defective Mortgage Loan,
(iii) have the same Due Date as the Defective Mortgage Loan; (iv) if an
Adjustable-Rate Mortgage Loan, have a Maximum Mortgage Interest Rate not less
than the Maximum Mortgage Interest Rate for the Defective Mortgage Loan, (v) if
an Adjustable-Rate Mortgage Loan, have a Minimum Mortgage Interest Rate not less
than the Minimum Mortgage Interest Rate of the Defective Mortgage Loan, (vi) if
an Adjustable-Rate Mortgage Loan, have a Gross Margin equal to or greater than
the Gross Margin of the Defective Mortgage Loan, (vii) if an Adjustable-Rate
Mortgage Loan, have the same Index as the Defective Mortgage Loan, (viii) if an
Adjustable-Rate Mortgage Loan, have a next Adjustment Date not more than two
months later than the next Adjustment Date on the Defective Mortgage Loan, (ix)
if an Adjustable-Rate Mortgage Loan have all Adjustment Dates occurring during
the same Interest Accrual Period during which Adjustment Dates occur with
respect to the Defective Mortgage Loan, (x) have a remaining term to maturity
not greater than (and not more than one year less than) that of the Defective
Mortgage Loan, (xi) be current as of the date of substitution, (xii) have a
Combined Loan-to-Value Ratio as of the date of substitution equal to or lower
than the Combined Loan-to-Value Ratio of the Defective Mortgage Loan as of such
date, (xiii) have a risk grading determined by the Seller at least equal to the
risk grading assigned on the Defective Mortgage Loan, (xiv) have been
underwritten or reunderwritten in accordance with the same underwriting criteria
and guidelines as the Defective Mortgage Loan, (xv) have the same lien priority
as the Defective Mortgage Loan; (xvi) have a Prepayment Charge at least equal in
amount and duration of that of the Defective Mortgage Loan and (xvii) conform to
each representation and warranty set forth in Section 3.02 of the Originator
Mortgage Loan Purchase Agreement and Section 3.01 of the Mortgage Loan Purchase
Agreement applicable to the Defective Mortgage Loan. In the event that one or
more mortgage loans are substituted for one or more Defective Mortgage Loans,
the amounts described in clause (i) hereof shall be
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determined on the basis of aggregate principal balances, the Mortgage Interest
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Interest Rates, the risk gradings described in clause
(xiii) hereof shall be satisfied as to each such mortgage loan, the terms
described in clause (ix) hereof shall be determined on the basis of weighted
average remaining term to maturity, the Combined Loan-to-Value Ratios described
in clause (xii) hereof shall be satisfied as to each such mortgage loan and,
except to the extent otherwise provided in this sentence, the representations
and warranties described in clause (xvii) hereof must be satisfied as to each
Eligible Substitute Mortgage Loan or in the aggregate, as the case may be. Any
Defective Mortgage Loan that is a Group 1 Mortgage Loan or Group 2 Mortgage Loan
must be replaced by an Eligible Substitute Mortgage Loan that will be a Group 1
or Group 2 Mortgage Loan, as applicable.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA-Restricted Certificates": The Class CE, Class P and Class R
Certificates and any Class of Certificates that no longer meets the rating
requirements of Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(August 22, 2002).
"Escrow Account": The account or accounts created and maintained
pursuant to Section 3.06.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums and other payments required to be escrowed by the Mortgagor with the
mortgagee pursuant to any Mortgage Loan.
"Estate in Real Property": A fee simple estate in a parcel of real
property.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Expense Fee Rate": The sum of (i) the Trustee Fee Rate, (ii) the
Servicing Fee Rate and (iii) the Credit Risk Manager Fee Rate.
"Extended Period": As defined in Section 9.04(b).
"Extra Principal Distribution Amount": As of any Distribution Date,
the lesser of (x) the Monthly Excess Interest Amount for such Distribution Date
and (y) the Overcollateralization Deficiency for such Distribution Date.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Fidelity Bond": Shall have the meaning assigned thereto in Section
3.12.
"Final Recovery Determination": With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property (i)
purchased by the Seller pursuant to or as contemplated by Section 2.03, (ii)
purchased by the Originator pursuant to Section 3.03 of the Originator Mortgage
Loan Purchase Agreement, (iii) purchased by the Servicer pursuant to Section
3.16 or (iv) purchased by the Majority Class CE Certificateholder or
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the Servicer pursuant to Section 10.01), a determination made by the Servicer
that all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and
other payments or recoveries which the Servicer, in its reasonable good faith
judgment, expects to be finally recoverable in respect thereof have been so
recovered. The Servicer shall maintain records, prepared by a Servicing Officer,
of each Final Recovery Determination made thereby.
"Fitch": Fitch, Inc. and its successors, and if such company shall for
any reason no longer perform the functions of a securities rating agency,
"Fitch" shall be deemed to refer to any other "nationally recognized statistical
rating organization" as set forth on the most current list of such organizations
released by the Securities and Exchange Commission.
"Fixed-Rate Mortgage Loan": A Mortgage Loan which has a constant
annual rate at which interest accrues in accordance with the provisions of the
related Mortgage Note.
"Foreclosure Price": The amount reasonably expected to be received
from the sale of the related Mortgaged Property net of any expenses associated
with foreclosure proceedings.
"Form 10-K": As defined in Section 3.31(a) hereof.
"Grantor Trust": That portion of the Trust exclusive of REMIC 1 and
REMIC 2 consisting of (a) the Prepayment Charges, any Originator Prepayment
Charge Payment Amounts and any Servicer Prepayment Charge Payment Amounts and
the right of the Class P Certificateholders to receive such Prepayment Charges,
Originator Prepayment Charge Payment Amounts and Servicer Prepayment Charge
Payment Amounts, (b) the right of the Offered Certificates to receive Cap
Carryover Amounts, (c) the Yield Maintenance Agreement, the Reserve Account and
the beneficial interest of the Class CE Certificates with respect thereto and
(d) the obligation of the Class CE Certificates to pay Cap Carryover Amounts.
"Gross Margin": With respect to each Adjustable-Rate Mortgage Loan,
the fixed percentage set forth in the related Mortgage Note that is added to the
Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note used to determine the Mortgage Interest Rate for such Mortgage
Loan.
"Group 1 Basic Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the product of (a) the excess of (i) the
Group 1 Principal Remittance Amount for such Distribution Date over (ii) the
Overcollateralization Release Amount, if any, for such Distribution Date and (b)
the Group 1 Principal Percentage.
"Group 1 Cap": As of any Distribution Date and the Class A-1
Certificates, a per annum rate, adjusted by multiplying such rate by a fraction
equal to 30 over the actual number of days in the related Interest Accrual
Period, equal to the Weighted Average Net Mortgage Interest Rate for the Group 1
Mortgage Loans. For federal income tax purposes, the economic equivalent of such
rate shall be expressed as the weighted average of the REMIC 1 Remittance Rate
on REMIC 1 Regular Interest LT1GRP, weighted on the basis of the Uncertificated
Balance of such REMIC 1 Regular Interest.
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"Group 1 Interest Remittance Amount": As of any Distribution Date, the
sum, without duplication, of (i) all interest due and collected or advanced with
respect to the related Collection Period on the Group 1 Mortgage Loans received
by the Servicer on or prior to the Determination Date for such Distribution Date
(less the Servicing Fee, amounts available for reimbursement of Advances and
Servicing Advances pursuant to Section 3.05 and expenses reimbursable pursuant
to Section 6.03), (ii) all Compensating Interest paid by the Servicer on the
related Distribution Date with respect to such Mortgage Loans, (iii) the portion
of any payment in connection with any Principal Prepayment, substitution,
Purchase Price, Termination Price, Insurance Proceeds or Net Liquidation
Proceeds relating to interest with respect to such Mortgage Loans received
during the related Prepayment Period and (iv) the portion of any Reimbursement
Amount relating to interest with respect to such Mortgage Loans received during
the related Prepayment Period.
"Group 1 Maximum Rate Cap": With respect to any Distribution Date and
for the Class A-1 Certificates, a per annum rate, adjusted by multiplying such
rate by a fraction equal to 30 over the actual number of days in the related
Interest Accrual Period, equal to the average of the Net Maximum Mortgage
Interest Rates of the Group 1 Mortgage Loans, weighted on the basis of the
Principal Balances of the Group 1 Mortgage Loans as of the first day of the
related Collection Period.
"Group 1 Mortgage Loan": Each Mortgage Loan listed on Exhibit D-1
hereto. Each Group 1 Mortgage Loan had, as of the Cut-off Date, a Principal
Balance that conforms to ▇▇▇▇▇▇ ▇▇▇ guidelines.
"Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the product of (a) the sum of (i) the
Group 1 Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date and (b) the
Group 1 Principal Percentage.
"Group 1 Principal Percentage": With respect to any Distribution Date
and the Class A-1 Certificates, the percentage equivalent to a fraction, the
numerator of which is the Group 1 Principal Remittance Amount for such
Distribution Date and the denominator of which is the Principal Remittance
Amount allocable to the Mortgage Loans for such Distribution Date.
"Group 1 Principal Remittance Amount": With respect to any
Distribution Date and the Group 1 Mortgage Loans, to the extent of funds
available therefor, the sum (less amounts available for reimbursement of
Advances and Servicing Advances pursuant to Section 3.05 and expenses
reimbursable pursuant to Section 6.03) of: (i) each payment of principal on a
Group 1 Mortgage Loan due during the related Collection Period and received by
the Servicer on or prior to the related Determination Date, and any Advances
with respect thereto, (ii) all full and partial Principal Prepayments of Group 1
Mortgage Loans received by the Servicer during the related Prepayment Period,
(iii) Insurance Proceeds and Net Liquidation Proceeds allocable to principal
actually collected by the Servicer during the related Prepayment Period with
respect to the Group 1 Mortgage Loans, (iv) the portion of the Purchase Price
allocable to principal of all repurchased Group 1 Mortgage Loans with respect to
such Prepayment Period, (v) any Substitution Adjustment Amounts received during
the related Prepayment Period with respect to Group 1 Mortgage Loans and (vi) on
the Distribution Date on which the Trust is to be terminated in
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accordance with Section 10.01 hereof, that portion of the Termination Price in
respect of principal.
"Group 1 Senior Principal Distribution Amount": With respect to any
Distribution Date, the excess of (i) the Certificate Principal Balance of the
Class A-1 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (a) the product of (y) approximately 62.00% and (z) the aggregate
Principal Balance of the Group 1 Mortgage Loans as of the last day of the
related Collection Period and (b) the amount by which the aggregate Principal
Balance of the Group 1 Mortgage Loans as of the last day of the related
Collection Period exceeds the product of (y) 0.50% and (z) the aggregate
Principal Balance of the Group 1 Mortgage Loans on the Cut-off Date.
"Group 2 Basic Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the excess of (i) the Group 2
Principal Remittance Amount for such Distribution Date over (ii) the
Overcollateralization Release Amount, if any, for such Distribution Date and (b)
the Group 2 Principal Percentage.
"Group 2 Cap": As of any Distribution Date and the Class A-2 and Class
A-3 Certificates, a per annum rate, adjusted by multiplying such rate by a
fraction equal to 30 over the actual number of days in the related Interest
Accrual Period, equal to the Weighted Average Net Mortgage Interest Rate for the
Group 2 Mortgage Loans. For federal income tax purposes, the economic equivalent
of such rate shall be expressed as the weighted average of the REMIC 1
Remittance Rate on REMIC 1 Regular Interest LT2GRP, weighted on the basis of the
Uncertificated Balance of such REMIC 1 Regular Interest.
"Group 2 Interest Remittance Amount": As of any Distribution Date, the
sum, without duplication, of (i) all interest due and collected or advanced with
respect to the related Collection Period on the Group 2 Mortgage Loans received
by the Servicer on or prior to the Determination Date for such Distribution Date
(less the Servicing Fee, amounts available for reimbursement of Advances and
Servicing Advances pursuant to Section 3.05 and expenses reimbursable pursuant
to Section 6.03), (ii) all Compensating Interest paid by the Servicer on the
related Distribution Date with respect to such Mortgage Loans, (iii) the portion
of any payment in connection with any Principal Prepayment, substitution,
Purchase Price, Termination Price, Insurance Proceeds or Net Liquidation
Proceeds relating to interest with respect to such Mortgage Loans received
during the related Prepayment Period and (iv) the portion of any Reimbursement
Amount relating to interest with respect to such Mortgage Loans received during
the related Prepayment Period.
"Group 2 Maximum Rate Cap": With respect to any Distribution Date and
for the Class A-2 and Class A-3 Certificates, a per annum rate, adjusted by
multiplying such rate by a fraction equal to 30 over the actual number of days
in the related Interest Accrual Period, equal to the average of the Net Maximum
Mortgage Interest Rates of the Group 2 Mortgage Loans, weighted on the basis of
the Principal Balances of the Group 2 Mortgage Loans as of the first day of the
related Collection Period.
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"Group 2 Mortgage Loan": Each Mortgage Loan listed on Exhibit D-2
hereto. Each Group 2 Mortgage Loan had, as of the Cut-off Date, a Principal
Balance that may or may not conform to ▇▇▇▇▇▇ Mae guidelines.
"Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the product of (a) the sum of (i) the
Group 2 Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date and (b) the
Group 2 Principal Percentage.
"Group 2 Principal Percentage": With respect to any Distribution Date
and the Class A-2 and Class A-3 Certificates, the percentage equivalent to a
fraction, the numerator of which is the Group 2 Principal Remittance Amount for
such Distribution Date and the denominator of which is the Principal Remittance
Amount allocable to the Mortgage Loans for such Distribution Date.
"Group 2 Principal Remittance Amount": With respect to any
Distribution Date and the Group 1 Mortgage Loans, to the extent of funds
available therefor, the sum (less amounts available for reimbursement of
Advances and Servicing Advances pursuant to Section 3.05 and expenses
reimbursable pursuant to Section 6.03) of: (i) each payment of principal on a
Group 1 Mortgage Loan due during the related Collection Period and received by
the Servicer on or prior to the related Determination Date, and any Advances
with respect thereto, (ii) all full and partial Principal Prepayments of Group 1
Mortgage Loans received by the Servicer during the related Prepayment Period,
(iii) Insurance Proceeds and Net Liquidation Proceeds allocable to principal
actually collected by the Servicer during the related Prepayment Period with
respect to the Group 1 Mortgage Loans, (iv) the portion of the Purchase Price
allocable to principal of all repurchased Group 1 Mortgage Loans with respect to
such Prepayment Period, (v) any Substitution Adjustment Amounts received during
the related Prepayment Period with respect to Group 1 Mortgage Loans and (vi) on
the Distribution Date on which the Trust is to be terminated in accordance with
Section 10.01 hereof, that portion of the Termination Price in respect of
principal.
"Group 2 Senior Principal Distribution Amount": With respect to any
Distribution Date, the excess of (i) the aggregate Certificate Principal Balance
of the Class A-2 and Class A-3 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (a) the product of (y) approximately
62.00% and (z) the aggregate Principal Balance of the Group 2 Mortgage Loans as
of the last day of the related Collection Period and (b) the amount by which the
aggregate Principal Balance of the Group 2 Mortgage Loans as of the last day of
the related Collection Period exceeds the product of (y) 0.50% and (z) the
aggregate Principal Balance of the Group 2 Mortgage Loans on the Cut-off Date.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Servicer and
their respective Affiliates, (ii) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Servicer or
any Affiliate thereof, and (iii) is not connected with the Depositor or the
Servicer or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor or the Servicer or any Affiliate thereof merely
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because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor or the Servicer or any Affiliate thereof, as
the case may be.
"Independent Contractor": Either (i) any Person (other than the
Servicer) that would be an "independent contractor" with respect to the Trust
Fund within the meaning of Section 856(d)(3) of the Code if the Trust Fund were
a real estate investment trust (except that the ownership tests set forth in
that section shall be considered to be met by any Person that owns, directly or
indirectly, 35 percent or more of any Class of Certificates), so long as the
Trust Fund does not receive or derive any income from such Person and provided
that the relationship between such Person and the Trust Fund is at arm's length,
all within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Servicer) if the Trustee has received an Opinion of
Counsel, which Opinion of Counsel shall be an expense of the Trust Fund, to the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Index": With respect to each Adjustable-Rate Mortgage Loan and with
respect to each related Adjustment Date, the index as specified in the related
Mortgage Note.
"Initial Certificate Principal Balance": With respect to any
Certificate of a Class other than a Class P or Class R Certificate, the amount
designated "Initial Certificate Principal Balance" on the face thereof.
"Initial Overcollateralization Amount": $7,706,564.
"Insurance Proceeds": Proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds are
not to be applied to the restoration of the related Mortgaged Property or
released to the Mortgagor in accordance with the procedures that the Servicer
would follow in servicing mortgage loans held for its own account, subject to
the terms and conditions of the related Mortgage Note and Mortgage.
"Interest Accrual Period": With respect to any Distribution Date and
the Offered Certificates, the period from the preceding Distribution Date to the
day prior to the current Distribution Date (or, in the case of the first
Distribution Date, the period from the Closing Date through December 24, 2003),
or in the case of the REMIC 1 Regular Interest, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Interest Carry Forward Amount": For any Class of Certificates (other
than the Class CE, Class P and Class R Certificates) and any Distribution Date,
the sum of (a) the excess, if any, of the Accrued Certificate Interest and any
Interest Carry Forward Amount for the prior Distribution Date, over the amount
in respect of interest actually distributed on such Class on such prior
Distribution Date and (b) interest on such excess at the applicable Certificate
Interest Rate for the actual number of days elapsed on the basis of a 360-day
year since the prior Distribution Date.
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"Interest Percentage": With respect to any Class of Certificates and
any Distribution Date, the ratio (expressed as a decimal carried to six places)
of the Accrued Certificate Interest for such Class to the sum of the Accrued
Certificate Interest for all Classes, in each case with respect to such
Distribution Date, without regard to Relief Act Interest Shortfalls.
"Interest Remittance Amount": As of any Determination Date, the sum of
the Group 1 Interest Remittance Amount and the Group 2 Interest Remittance
Amount.
"Interim Funder": With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
"Investor": With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
"Late Collections": With respect to any Mortgage Loan, all amounts
received subsequent to the Determination Date immediately following any related
Collection Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent on a contractual basis for such Collection Period and not
previously recovered.
"LIBOR Business Day": Any day on which banks in London, England and
The City of New York are open and conducting transactions in foreign currency
and exchange.
"LIBOR Determination Date": With respect to the Offered Certificates,
(i) for the first Distribution Date, the second LIBOR Business Day preceding the
Closing Date and (ii) for each subsequent Distribution Date, the second LIBOR
Business Day prior to the immediately preceding Distribution Date.
"Liquidated Mortgage Loan": As to any Distribution Date, any Mortgage
Loan, including any Charged-Off Mortgage Loan, in respect of which the Servicer
has determined, in accordance with the servicing procedures specified herein, as
of the end of the related Prepayment Period, that all Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds which it expects to recover with
respect to the liquidation of the Mortgage Loan or disposition of the related
REO Property have been recovered.
"Liquidation Proceeds": The amount (other than amounts received in
respect of the rental of any REO Property prior to REO Disposition) received by
the Servicer in connection with (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation or (ii) the
liquidation of a defaulted Mortgage Loan by means of a trustee's sale,
foreclosure sale or otherwise.
"Liquidation Report": The report with respect to a Liquidated Mortgage
Loan in such form as is agreed to by the Servicer and the Trustee listing (i)
the sale price of the related Mortgaged Property or amount of the REO
Disposition, (ii) the amount of any Realized Loss (or gain) with respect to such
Liquidated Mortgage Loan, (iii) the expenses relating to the
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liquidation of such Liquidated Mortgage Loan and (iv) such other information as
is agreed to by the Servicer and the Trustee.
"Loan Group": Either of the Group 1 Mortgage Loans or Group 2 Mortgage
Loans.
"Losses": As defined in Section 9.03.
"Lost Note Affidavit": With respect to any Mortgage Loan as to which
the original Mortgage Note has been permanently lost or destroyed and has not
been replaced, an affidavit from the Seller certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with a copy of the
related Mortgage Note and indemnifying the Trust against any loss, cost or
liability resulting from the failure to deliver the original Mortgage Note) in
the form of Exhibit H hereto.
"Majority Certificateholders": The Holders of Certificates evidencing
at least 51% of the Voting Rights.
"Majority Class CE Certificateholders": The Holders of Class CE
Certificates evidencing at least a 51% Percentage Interest in the Class CE
Certificates.
"Marker Rate": With respect to the Class CE Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the Uncertificated REMIC Pass-Through Rates for REMIC 1 Regular Interest
LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1
Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest
LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1
Regular Interest LT1M6 and REMIC 1 Regular Interest LT1ZZ, (i) with the rate on
each such REMIC Regular Interest (other than REMIC 1 Regular Interest LT1ZZ)
subject to a cap equal to the Pass-Through Rate of its Corresponding Class for
the purposes of this calculation and (ii) with the rate on REMIC 1 Regular
Interest LT1ZZ subject to a cap of zero for the purpose of this calculation;
provided, however, that for this purpose, calculations of the Uncertificated
REMIC 1 Pass-Through Rate and the related caps with respect to each such REMIC
Regular Interest (other than REMIC 1 Regular Interest LT1ZZ) shall be multiplied
by a fraction, the numerator of which is the actual number of days in the
Interest Accrual Period and the denominator of which is 30.
"Maximum LT1ZZ Uncertificated Accrued Interest Deferral Amount": With
respect to any Distribution Date, the excess of (a) accrued interest at the
Uncertificated REMIC 1 Pass-Through Rate applicable to REMIC 1 Regular Interest
LT1ZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC 1 Regular Interest LT1ZZ minus the REMIC 1
Overcollateralized Amount, in each case for such Distribution Date, over (b)
Uncertificated Accrued Interest on REMIC 1 Regular Interest LT1A1, REMIC 1
Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest
LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1
Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5 and REMIC 1 Regular
Interest LT1M6 each subject to a cap equal to the Pass-Through Rate of the
related Corresponding Class for the purpose of this calculation; provided,
however, that for this purpose, calculations of the Uncertificated REMIC 1
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Pass-Through Rate and the related caps with respect to Uncertificated Accrued
Interest on REMIC 1 Regular Interest LT1A1, REMIC 1 Regular Interest LT1A2,
REMIC 1 Regular Interest LT1A3,, REMIC 1 Regular Interest LT1M1, REMIC 1 Regular
Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4
and REMIC 1 Regular Interest LT1M5 shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Accrual Period and the
denominator of which is 30.
"Maximum Mortgage Interest Rate": With respect to each Adjustable-Rate
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
maximum Mortgage Interest Rate thereunder.
"MERS": Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor to it.
"MERS Designated Mortgage Loan": Mortgage Loans for which (a) the
Originator or Seller has designated or will designate MERS as, and has taken or
will take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for the Originator or Seller, in accordance with MERS
Procedures Manual and (b) the Seller or the Servicer has designated or will
designate the Trust as the Investor on the MERS(R) System.
"MERS Procedures Manual": The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
"MERS(R) System": MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
"Minimum Mortgage Interest Rate": With respect to each Adjustable-Rate
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
minimum Mortgage Interest Rate thereunder.
"Monthly Excess Cashflow Amount": The sum of the Monthly Excess
Interest Amount, the Overcollateralization Release Amount and (without
duplication) any portion of the Principal Distribution Amount remaining after
principal distributions on the Offered Certificates.
"Monthly Excess Interest Amount": With respect to each Distribution
Date, the amount, if any, by which the Interest Remittance Amount for such
Distribution Date exceeds the aggregate amount distributed on such Distribution
Date pursuant to paragraphs (i) through (xi) under Section 4.01.
"Monthly Form 8-K": As defined in Section 3.31(a) hereof.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan which is payable
by the related Mortgagor from time to time under the related Mortgage Note,
determined: (a) after giving effect to (i) any Deficient Valuation and/or Debt
Service Reduction with respect to such Mortgage Loan and (ii) any reduction in
the amount of interest collectible from the related Mortgagor pursuant to the
Relief Act or similar state laws; (b) without giving effect to any
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extension granted or agreed to by the Servicer pursuant to Section 3.01; and (c)
on the assumption that all other amounts, if any, due under such Mortgage Loan
are paid when due.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., and its successors, and if
such company shall for any reason no longer perform the functions of a
securities rating agency, "Moody's" shall be deemed to refer to any other
"nationally recognized statistical rating organization" as set forth on the most
current list of such organizations released by the Securities and Exchange
Commission.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first or second lien on, or first or second priority security interest in, a
Mortgaged Property securing a Mortgage Note.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Interest Rate": With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note, which rate (i) in
the case of each Fixed-Rate Mortgage Loan shall remain constant at the rate set
forth in the applicable Mortgage Loan Schedule as the Mortgage Interest Rate in
effect immediately following the Cut-off Date and (ii) in the case of each
Adjustable-Rate Mortgage Loan (A) as of any date of determination until the
first Adjustment Date following the Cut-off Date shall be the rate set forth in
the applicable Mortgage Loan Schedule as the Mortgage Interest Rate in effect
immediately following the Cut-off Date and (B) as of any date of determination
thereafter shall be the rate as adjusted on the most recent Adjustment Date, to
equal the sum, rounded as provided in the Mortgage Note, of the Index,
determined as set forth in the related Mortgage Note, plus the related Gross
Margin subject to the limitations set forth in the related Mortgage Note. With
respect to each Mortgage Loan that becomes an REO Property, as of any date of
determination, the annual rate determined in accordance with the immediately
preceding sentence as of the date such Mortgage Loan became an REO Property.
"Mortgage Loan": Each mortgage loan transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) as from time to time held as
a part of the Trust Fund, the Mortgage Loans so held being identified in the
Mortgage Loan Schedules.
"Mortgage Loan Purchase Agreement": The agreement between the Seller
and the Depositor, dated as of November 25, 2003, regarding the transfer of the
Mortgage Loans by the Seller to or at the direction of the Depositor.
"Mortgage Loan Schedule": As of any date with respect to the Mortgage
Loans, the lists of such Mortgage Loans included in the Trust Fund on such date,
separately identifying the Group 1 Mortgage Loans and the Group 2 Mortgage
Loans, attached hereto as Exhibits D-1 and D-2, respectively. The Mortgage Loan
Schedules shall set forth the following information with respect to each
Mortgage Loan:
(1) the Mortgage Loan identifying number;
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(2) the state and zip code of the Mortgaged Property;
(3) the type of Residential Dwelling constituting the Mortgaged Property;
(4) the occupancy status of the Mortgaged Property at origination;
(5) the original months to maturity;
(6) the date of origination;
(7) the first payment date;
(8) the stated maturity date;
(9) the stated remaining months to maturity;
(10) the original principal amount of the Mortgage Loan;
(11) the Principal Balance of each Mortgage Loan as of the Cut-off Date;
(12) the initial Mortgage Interest Rate;
(13) the Mortgage Interest Rate of the Mortgage Loan as of the Cut-off
Date;
(14) the current principal and interest payment of the Mortgage Loan as of
the Cut-off Date;
(15) the contractual interest paid to date of the Mortgage Loan;
(16) the Combined Loan-to-Value Ratio at origination and as of the Cut-off
Date;
(17) a code indicating the loan performance status of the Mortgage Loan as
of the Cut-off Date;
(18) for each Adjustable-Rate Mortgage Loan, a code indicating the Index
that is associated with such Mortgage Loan;
(19) for each Adjustable-Rate Mortgage Loan, the Gross Margin;
(20) for each Adjustable-Rate Mortgage Loan, the Periodic Rate Cap;
(21) for each Adjustable-Rate Mortgage Loan, the Minimum Mortgage Interest
Rate;
(22) for each Adjustable-Rate Mortgage Loan, the Maximum Mortgage Interest
Rate;
(23) a code indicating whether the Mortgage Loan has a Prepayment Charge
and the type of Prepayment Charge and the term;
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(24) for each Adjustable-Rate Mortgage Loan, the first Adjustment Date
immediately following the Cut-off Date;
(25) for each Adjustable-Rate Mortgage Loan, the rate adjustment frequency;
(26) for each Adjustable-Rate Mortgage Loan, the payment adjustment
frequency;
(27) the MERS identification number;
(28) a code indicating whether the Mortgage Loan is a Fixed-Rate Mortgage
Loan or an Adjustable-Rate Mortgage Loan;
(29) the purpose of the Mortgage Loan; and
(30) a code indicating whether the Mortgage Loan is a second lien.
The Mortgage Loan Schedules shall set forth the following information,
as of the Cut-off Date, with respect to the Mortgage Loans in the aggregate, for
the Group 1 Mortgage Loans and for the Group 2 Mortgage Loans: (1) the number of
Mortgage Loans; (2) the current Principal Balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average maturity of the Mortgage Loans. The Mortgage Loan Schedules
shall be amended from time to time in accordance with the provisions of this
Agreement. With respect to any Eligible Substitute Mortgage Loan, Cut-off Date
shall refer to the applicable date of substitution.
"Mortgage Note": The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on Exhibits
D-1 and D-2 from time to time, and any REO Properties acquired in respect
thereof.
"Mortgaged Property": The underlying property securing a Mortgage
Loan, including any REO Property, consisting of an Estate in Real Property
improved by a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": With respect to any Liquidated Mortgage
Loan or any other disposition of related Mortgaged Property (including REO
Property) the related Liquidation Proceeds net of unreimbursed Advances,
unreimbursed Servicing Advances, Servicing Fees and any other accrued and unpaid
servicing fees received and retained in connection with the liquidation of such
Mortgage Loan or Mortgaged Property.
"Net Maximum Mortgage Interest Rate": With respect to any
Adjustable-Rate Mortgage Loan, the applicable Maximum Mortgage Interest Rate and
for each Fixed-Rate Mortgage Loan, the Mortgage Interest Rate for such Mortgage
Loan, in each case minus the Expense Fee Rate.
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"Net Mortgage Interest Rate": With respect to any Mortgage Loan, the
Mortgage Interest Rate borne by such Mortgage Loan minus the Expense Fee Rate.
"New Lease": Any lease of REO Property entered into on behalf of the
Trust, including any lease renewed or extended on behalf of the Trust if the
Trust has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Advance or Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan that, in the good
faith business judgment of the Servicer, will not or, in the case of a proposed
Advance or Servicing Advance, would not be ultimately recoverable from Late
Collections on such Mortgage Loan as provided herein.
"Notional Amount": With respect to the Class CE Certificates,
immediately prior to any Distribution Date, the aggregate of the Uncertificated
Principal Balances of the REMIC 1 Regular Interests.
"Offered Certificates": The Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6 Certificates.
"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a vice president (however
denominated) or a principal, and by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of the Servicer, the Seller or the
Depositor, as applicable.
"One-Month LIBOR": With respect to each Interest Accrual Period, the
rate determined by the Trustee on the related LIBOR Determination Date on the
basis of the offered rate for one-month United States dollar deposits, as such
rate appears on the Telerate Page 3750, as of 11:00 a.m. (London time) on such
LIBOR Determination Date. If no such quotations are available on an LIBOR
Determination Date, One-Month LIBOR for the related Interest Accrual Period will
be established by the Trustee as follows:
(i) If on such LIBOR Determination Date two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related Interest
Accrual Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of 0.001%);
(ii) If on such LIBOR Determination Date fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the arithmetic mean of the rates quoted by
one or more major banks in New York City, selected by the Trustee after
consultation with the Depositor, as of 11:00 A.M., New York City time, on
such date for loans in U.S. Dollars to leading European banks for a period
of one month in amounts approximately equal to the aggregate Certificate
Principal Balance of the Offered Certificates; and
(iii) If no such quotations can be obtained, One-Month LIBOR for the
related Interest Accrual Period shall be One-Month LIBOR for the prior
Distribution Date.
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The establishment of One-Month LIBOR on each LIBOR Determination Date by
the Trustee and the Trustee's calculation of the rate of interest applicable to
the Offered Certificates for the related Interest Accrual Period shall (in the
absence of manifest error) be final and binding.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be a salaried counsel for the Depositor or the Servicer except that
any opinion of counsel relating to (a) the qualification of any REMIC as a REMIC
or (b) compliance with the REMIC Provisions must be an opinion of Independent
counsel.
"Optional Termination Date": The first Distribution Date on which the
Majority Class CE Certificateholders or the Servicer may opt to terminate the
Mortgage Pool pursuant to Section 10.01.
"Original Class Certificate Principal Balance": With respect to each
Class of Certificates, the Certificate Principal Balance thereof on the Closing
Date, as set forth opposite such Class in the Preliminary Statement, except with
respect to the Class P and R Certificates, which have an Original Class
Certificate Principal Balance of zero.
"Originator": WMC Mortgage Corp. and its successors.
"Originator Mortgage Loan Purchase Agreement": The Flow Sale and
Interim Servicing Agreement, dated as of August 1, 2003, by and between the
Seller, as purchaser, and the Originator, as seller, as amended and assigned by
the Assignment, Assumption and Recognition Agreement.
"Originator Prepayment Charge Payment Amount": The amount payable by
the Originator pursuant to Section 4.21(b) of the Originator Mortgage Loan
Purchase Agreement in respect of certain Prepayment Charges that are not
collected from the Mortgagor, which shall not be part of any REMIC created
hereunder.
"Overcollateralization Amount": As of any Distribution Date, the
excess, if any, of (x) the Pool Balance as of the last day of the related
Collection Period over (y) the aggregate Certificate Principal Balances of all
Classes of Offered Certificates (after taking into account all distributions of
principal on such Distribution Date).
"Overcollateralization Deficiency": As of any Distribution Date, the
excess, if any, of (x) the Targeted Overcollateralization Amount for such
Distribution Date over (y) the Overcollateralization Amount for such
Distribution Date, calculated for this purpose after taking into account the
reduction on such Distribution Date of the Certificate Principal Balances of all
Classes of Offered Certificates resulting from the distribution of the Principal
Distribution Amount (but not the Extra Principal Distribution Amount) on such
Distribution Date, but prior to taking into account any Applied Realized Loss
Amounts on such Distribution Date.
"Overcollateralization Release Amount": With respect to any
Distribution Date after the Stepdown Date on which a Trigger Event is not in
effect, the excess, if any, of (i) the Overcollateralization Amount for such
Distribution Date, assuming that 100% of the Principal Remittance Amount is
applied as a principal payment on the Offered Certificates on such
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Distribution Date, over (ii) the Targeted Overcollateralization Amount for such
Distribution Date. With respect to any Distribution Date on which a Trigger
Event is in effect, the Overcollateralization Release Amount will be zero.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to the Offered Certificates, any of
the Class A-1 Pass-Through Rate, the Class A-2 Pass-Through Rate, the Class A-3
Pass-Through Rate, the Class M-1 Pass-Through Rate, the Class M-2 Pass-Through
Rate, the Class M-3 Pass-Through Rate, the Class M-4 Pass-Through Rate, the
Class M-5 Pass-Through Rate and the Class M-6 Pass-Through Rate.
With respect to the Class CE Certificates and any Distribution Date, a
per annum rate equal to the percentage equivalent of a fraction, the numerator
of which is the sum of the amounts calculated pursuant to clauses (A) through
(K) below, and the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular Interest
LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1
Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest
LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1
Regular Interest LT1M6 and REMIC 1 Regular Interest LT1ZZ. For purposes of
calculating the Pass-Through Rate for the Class CE Certificates, the numerator
is equal to the sum of the following components:
(A) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1AA minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1AA;
(B) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1A1 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1A1;
(C) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1A2 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1A2;
(D) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1A3 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1A3;
(E) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M1 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1M1;
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(F) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M2 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1M2;
(G) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M3 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1M3;
(H) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M4 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1M4;
(I) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M5 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1M5;
(J) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1M6 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1M6; and
(K) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1 Regular
Interest LT1ZZ minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 1 Regular Interest
LT1ZZ.
"Paying Agent": Any paying agent appointed pursuant to Section 5.05.
"Percentage Interest": With respect to any Certificate (other than a
Class CE, Class P or Class R Certificate), a fraction, expressed as a
percentage, the numerator of which is the Initial Certificate Principal Balance,
as the case may be, represented by such Certificate and the denominator of which
is the Original Class Certificate Principal Balance of the related Class. With
respect to a Class CE or Class P Certificate, the portion of the Class evidenced
thereby, expressed as a percentage, as stated on the face of such Certificate;
provided, however, that the sum of all such percentages for each such Class
totals 100%. With respect to the Class R Certificate, 100%.
"Periodic Rate Cap": With respect to each Adjustable-Rate Mortgage
Loan and any Adjustment Date therefor, the fixed percentage set forth in the
related Mortgage Note, which is the maximum amount by which the Mortgage
Interest Rate for such Mortgage Loan may increase or decrease (without regard to
the Maximum Mortgage Interest Rate or the Minimum Mortgage Interest Rate) on
such Adjustment Date from the Mortgage Interest Rate in effect immediately prior
to such Adjustment Date.
"Permitted Transferee": Any transferee of a Class R Certificate other
than a Disqualified Organization, a non-U.S. Person or a U.S. Person with
respect to whom income on the Class R Certificate is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other U.S. Person.
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"Person": Any individual, corporation, partnership, joint venture,
association, joint stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pool Balance": As of any date of determination, the aggregate
Principal Balance of the Mortgage Loans.
"Pool Cap": As of any Distribution Date and for the Class M
Certificates, a per annum rate, adjusted by multiplying such rate by a fraction
equal to 30 over the actual number of days in the related Interest Accrual
Period, equal to the Weighted Average Net Mortgage Interest Rates for the Group
1 Mortgage Loans and the Group 2 Mortgage Loans, weighted proportionally between
the two loan groups in the proportion that (i) the difference between (a) the
aggregate Principal Balance of the Group 1 Mortgage Loans as of the beginning of
such Collection Period and (b) the Certificate Principal Balance of the Class
A-1 Certificates before such Distribution Date, bears to (ii) the difference
between (a) the aggregate Principal Balance of the Group 2 Mortgage Loans as of
the beginning of such Collection Period and (b) the Certificate Principal
Balance of the Class A-2 and Class A-3 Certificates before such Distribution
Date. For federal income tax purposes, the economic equivalent of such rate
shall be expressed as the weighted average of the REMIC 1 Remittance Rate on (a)
REMIC 1 Regular Interest LT1SUB, subject to a cap and floor equal to the
Weighted Average Net Mortgage Interest Rates of the Group 1 Mortgage Loans and
(b) REMIC 1 Regular Interest LT2SUB, subject to a cap and floor equal to the
Weighted Average Net Mortgage Interest Rates of the Group 2 Mortgage Loans,
weighted on the basis of the Uncertificated Balance of such REMIC 1 Regular
Interest.
"Pool Maximum Rate Cap": With respect to any Distribution Date and for
the Class M Certificates, a per annum rate (not less than zero), adjusted by
multiplying such rate by a fraction equal to 30 over the actual number of days
in the related Interest Accrual Period, equal to the average of the Net Maximum
Mortgage Interest Rates for the Group 1 Mortgage Loans and the Group 2 Mortgage
Loans, weighted proportionally between the two loan groups in the proportion
that (i) the difference between (a) the aggregate Principal Balance of the Group
1 Mortgage Loans as of the beginning of such Collection Period and (b) the
Certificate Principal Balance of the Class A-1 Certificates before such
Distribution Date, bears to (ii) the difference between (a) the aggregate
Principal Balance of the Group 2 Mortgage Loans as of the beginning of such
Collection Period and (b) the Certificate Principal Balance of the Class A-2 and
Class A-3 Certificates before such Distribution Date.
"Prepayment Charge": With respect to any Prepayment Period, any
prepayment premium, penalty or charge collected by the Servicer from a Mortgagor
in connection with any voluntary Principal Prepayment in full pursuant to the
terms of the related Mortgage Note as from time to time held as a part of the
Trust Fund, the Prepayment Charges so held being identified in the Mortgage Loan
Schedules (other than any Originator Prepayment Charge Payment Amount or
Servicer Prepayment Charge Payment Amount), which shall not be a part of any
REMIC hereunder.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a Principal Prepayment in
full during the prior calendar month that was applied by the Servicer to reduce
the outstanding principal balance of such loan
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on a date preceding the related Due Date, an amount equal to interest at the
applicable Mortgage Interest Rate (net of the Servicing Fee Rate) on the amount
of such Principal Prepayment for the number of days commencing on the date on
which the Principal Prepayment is applied and ending on the last day of the
related Prepayment Period.
"Prepayment Period": With respect to any Distribution Date, the
calendar month preceding the calendar month in which such Distribution Date
occurs.
"Principal Balance": As to any Mortgage Loan and any day, other than a
Liquidated Mortgage Loan, the related Cut-off Date Principal Balance, minus the
sum of (i) all collections and other amounts credited against the principal
balance of any such Mortgage Loan, (ii) the principal portion of Advances, (iii)
any Deficient Valuation and (iv) any principal reduction resulting from a
Servicer Modification. For purposes of this definition, a Liquidated Mortgage
Loan shall be deemed to have a Principal Balance equal to the Principal Balance
of the related Mortgage Loan as of the final recovery of related Liquidation
Proceeds and a Principal Balance of zero thereafter. As to any REO Property and
any day, the Principal Balance of the related Mortgage Loan immediately prior to
such Mortgage Loan becoming REO Property minus any REO Principal Amortization
received with respect thereto on or prior to such day.
"Principal Distribution Amount": As to any Distribution Date, the sum
of the Group 1 Principal Distribution Amount and the Group 2 Principal
Distribution Amount.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing the full amount
of scheduled interest due on any Due Date in any month or months subsequent to
the month of prepayment.
"Principal Remittance Amount": With respect to any Distribution Date,
the sum of the Group 1 Principal Remittance Amount and the Group 2 Principal
Remittance Amount.
"Private Certificates": Any of the Class CE, Class P and Class R
Certificates.
"Prospectus Supplement": That certain Prospectus Supplement dated
November 21, 2003 relating to the public offering of the Offered Certificates.
"Purchase Price": With respect to any Mortgage Loan or REO Property to
be purchased pursuant to or as contemplated by Section 2.03 or 10.01, an amount
equal to the sum of (i) 100% of the Principal Balance thereof as of the date of
purchase (or such other price as provided in Section 10.01), (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Principal Balance at the
applicable Mortgage Interest Rate in effect from time to time from the Due Date
as to which interest was last covered by a payment by the Mortgagor or an
Advance by the Servicer, which payment or Advance had as of the date of purchase
been distributed pursuant to Section 4.01, through the end of the calendar month
in which the purchase is to be effected, and (y) an REO Property, its fair
market value, determined in good faith by the Servicer, (iii) any unreimbursed
Servicing Advances and Advances and any unpaid Servicing Fees allocable to such
Mortgage Loan or REO Property, (iv) any amounts previously withdrawn from the
Collection Account in respect of such Mortgage Loan or REO Property pursuant to
Section 3.13, (v) in the case of a Mortgage Loan required to be purchased
pursuant to Section 2.03, expenses
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reasonably incurred or to be incurred by the Servicer or the Trustee in respect
of the breach or defect giving rise to the purchase obligation and (vi) in the
case of a Mortgage Loan required to be purchased by the Originator in accordance
with Section 2.03 due to a breach of the Originator's representation in Section
3.02(i) of the Originator Mortgage Loan Purchase Agreement, all costs and
damages incurred by the Trust in connection with any violation by such Mortgage
Loan of any predatory or abusive lending law.
"Qualified Insurer": Any insurance company acceptable to ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac.
"Rating Agency or Rating Agencies": Fitch, ▇▇▇▇▇'▇ and S&P, or their
respective successors. If such agencies or their successors are no longer in
existence, "Rating Agencies" shall be such nationally recognized statistical
rating organizations as set forth on the most current list of such organizations
released by the Securities and Exchange Commission and designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Servicer.
"Realized Loss": With respect to a Liquidated Mortgage Loan, the
amount by which the remaining unpaid principal balance of the Mortgage Loan
exceeds the amount of Net Liquidation Proceeds applied to the principal balance
of the related Mortgage Loan. With respect to any Mortgage Loan, a Deficient
Valuation or a reduction in the Principal Balance thereof resulting from a
Servicer Modification.
"Realized Loss Amortization Amount": Any of the Class M-1 Realized
Loss Amortization Amount, the Class M-2 Realized Loss Amortization Amount, the
Class M-3 Realized Loss Amortization Amount, the Class M-4 Realized Loss
Amortization Amount, the Class M-5 Realized Loss Amortization Amount and the
Class M-6 Realized Loss Amortization Amount.
"Record Date": With respect to all of the Certificates (other than the
Private Certificates), the Business Day immediately preceding such Distribution
Date; provided, however, that if any such Certificate becomes a Definitive
Certificate, the Record Date for such Certificate shall be the last Business Day
of the month immediately preceding the month in which the related Distribution
Date occurs. With respect to the Private Certificates, the last Business Day of
the month immediately preceding the month in which the related Distribution Date
occurs.
"Reference Banks": Those banks (i) with an established place of
business in London, England, (ii) not controlling, under the control of or under
common control with the Depositor or the Trustee, (iii) whose quotations appear
on the Telerate Page 3750 on the relevant LIBOR Determination Date and (iv)
which have been designated as such by the Trustee; provided, however, that if
fewer than two of such banks provide a One-Month LIBOR rate, then any leading
banks selected by the Trustee which are engaged in transactions in United States
dollar deposits in the international Eurocurrency market.
"Regular Certificate": Any of the Offered Certificates, the Class CE
Certificates and the Class P Certificates.
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"Reimbursement Amount": As defined in Section 2.03.
"Related Documents": With respect to any Mortgage Loan, the related
Mortgage Notes, Mortgages and other related documents.
"Relief Act": The Soldiers' and Sailors Civil Relief Act of 1940, as
amended.
"Relief Act Interest Shortfall": With respect to any Distribution
Date, for any Mortgage Loan with respect to which there has been a reduction in
the amount of interest collectible thereon for the most recently ended
Collection Period as a result of the application of the Relief Act or similar
state or local laws, the amount by which (i) interest collectible on such
Mortgage Loan during such Collection Period is less than (ii) one month's
interest on the Principal Balance of such Mortgage Loan at the Mortgage Interest
Rate for such Mortgage Loan before giving effect to the application of the
Relief Act or similar state or local laws.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC 1 Interest Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50% of the sum of
the aggregate Principal Balance of the Mortgage Loans and related REO Properties
then outstanding and (ii) the Uncertificated REMIC 1 Pass-Through Rate for REMIC
1 Regular Interest LT1AA minus the Marker Rate, divided by (b) 12.
"REMIC 1 Marker Allocation Percentage": 50% of any amount payable from
or loss attributable to the Mortgage Loans, which shall be allocated to REMIC 1
Regular Interest LT1AA, REMIC 1 Regular Interest LT1A1, REMIC 1 Regular Interest
LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest LT1M1, REMIC 1
Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest
LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1 Regular Interest LT1M6 and REMIC
1 Regular Interest LT1ZZ.
"REMIC 1 Overcollateralization Target Amount": 0.50% of the Targeted
Overcollateralization Amount.
"REMIC 1 Overcollateralized Amount": With respect to any date of
determination, (i) 0.50% of the aggregate Uncertificated Principal Balances of
the REMIC 1 Regular Interests minus (ii) the aggregate of the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1A1, REMIC 1 Regular Interest
LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest LT1M1, REMIC 1
Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest
LT1M4, REMIC 1 Regular Interest LT1M5 and REMIC 1 Regular Interest LT1M6, in
each case as of such date of determination.
"REMIC 1 Principal Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50% of the
aggregate Principal Balance of the Mortgage Loans and related REO Properties
then outstanding and (ii) 1 minus a fraction, the numerator of which is two
times the aggregate of the Uncertificated Principal Balances of REMIC 1 Regular
Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3,
REMIC 1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2,
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REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular
Interest LT1M5 and REMIC 1 Regular Interest LT1M6 and the denominator of which
is the aggregate of the Uncertificated Principal Balances of REMIC 1 Regular
Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3,
REMIC 1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular
Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest LT1M5,
REMIC 1 Regular Interest LT1M6 and REMIC 1 Regular Interest LT1ZZ.
"REMIC 1 Regular Interest LT1AA": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1AA shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1A1": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1A1 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1A2": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1A2 shall accrue
interest at the related Uncertificated REMIC 1 Pass- Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance asset forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1A3": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1A3 shall accrue
interest at the related Uncertificated REMIC 1 Pass- Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance asset forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1M1": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1M1 shall accrue
interest at the related Uncertificated REMIC 1 Pass- Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
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"REMIC 1 Regular Interest LT1M2": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1M2 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1M3": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1M3 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1M4": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1M4 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1M5": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1M5 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1M6": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1M6 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1SUB": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1SUB
shall accrue interest at the related Uncertificated REMIC 1 Pass-Through Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
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"REMIC 1 Regular Interest LT1GRP": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1GRP
shall accrue interest at the related Uncertificated REMIC 1 Pass-Through Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
"REMIC 1 Regular Interest LT2SUB": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular Interest LT2SUB
shall accrue interest at the related Uncertificated REMIC 1 Pass-Through Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
"REMIC 1 Regular Interest LT2GRP": One of the separate
non-certificated beneficial ownership interests in REMIC 1 issued hereunder and
designated as a Regular Interest in REMIC 1. REMIC 1 Regular Interest LT2GRP
shall accrue interest at the related Uncertificated REMIC 1 Pass-Through Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
"REMIC 1 Regular Interest LT1XX": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1XX shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT1ZZ": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
Regular Interest in REMIC 1. REMIC 1 Regular Interest LT1ZZ shall accrue
interest at the related Uncertificated REMIC 1 Pass- Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interests": REMIC 1 Regular Interest LT1AA, REMIC 1
Regular Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest
LT1A3, REMIC 1 Regular Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1
Regular Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest
LT1M5, REMIC 1 Regular Interest LT1M6, REMIC 1 Regular Interest LT1SUB, REMIC 1
Regular Interest LT1GRP, REMIC 1 Regular Interest LT2SUB, REMIC 1 Regular
Interest LT2GRP, REMIC 1 Regular Interest LT1XX and REMIC 1 Regular Interest
LT1ZZ.
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"REMIC 1 Sub WAC Allocation Percentage": 50% of any amount payable or
loss attributable from the Mortgage Loans, which shall be allocated to REMIC 1
Regular Interest LT1SUB, REMIC 1 Regular Interest LT1GRP, REMIC 1 Regular
Interest LT2SUB, REMIC 1 Regular Interest LT2GRP and REMIC 1 Regular Interest
LT1XX.
"REMIC 1 Subordinated Balance Ratio": The ratio among the
Uncertificated Principal Balances of each REMIC 1 Regular Interest ending with
the designation "SUB," equal to the ratio among, with respect to each such REMIC
1 Regular Interest, the excess of (x) the aggregate Principal Balance of the
Mortgage Loans in the related Loan Group over (y) the current Certificate
Principal Amount of the Class A Certificates in the related Loan Group.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
"REMIC Regular Interest": As defined in the Preliminary Statement.
"Remittance Report": A report prepared by the Servicer and delivered
to the Trustee pursuant to Section 4.07, containing the information attached
hereto as Exhibit M.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Disposition": The sale or other disposition of an REO Property on
behalf of the Trust.
"REO Imputed Interest": As to any REO Property, for any Collection
Period, an amount equivalent to interest (at the Net Mortgage Interest Rate that
would have been applicable to the related Mortgage Loan had it been outstanding)
for such Collection Period on the unpaid Principal Balance of the Mortgage Loan
as of the date of acquisition.
"REO Principal Amortization": With respect to any REO Property, for
any calendar month, the aggregate of all amounts received in respect of such REO
Property during such calendar month, whether in the form of rental income, sale
proceeds (including, without limitation, that portion of the Termination Price
paid in connection with a purchase of all of the Mortgage Loans and REO
Properties pursuant to Section 10.01 that is allocable to such REO Property) or
otherwise, net of any portion of such amounts (i) payable pursuant to Section
3.13 in respect of the proper operation, management and maintenance of such REO
Property or (ii) payable or reimbursable to the Servicer pursuant to Section
3.13 for unpaid Servicing Fees in respect of the related Mortgage Loan and
unreimbursed Servicing Advances and Advances in respect of such REO Property or
the related Mortgage Loan.
"REO Property": A Mortgaged Property acquired by the Servicer on
behalf of the Trust through foreclosure or deed-in-lieu of foreclosure, as
described in Section 3.13.
"Request for Release": A release signed by a Servicing Officer, in the
form of Exhibit E attached hereto.
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"Reserve Account": The trust account created and maintained by the
Trustee pursuant to Section 3.04(g) which shall be entitled "Reserve Account,
JPMorgan Chase Bank, as Trustee, in trust for registered Holders of ABFC
2003-WMC1 Trust, ABFC Asset-Backed Certificates, Series 2003-WMC1" and which
must be an Eligible Account. Amounts on deposit in the Reserve Account shall not
be invested. The Reserve Account shall not be an asset of any REMIC formed under
this Agreement.
"Residential Dwelling": Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a ▇▇▇▇▇▇ ▇▇▇ eligible condominium project, (iv) a
manufactured home, or (v) a detached one-family dwelling in a planned unit
development, none of which is a co-operative or mobile home.
"Residual Interest": The sole Class of "residual interests" in each
REMIC within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Division (or any successor thereto),
including any Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and in each case having direct responsibility for the
administration of this Agreement.
"S&P": Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., and its successors, and if such company shall for any reason no longer
perform the functions of a securities rating agency, "S&P" shall be deemed to
refer to any other "nationally recognized statistical rating organization" as
set forth on the most current list of such organizations released by the
Securities and Exchange Commission.
"Seller": Bank of America, N.A., or its successor in interest, in its
capacity as seller under the Mortgage Loan Purchase Agreement.
"Senior Certificates": The Class A-1, Class A-2 and Class A-3
Certificates.
"Senior Enhancement Percentage": For any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Certificate
Principal Balances of the Subordinated Certificates and (ii) the
Overcollateralization Amount, in each case after taking into account the
distribution of the Principal Distribution Amount on such Distribution Date by
(y) the Pool Balance as of the last day of the related Collection Period.
"Senior Principal Distribution Amount": For any Distribution Date (i)
before the Stepdown Date or as to which a Trigger Event is in effect, the lesser
of (x) the Principal Distribution Amount and (y) the sum of the Certificate
Principal Balances of the Class A Certificates immediately prior to such
Distribution Date and (ii) on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of the sum of the Group 1 Senior
Principal Distribution Amount and the Group 2 Senior Principal Distribution
Amount.
"Senior Specified Enhancement Percentage": On any date of
determination thereof, 38.00%.
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"Servicer": HomEq Servicing Corporation, a New Jersey corporation, or
any successor servicer appointed as herein provided, in its capacity as Servicer
hereunder.
"Servicer Event of Termination": One or more of the events described
in Section 7.01.
"Servicer Modification": A modification to the terms of a Mortgage
Loan, in accordance with the terms of Section 3.01, as to which the Mortgagor is
in default or as to which, in the judgment of the Servicer, default is
reasonably foreseeable.
"Servicer Prepayment Charge Payment Amount": The amount payable by the
Servicer in respect of any waived Prepayment Charges pursuant to Section 3.01,
which amount shall be equal to the difference between the amount of Prepayment
Charge due by a Mortgagor before any waiver and the actual amount of the
Prepayment Charge that was paid by the Mortgagor. which amounts shall not be a
part of any REMIC formed hereunder.
"Servicer Remittance Date": With respect to any Distribution Date, the
18th day of the calendar month in which such Distribution Date occurs or, if
such 18th day is not a Business Day, the Business Day immediately preceding such
18th day.
"Servicer Termination Trigger": With respect to any Distribution Date,
if the Cumulative Loss Percentage, with respect to the Mortgage Loans serviced
by the Servicer, exceeds the applicable cumulative loss percentages set forth
with respect to such Distribution Date:
CUMULATIVE LOSS
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
December 2006 through November 2007 4.00%
December 2007 through November 2008 6.25%
December 2008 through November 2009 8.25%
December 2009 through November 2010 9.25%
December 2010 and thereafter 9.75%
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred by the Servicer (including reasonable
attorneys' fees and disbursements) in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration, inspection and protection of the Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the REO Property and (iv) compliance with the
obligations under Section 3.08.
"Servicing Fee": With respect to each Mortgage Loan (including each
REO Property) and for any calendar month, an amount equal to one month's
interest (or in the event of any payment of interest which accompanies a
Principal Prepayment in full made by the
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Mortgagor during such calendar month, interest for the number of days covered by
such payment of interest) at the Servicing Fee Rate on the same principal amount
on which interest on such Mortgage Loan accrues for such calendar month. The
Servicing Fee is payable solely from the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds and proceeds received with respect to REO Properties, to
the extent permitted by Section 3.05) of each Scheduled Payment collected by the
Servicer, or as otherwise provided under Section 3.05.
"Servicing Fee Rate": With respect to each Mortgage Loan, 0.50% per
annum.
"Servicing Officer": Any officer of the Servicer involved in, or
responsible for, the administration and servicing of Mortgage Loans, whose name
and specimen signature appear on a list of servicing officers furnished by the
Servicer to the Trustee and the Depositor on the Closing Date, as such list may
from time to time be amended.
"Servicing Standard": The standards set forth in Section 3.01.
"Startup Day": As defined in Section 9.01(b) hereof.
"Stayed Funds": Any payment required to be made under the terms of the
Certificates and this Agreement but which is not remitted by the Servicer
because the Servicer is the subject of a proceeding under the Bankruptcy Code
and the making of such remittance is prohibited by Section 362 of the Bankruptcy
Code.
"Stepdown Date": The earlier to occur of (i) the Distribution Date on
which the aggregate Certificate Principal Balance of the Class A Certificates is
reduced to zero and (ii) the later to occur of (x) the Distribution Date in
December 2006 and (y) the Distribution Date on which the Senior Enhancement
Percentage (after taking into account distributions of principal on such
Distribution Date) is greater than or equal to the Senior Specified Enhancement
Percentage.
"Subordinated Certificates": The Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class CE and Class R Certificates.
"Substitution Adjustment Amount": As defined in Section 2.03(c)
hereof.
"Superior Lien": With respect to any second lien Mortgage Loan, any
other mortgage loan that is not a Mortgage Loan relating to the corresponding
Mortgaged Property that creates a lien on such Mortgaged Property that is senior
to such second lien Mortgage Loan.
"Targeted Overcollateralization Amount": As of any Distribution Date,
(x) prior to the Stepdown Date, 1.80% of the Cut-off Date Aggregate Principal
Balance and (y) on and after the Stepdown Date, (i) if a Trigger Event has not
occurred, the greater of (A) 3.60% of the Pool Balance as of the last day of the
related Collection Period and (B) 0.50% of the Cut-off Date Aggregate Principal
Balance and (ii) if a Trigger Event has occurred, the Targeted
Overcollateralization Amount for the immediately preceding Distribution Date.
"Tax Matters Person": The tax matters person appointed pursuant to
Section 9.01(e) hereof.
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"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of the REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of the Trust for each of the four REMICs created
pursuant to this Agreement under the REMIC Provisions, together with any and all
other information reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Tax Service Contract": As defined in Section 3.08(a) hereof.
"Telerate Page 3750": The display page currently so designated on the
Moneyline Telerate Service (or such other page as may replace the Telerate Page
3750 page on that service for the purpose of displaying London interbank offered
rates of major banks).
"Termination Price": As defined in Section 10.01(a) hereof.
"Trigger Event": With respect to any Distribution Date, if (i) the
three-month rolling average of 60+ Day Delinquent Loans equals or exceeds 42.75%
of the Senior Enhancement Percentage or (ii) the Cumulative Loss Percentage
exceeds the applicable percentages set forth below with respect to such
Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
December 2006 through November 2007 2.75%
December 2007 through November 2008 4.25%
December 2008 through November 2009 5.50%
December 2009 through November 2010 6.25%
December 2010 and thereafter 6.50%
"Trust": ABFC 2003-WMC1 Trust, the trust created hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to a portion of which two REMIC elections are to be made (as
described in the Preliminary Statement), such entire Trust Fund consisting of:
(i) such Mortgage Loans as from time to time are subject to this Agreement,
together with the Mortgage Files relating thereto, and together with all
collections thereon and proceeds thereof, (ii) any REO Property, together with
all collections thereon and proceeds thereof, (iii) the Trustee's rights with
respect to the Mortgage Loans under all insurance policies required to be
maintained pursuant to this Agreement and any proceeds thereof, (iv) the
Depositor's rights under the Originator Mortgage Loan Purchase Agreement and the
Mortgage Loan Purchase Agreement (including any security interest created
thereby), (v) the Trustee's rights under the Yield Maintenance Agreement and
(vi) the Collection Account, the Distribution
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Account and the Reserve Account and such assets that are deposited therein from
time to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto.
"Trustee": JPMorgan Chase Bank, a New York banking corporation, or any
successor Trustee appointed as herein provided.
"Trustee Fee": With respect to any Distribution Date, the product of
(x) one-twelfth of the Trustee Fee Rate and (y) the aggregate of the Principal
Balances of all Mortgage Loans as of the opening of business on the first day of
the related Collection Period.
"Trustee Fee Rate": With respect to any Distribution Date, 0.006% per
annum.
"Uncertificated Accrued Interest": With respect to each REMIC 1
Regular Interest on each Distribution Date, an amount equal to one month's
interest at the related Uncertificated Pass-Through Rate on the Uncertificated
Principal Balance of such REMIC Regular Interest. In each case, Uncertificated
Accrued Interest will be reduced by any Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls (allocated to such REMIC Regular Interests based
on their respective entitlements to interest irrespective of any Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date).
"Uncertificated Principal Balance": The amount of any REMIC 1 Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Balance of each REMIC 1 Regular Interest shall equal the
amount set forth in the Preliminary Statement hereto as its initial
uncertificated balance. On each Distribution Date, the Uncertificated Principal
Balance of each REMIC 1 Regular Interest shall be reduced by all distributions
of principal made on such REMIC 1 Regular Interest on such Distribution Date
pursuant to Section 4.08 and, if and to the extent necessary and appropriate,
shall be further reduced on such Distribution Date by Realized Losses as
provided in Section 4.08(b). The Uncertificated Balance of REMIC 1 Regular
Interest I-LTZZ shall be increased by interest deferrals as provided in Section
4.08(a)(i). The Uncertificated Balance of each REMIC 1 Regular Interest shall
never be less than zero.
"Uncertificated REMIC 1 Pass-Through Rate": With respect to REMIC 1
Regular Interest LT1AA, REMIC 1 Regular Interest LT1A1, REMIC 1 Regular Interest
LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest LT1M1, REMIC 1
Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1 Regular Interest
LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1 Regular Interest LT1M6, REMIC 1
Regular Interest LT1ZZ, REMIC 1 Regular Interest LT1SUB, REMIC 1 Regular
Interest LT2SUB and REMIC 1 Regular Interest LT1XX, the Weighted Average Net
Mortgage Rate of the Mortgage Loans. With respect to REMIC 1 Regular Interest
LT1GRP, the Weighted Average Net Mortgage Rate of the Group 1 Mortgage Loans.
With respect REMIC 1 Regular Interest LT2GRP, the Weighted Average Net Mortgage
Interest Rate of the Group 2 Mortgage Loans.
"United States Person" or "U.S. Person": (i) A citizen or resident of
the United States, (ii) a corporation, partnership or other entity treated as a
corporation or partnership for United States federal income tax purposes
organized in or under the laws of the United States or
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any state thereof or the District of Columbia (unless, in the case of a
partnership, Treasury regulations provide otherwise), (iii) an estate the income
of which is includible in gross income for United States tax purposes,
regardless of its source, or (iv) a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States persons have authority to control all substantial
decisions of the trust. Notwithstanding the preceding sentence, to the extent
provided in Treasury regulations, certain Trusts in existence on August 20,
1996, and treated as United States persons prior to such date, that elect to
continue to be treated as United States persons will also be a U.S. Person;
provided, that for purposes of the definition of a "Permitted Transferee," a
U.S. Person shall not include any person whose income is attributable to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other Person.
"Unpaid Realized Loss Amount": For any Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class
M-3, Class M-4, Class M-5 and Class M-6 Certificates and as to any Distribution
Date, the excess of (x) the aggregate Applied Realized Loss Amounts applied with
respect to such Class for all prior Distribution Dates over (y) the aggregate
Realized Loss Amortization Amounts with respect to such Class for all prior
Distribution Dates.
"Value": With respect to any Mortgaged Property, the value thereof as
determined by an independent appraisal made at the time of the origination of
the related Mortgage Loan or the sale price, if the appraisal is not available.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. The Voting Rights allocated
among Holders of the Offered Certificates shall be 98%, and shall be allocated
among each such Class according to the fraction, expressed as a percentage, the
numerator of which is the aggregate Certificate Principal Balance of all the
Certificates of such Class then outstanding and the denominator of which is the
aggregate Certificate Principal Balance of all the Offered Certificates then
outstanding. The Voting Rights allocated to each such Class of Certificates
shall be allocated among all holders of each such Class in proportion to the
outstanding Certificate Principal Balance of such Certificates; provided,
however, that any Certificate registered in the name of the Servicer, the
Depositor or the Trustee or any of their respective affiliates shall not be
included in the calculation of Voting Rights; provided that only such
Certificates as are known by a Responsible Officer of the Trustee to be so
registered will be so excluded. One percent of all the Voting Rights will be
allocated to the Holders of each of the Class CE and Class P Certificates. The
Class R Certificates shall have no Voting Rights.
"Weighted Average Net Mortgage Rate": The weighted average (based on
Principal Balance as of the first day of the related Collection Period or, in
the case of the first Distribution Date, the Cut-off Date) of the Net Mortgage
Interest Rates of the Mortgage Loans, the Group 1 Mortgage Loans or the Group 2
Mortgage Loans, as applicable, expressed for each such Mortgage Loan as an
annual rate and calculated on the basis of twelve months consisting of 30 days
each and a 360-day year.
"Written Order to Authenticate": A written order by which the
Depositor directs the Trustee to execute, authenticate and deliver the
Certificates.
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"Yield Maintenance Agreement": The interest rate cap agreement between
the Trustee, on behalf of the Trust, and the Yield Maintenance Agreement
Provider substantially in the form attached hereto as Exhibit N. The Yield
Maintenance Agreement shall not be an asset of any REMIC formed under this
Agreement.
"Yield Maintenance Agreement Payment": On each Distribution Date
through the Distribution Date in February 2007, the amount equal to the product
of (a) the excess of the lesser of (i) One-Month LIBOR and (ii) 8.88% over the
strike rate for such Distribution Date set forth on the schedule attached to the
confirmation to the Yield Maintenance Agreement for such Distribution Date, (b)
the product of the cap notional amount and the scale factor, both as set forth
on the schedule attached to the confirmation to the Yield Maintenance Agreement
for such Distribution Date and (c) a fraction, the numerator of which is the
actual number of days elapsed since the previous Distribution Date to but
excluding the current Distribution Date and the denominator of which is 360.
"Yield Maintenance Agreement Provider": Swiss Re Financial Products
Corporation and any successor thereto.
Section 1.02 Accounting.
Unless otherwise specified herein, for the purpose of any definition
or calculation, whenever amounts are required to be netted, subtracted or added
or any distributions are taken into account such definition or calculation and
any related definitions or calculations shall be determined without duplication
of such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee, on
behalf of the Trust, without recourse for the benefit of the Certificateholders
all of the right, title and interest of the Depositor, including any security
interest therein for the benefit of the Depositor, in and to (i) each Mortgage
Loan identified on the Mortgage Loan Schedules, including the related Cut-off
Date Principal Balance, all interest accruing thereon after the Cut-off Date and
all collections in respect of interest and principal due after the Cut-off Date;
(ii) property which secured each such Mortgage Loan and which has been acquired
by foreclosure or deed in lieu of foreclosure; (iii) its interest in any
insurance policies in respect of the Mortgage Loans; (iv) all other assets
included or to be included in the Trust Fund; (v) all proceeds of any of the
foregoing; (vi) the rights of the Depositor under the Consulting Agreement; and
(vii) the rights of the Depositor under the Originator Mortgage Loan Purchase
Agreement, the Mortgage Loan Purchase Agreement and the Assignment, Assumption
and Recognition Agreement. Such assignment includes all interest and principal
due to the Depositor or the Servicer after the Cut-off Date with respect to the
Mortgage Loans.
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In connection with such transfer and assignment, the Depositor has
delivered (or has caused to be delivered) to, and deposit (or cause to be
deposited) with the Trustee, or its designated agent, the following documents or
instruments with respect to each Mortgage Loan (a "Mortgage File") so
transferred and assigned:
(i) the original Mortgage Note including any riders thereto, endorsed
either (A) in blank or (B) in the following form: "Pay to the order of
JPMorgan Chase Bank, as Trustee under the Pooling and Servicing Agreement,
dated as of November 1, 2003, among Asset Backed Funding Corporation, HomEq
Servicing Corporation and JPMorgan Chase Bank, ABFC Asset-Backed
Certificates, Series 2003-WMC1, without recourse," or with respect to any
lost Mortgage Note, an original Lost Note Affidavit, together with a copy
of the related Mortgage Note;
(ii) the original Mortgage with evidence of recording thereon
including any riders thereto, and the original recorded power of attorney,
if the Mortgage was executed pursuant to a power of attorney, with evidence
of recording thereon or, if such Mortgage or power of attorney has been
submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a
copy of such Mortgage or power of attorney, as the case may be, certified
to be a true and complete copy of the original submitted for recording;
(iii) except with respect to each MERS Designated Mortgage Loan, an
original Assignment of Mortgage, in form and substance acceptable for
recording. The Mortgage shall be assigned either (A) in blank or (B) to
"JPMorgan Chase Bank, as Trustee under the Pooling and Servicing Agreement,
dated as of November 1, 2003, among Asset Backed Funding Corporation, HomEq
Servicing Corporation and JPMorgan Chase Bank, ABFC Asset-Backed
Certificates, Series 2003-WMC1, without recourse";
(iv) the originals of all intervening Assignments of Mortgage (if any)
evidencing a complete chain of assignment from the applicable originator
(or MERS with respect to each MERS Designated Mortgage Loan) to the last
endorsee with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or
has been lost or if such public recording office retains the original
recorded Assignments of Mortgage, deliver a photocopy of such intervening
assignment certified by the title company, escrow agent, closing attorney
or public recording office to be a true and complete copy of the original
recorded intervening assignment;
(v) the original or a certified copy of lender's title insurance
policy; and
(vi) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any.
If any of the documents referred to in Section 2.01(ii), (iii) or (iv)
above has as of the Closing Date been submitted for recording but either (x) has
not been returned from the applicable public recording office or (y) has been
lost or such public recording office has retained the original of such document,
the obligations of the Depositor to deliver such
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documents shall be deemed to be satisfied upon (1) delivery to the Trustee no
later than the Closing Date, of a copy of each such document certified by the
Originator, Seller, title company, escrow agent or closing attorney in the case
of (x) above or the applicable public recording office in the case of (y) above
to be a true and complete copy of the original that was submitted for recording
and (2) if such copy is certified by the Seller, delivery to the Trustee,
promptly upon receipt thereof of either the original or a copy of such document
certified by the applicable public recording office to be a true and complete
copy of the original. If the original lender's title insurance policy was not
delivered pursuant to Section 2.01(v) above, the Depositor shall deliver or
cause to be delivered to the Trustee, a written commitment or interim binder or
preliminary report of title issued by the title insurance or escrow company,
with the original to be delivered to the Trustee, promptly upon receipt thereof.
The Depositor shall deliver or cause to be delivered to the Trustee promptly
upon receipt thereof any other documents constituting a part of a Mortgage File
received with respect to any Mortgage Loan, including, but not limited to, any
original documents evidencing an assumption or modification of any Mortgage
Loan.
Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File, the Seller
shall have 120 days to cure such defect or 150 days following the Closing Date,
in the case of missing Mortgages or Assignments or deliver such missing document
to the Trustee. If the Seller does not cure such defect or deliver such missing
document within such time period, the Seller shall either repurchase or
substitute for such Mortgage Loan in accordance with Section 2.03.
The Depositor shall cause the Assignments of Mortgage which were
delivered in blank with respect to any Mortgage Loans that are not MERS
Designated Mortgage Loans to be completed. The Servicer shall cause, promptly
following the Closing Date, the MERS System to indicate that all of the Mortgage
Loans have been assigned by the Seller or the Originator, as the case may be, to
the Trustee in accordance with this Agreement. The Servicer shall not be liable
for failure to have any assignments of Mortgage Loans that are not MERS
Designated Mortgage Loans recorded in the name of MERS.
The Depositor herewith delivers to the Trustee executed copies of the
Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase
Agreement.
Section 2.02 Acceptance by Trustee.
The Trustee acknowledges the receipt of, subject to the provisions of
Section 2.01 and subject to the review described below and any exceptions noted
on the exception report described in the next paragraph below, the documents
referred to in Section 2.01 above and all other assets included in the
definition of "Trust Fund" and declares that it holds and will hold such
documents and the other documents delivered to it constituting a Mortgage File,
and that it holds or will hold all such assets and such other assets included in
the definition of "Trust Fund" in trust for the exclusive use and benefit of all
present and future Certificateholders.
The Trustee reviewed, for the benefit of the Certificateholders, each
Mortgage File prior to the Closing Date (or, with respect to any document
delivered after the Startup Day, within 60 days of receipt and with respect to
any Qualified Substitute Mortgage, within 60 days after the assignment thereof)
and will certify in substantially the form attached hereto as Exhibit
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F-1 that, as to each Mortgage Loan listed in the Mortgage Loan Schedules (other
than any Mortgage Loan paid in full or any Mortgage Loan specifically identified
in the exception report annexed thereto as not being covered by such
certification), (i) all documents required to be delivered to it pursuant to
Section 2.01 of this Agreement are in its possession, (ii) such documents have
been reviewed by it and have not been mutilated, damaged or torn and relate to
such Mortgage Loan and (iii) based on its examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedules to the
extent of the items set forth in Schedule B of Exhibit F-1 accurately reflects
information set forth in the Mortgage File. It is herein acknowledged that, in
conducting such review, the Trustee is under no duty or obligation to inspect,
review or examine any such documents, instruments, certificates or other papers
to determine that they are genuine, enforceable, or appropriate for the
represented purpose or that they have actually been recorded or that they are
other than what they purport to be on their face.
Prior to the first anniversary date of this Agreement the Trustee
shall deliver to the Depositor and the Servicer a final certification in the
form annexed hereto as Exhibit F-2 evidencing the completeness of the Mortgage
Files, with any applicable exceptions noted thereon.
If in the process of reviewing the Mortgage Files and making or
preparing, as the case may be, the certifications referred to above, the Trustee
finds any document or documents constituting a part of a Mortgage File to be
missing or defective in any material respect, at the conclusion of its review
the Trustee shall so notify the Seller, the Depositor and the Servicer. In
addition, upon the discovery by the Originator, the Seller, the Depositor, the
Trustee or the Servicer (or upon receipt by the Trustee of written notification
of such breach) of a breach of any of the representations and warranties made by
the Originator in the Originator Mortgage Loan Purchase Agreement or the Seller
in the Mortgage Loan Purchase Agreement in respect of any Mortgage Loan which
materially adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties.
The Depositor and the Trustee intend that the assignment and transfer
herein contemplated constitute a sale of the Mortgage Loans and the Related
Documents, conveying good title thereto free and clear of any liens and
encumbrances, from the Depositor to the Trustee and that such property not be
part of the Depositor's estate or property of the Depositor in the event of any
insolvency by the Depositor. In the event that such conveyance is deemed to be,
or to be made as security for, a loan, the parties intend that the Depositor
shall be deemed to have granted and does hereby grant to the Trustee, on behalf
of the Trust, a first priority perfected security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans and the
Related Documents, and that this Agreement shall constitute a security agreement
under applicable law.
Section 2.03 Repurchase or Substitution of Mortgage Loans by the
Originator or the Seller.
(a) Upon discovery or receipt of written notice of any materially
defective document in, or that a document is missing from, a Mortgage File or
that any document in a Mortgage File is materially inconsistent with the related
Mortgage Loan Schedule or of the
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breach by the Originator or the Seller of any representation or warranty under
the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase
Agreement in respect of any Mortgage Loan which materially adversely affects the
value of such Mortgage Loan, Prepayment Charge or the interest therein of the
Certificateholders, the Trustee shall promptly notify the Originator or the
Seller, as the case may be, and the Servicer of such defect, missing document or
breach and request that, in the case of a defective or missing document, the
Seller cure such defect or deliver such missing document within 120 days from
the date the Seller was notified of such missing document or defect or, in the
case of a beach of a representation or warranty, request that the Originator or
the Seller, as applicable, cure such breach within 90 days from the date the
Originator or the Seller, as the case may be, was notified of such breach. If
the Seller does not deliver such missing document or cure such defect or if the
Originator or the Seller, as applicable, does not cure such breach in all
material respects during such period, the Trustee shall enforce the Originator's
or the Seller's obligation, as the case may be, under the Originator Mortgage
Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable,
and cause the Originator or the Seller, as applicable, to repurchase such
Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the
Determination Date following the expiration of such period (subject to Section
2.03(d)). The Purchase Price for the repurchased Mortgage Loan shall be
deposited in the Collection Account, and the Trustee, upon receipt of written
notice from the Servicer of such deposit, shall release to the Originator or the
Seller, as applicable, the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
the Originator or the Seller, as applicable, shall furnish to it and as shall be
necessary to vest in the Originator or the Seller, as the case may be, any
Mortgage Loan released pursuant hereto and the Trustee shall have no further
responsibility with regard to such Mortgage File. In lieu of repurchasing any
such Mortgage Loan as provided above, the Originator or the Seller, as the case
may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which
case it shall become a Defective Mortgage Loan) and substitute one or more
Eligible Substitute Mortgage Loans in the manner and subject to the limitations
set forth in Section 2.03(c). In addition to the foregoing, if the Purchase
Price for a repurchased Mortgage Loan does not fully compensate the Trust for
any costs or damages incurred by the Trust in connection with a breach of the
Originator's representations with respect to predatory or abusive lending laws
set forth in Section 3.02(i) of the Originator Mortgage Loan Purchase Agreement
with respect to such repurchased Mortgage Loan, the Seller shall be required to
reimburse the Trust pursuant to the Mortgage Loan Purchase Agreement the amount
necessary to fully compensate the Trust for such costs or damages (the
"Reimbursement Amount"). The Reimbursement Amount shall be delivered to the
Servicer for deposit into the Collection Account within 10 days from the date
the Seller was notified by the Trustee of the Reimbursement Amount.
It is understood and agreed that the representations and warranties
set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage
Loan Purchase Agreement shall survive delivery of the Mortgage Files to the
Trustee and shall inure to the benefit of the Certificateholders notwithstanding
any restrictive or qualified endorsement or assignment. It is understood and
agreed that the obligations of the Originator and the Seller set forth in this
Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant
to the Mortgage Loan Purchase Agreement and to pay the Reimbursement Amount
constitute the sole remedies available to the Certificateholders and to the
Trustee on their behalf respecting a breach of the representations and
warranties contained in the Mortgage Loan Purchase Agreement.
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The representations and warranties of the Originator with respect to
the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which
have been assigned to the Trustee hereunder, were made as of the dates specified
in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact,
condition or event with respect to a Mortgage Loan constitutes a breach of both
(i) a representation or warranty of the Originator under the Originator Mortgage
Loan Purchase Agreement and (ii) a representation or warranty of the Seller
under the Mortgage Loan Purchase Agreement (other than Seller's representations
with respect to predatory and abusive lending laws and "high cost" loans in
Sections 3.01(i) and (ii) of the Mortgage Loan Purchase Agreement), the only
right or remedy of the Trustee or of any Certificateholder shall be the
Trustee's right to enforce the obligations of the Originator under any
applicable representation or warranty made by it. The Trustee acknowledges that
the Seller shall have no obligation or liability with respect to any breach of a
representation or warranty made by it with respect to the Mortgage Loans (except
as otherwise set forth in this paragraph) if the fact, condition or event
constituting such breach also constitutes a breach of a representation or
warranty made by the Originator in the Originator Mortgage Loan Purchase
Agreement, without regard to whether the Originator fulfills its contractual
obligations in respect of such representation or warranty. In addition, to the
extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of both (x) the Originator's representation with respect to
predatory and abusive lending laws in Section 3.02(i) of the Originator Mortgage
Loan Purchase Agreement and (y) the Seller's representation with respect to
predatory and abusive lending laws in Section 3.01(i) of the Mortgage Loan
Purchase Agreement, the Trustee shall be entitled to enforce the Seller's
obligation to pay any Reimbursement Amount to the extent the Originator fails to
do so.
(b) Within 90 days of the earlier of discovery by the Servicer or
receipt of notice by the Servicer of the breach of any representation, warranty
or covenant of the Servicer set forth in Section 2.05 which materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the Servicer shall cure such breach in all material respects.
(c) Any substitution of Eligible Substitute Mortgage Loans for
Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior
to the last Business Day that is within two years after the Closing Date. As to
any Defective Mortgage Loan for which the Originator or the Seller substitutes
an Eligible Substitute Mortgage Loan or Loans, such substitution shall be
effected by the Originator or the Seller, as applicable, delivering to the
Trustee for such Eligible Substitute Mortgage Loan or Loans, the Mortgage Note,
the Mortgage, the Assignment to the Trustee, and such other documents and
agreements, with all necessary endorsements thereon, as are required by Section
2.01, together with an Officers' Certificate providing that each such Eligible
Substitute Mortgage Loan satisfies the definition thereof and specifying the
Substitution Adjustment Amount (as described below), if any, in connection with
such substitution. The Trustee shall acknowledge receipt for such Eligible
Substitute Mortgage Loan or Loans and, within ten Business Days thereafter,
shall review such documents as specified in Section 2.02 and deliver to the
Servicer, with respect to such Eligible Substitute Mortgage Loan or Loans, a
certification substantially in the form attached hereto as Exhibit F-1, with any
applicable exceptions noted thereon. Within one year of the date of
substitution, the Trustee shall deliver to the Servicer the Final Certification
substantially in the form of Exhibit F-2 hereto with respect to such Eligible
Substitute Mortgage Loan or Loans, with any applicable
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exceptions noted thereon. Monthly Payments due with respect to Eligible
Substitute Mortgage Loans in the month of substitution are not part of the Trust
Fund and will be retained by the Originator or the Seller, as applicable. For
the month of substitution, distributions to Certificateholders will reflect the
collections and recoveries in respect of such Defective Mortgage Loan in the
Collection Period or Prepayment Period, as applicable, preceding the date of
substitution and the Depositor, the Originator or the Seller, as the case may
be, shall thereafter be entitled to retain all amounts subsequently received in
respect of such Defective Mortgage Loan. The Depositor shall give or cause to be
given written notice to the Certificateholders that such substitution has taken
place, shall amend the applicable Mortgage Loan Schedule to reflect the removal
of such Defective Mortgage Loan from the terms of this Agreement and the
substitution of the Eligible Substitute Mortgage Loan or Loans and shall deliver
a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such
substitution, such Eligible Substitute Mortgage Loan or Loans shall constitute
part of the Mortgage Pool and shall be subject in all respects to the terms of
this Agreement and, in the case of a substitution effected by the Originator or
the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan
Purchase Agreement, as the case may be, including, in the case of a substitution
effected by the Originator or the Seller, all applicable representations and
warranties thereof included in the Originator Mortgage Loan Purchase Agreement
or the Mortgage Loan Purchase Agreement, as the case may be, as of the date of
substitution.
For any month in which the Originator or the Seller substitutes one or
more Eligible Substitute Mortgage Loans for one or more Defective Mortgage
Loans, the Servicer will determine the amount (the "Substitution Adjustment
Amount"), if any, by which the aggregate Purchase Price of all such Defective
Mortgage Loans exceeds the aggregate, as to each such Eligible Substitute
Mortgage Loan, of the principal balance thereof as of the date of substitution,
together with one month's interest on such principal balance at the applicable
Net Mortgage Interest Rate. On the date of such substitution, the Originator or
the Seller, as the case may be, will deliver or cause to be delivered to the
Servicer for deposit in the Collection Account an amount equal to the
Substitution Adjustment Amount, if any, and the Trustee, upon receipt of the
related Eligible Substitute Mortgage Loan or Loans and notice by the Servicer of
such deposit, shall release to the Originator or the Seller, as applicable, the
related Mortgage File or Files and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Originator or the
Seller, as the case may be, shall deliver to it and as shall be necessary to
vest therein any Defective Mortgage Loan released pursuant hereto. In addition,
in connection with the substitution of one or more Eligible Substitute Mortgage
Loans for one or more Defective Mortgage Loans, in the event the Trust incurs
costs or damages arising in connection with a breach of the Originator's
representations with respect to predatory or abusive lending laws set forth in
Section 3.02(i) of the Originator Mortgage Loan Purchase Agreement, the Seller
shall be required to reimburse the Trust for the Reimbursement Amount pursuant
to the Mortgage Loan Purchase Agreement.
In addition, the Originator or the Seller, as applicable, shall obtain
at its own expense and deliver to the Trustee an Opinion of Counsel to the
effect that such substitution will not cause (a) any federal tax to be imposed
on the Trust Fund, including without limitation, any federal tax imposed on
"prohibited transactions" under Section 860F(a)(l) of the Code or on
"contributions after the startup date" under Section 860G(d)(l) of the Code, or
(b) any REMIC to fail to qualify as a REMIC at any time that any Certificate is
outstanding. If such Opinion of
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Counsel can not be delivered, then such substitution may only be effected at
such time as the required Opinion of Counsel can be given.
(d) Upon discovery by the Originator, the Seller, the Servicer or the
Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code, the party discovering such fact
shall within two Business Days give written notice thereof to the other parties.
In connection therewith, the Originator or the Seller, as applicable, shall
repurchase or, subject to the limitations set forth in Section 2.03(c),
substitute one or more Eligible Substitute Mortgage Loans for the affected
Mortgage Loan within 90 days of the earlier of discovery or receipt of such
notice with respect to such affected Mortgage Loan. In addition, upon discovery
that a Mortgage Loan is defective in a manner that would cause it to be a
"defective obligation" within the meaning of Treasury regulations relating to
REMICs, the Originator or the Seller, as the case may be, shall cure the defect
or make the required purchase or substitution no later than 90 days after the
discovery of the defect. Any such repurchase or substitution shall be made in
the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to
the Originator or the Seller, as applicable, the Mortgage Loan to be released
pursuant hereto in the same manner, and on the same terms and conditions, as it
would a Mortgage Loan repurchased for breach of a representation or warranty.
Section 2.04 Execution of Yield Maintenance Agreement.
The Depositor hereby directs the Trustee to enter into and execute the
Yield Maintenance Agreement on the Closing Date on behalf of the Trust for the
benefit of the Holders of the Offered Certificates. The Depositor, the Servicer
and the Holders of the Offered Certificates (by their acceptance of such
Certificates) acknowledge that JPMorgan Chase Bank is entering into the Yield
Maintenance Agreement solely in its capacity as Trustee of the Trust Fund and
not in its individual capacity.
Section 2.05 Representations, Warranties and Covenants of the
Servicer.
The Servicer hereby represents, warrants and covenants to the Trustee,
for the benefit of each of the Trustee and the Certificateholders and to the
Depositor that as of the Closing Date or as of such date specifically provided
herein:
(i) The Servicer is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey and has all
licenses necessary to carry on its business as now being conducted, except
for such licenses, certificates and permits the absence of which,
individually or in the aggregate, would not have a material adverse effect
on the ability of the Servicer to conduct its business as it is presently
conducted, and is licensed, qualified and in good standing in the states
where the Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type
conducted by the Servicer or to ensure the enforceability or validity of
each Mortgage Loan; the Servicer has the power and authority to execute and
deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Servicer and the consummation of the transactions contemplated hereby have
been duly and validly authorized; this Agreement and all
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documents and instruments contemplated hereby which are executed and
delivered by the Servicer evidence the valid, legal and binding obligations
of the Servicer, enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, receivorship,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally (whether considered in a proceeding at law or in equity);
and all requisite corporate action has been taken by the Servicer to make
this Agreement valid and binding upon the Servicer in accordance with its
terms;
(ii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer and will
not result in the breach of any term or provision of the articles of
incorporation or by-laws of the Servicer or result in the breach of any
term or provision of, or conflict with or constitute a default under or
result in the acceleration of any obligation under, any agreement,
indenture, loan or credit agreement or other instrument to which the
Servicer or its property is subject, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Servicer or its
property is subject;
(iii) The Servicer is an approved seller/servicer of conventional
residential mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with the
facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The
Servicer is a HUD approved mortgagee pursuant to Section 203 of the
National Housing Act and is in good standing to sell mortgage loans to and
service mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no event has
occurred, including but not limited to a change in insurance coverage,
which would make the Servicer unable to comply with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac eligibility requirements or which would require notification to either
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(iv) The Servicer does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained
in this Agreement;
(v) There is no action, suit, proceeding or investigation pending or,
to its knowledge, threatened against the Servicer that, either individually
or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right or ability of the
Servicer to carry on its business substantially as now conducted, or in any
material liability on the part of the Servicer, or that would draw into
question the validity or enforceability of this Agreement or of any action
taken or to be taken in connection with the obligations of the Servicer
contemplated herein, or that would be likely to impair materially the
ability of the Servicer to perform under the terms of this Agreement;
(vi) No consent, approval or order of any court or governmental agency
or body is required for the execution, delivery and performance by the
Servicer of or compliance by the Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such consents, approvals, authorizations and orders, if any, that have been
obtained;
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(vii) No information in this Agreement provided by the Servicer nor
any information, certificate of an officer, statement furnished in writing
or report delivered to the Trustee by the Servicer in connection with the
transactions contemplated hereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements contained therein, in light of
the circumstances under which they were made, not misleading;
(viii) The Servicer acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and that
the entire Servicing Fee shall be treated by the Servicer, for accounting
and tax purposes, as compensation for the servicing and administration of
the Mortgage Loans pursuant to this Agreement; and
(ix) The Servicer is a member of MERS in good standing.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the Mortgage
Files to the Trustee and shall inure to the benefit of the Trustee, the
Depositor and the Certificateholders. Upon discovery by any of the Depositor,
the Servicer or the Trustee of a breach of any of the foregoing representations,
warranties and covenants which materially and adversely affects the value of any
Mortgage Loan, Prepayment Charge or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice (but in no event later than two Business Days following such discovery)
to the other parties hereto.
Section 2.06 Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Trust and the Trustee on
behalf of the Certificateholders and to the Servicer as follows:
(i) This agreement constitutes a legal, valid and binding obligation
of the Depositor, enforceable against the Depositor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity);
(ii) Immediately prior to the sale and assignment by the Depositor to
the Trustee on behalf of the Trust of each Mortgage Loan, the Depositor had
good and marketable title to each Mortgage Loan (insofar as such title was
conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or
other encumbrance or other interest of any nature;
(iii) As of the Closing Date, the Depositor has transferred all right,
title interest in the Mortgage Loans to the Trustee on behalf of the Trust;
(iv) The Depositor has not transferred the Mortgage Loans to the
Trustee on behalf of the Trust with any intent to hinder, delay or defraud
any of its creditors;
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(v) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its assets and conduct its
business as presently being conducted;
(vi) The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Depositor is a party or by which it or its
properties may be bound, which default might result in any material adverse
changes in the financial condition, earnings, affairs or business of the
Depositor or which might materially and adversely affect the properties or
assets, taken as a whole, of the Depositor;
(vii) The execution, delivery and performance of this Agreement by the
Depositor, and the consummation of the transactions contemplated thereby,
do not and will not result in a material breach or violation of any of the
terms or provisions of, or, to the knowledge of the Depositor, constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Depositor is a party or by which
the Depositor is bound or to which any of the property or assets of the
Depositor is subject, nor will such actions result in any violation of the
provisions of the certificate of incorporation or by-laws of the Depositor
or, to the best of the Depositor's knowledge without independent
investigation, any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Depositor or any
of its properties or assets (except for such conflicts, breaches,
violations and defaults as would not have a material adverse effect on the
ability of the Depositor to perform its obligations under this Agreement);
(viii) To the best of the Depositor's knowledge without any
independent investigation, no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body of the United States or any other jurisdiction is required for the
issuance of the Certificates, or the consummation by the Depositor of the
other transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as (a) may be
required under State securities or Blue Sky laws, (b) have been previously
obtained or (c) the failure of which to obtain would not have a material
adverse effect on the performance by the Depositor of its obligations
under, or the validity or enforceability of, this Agreement; and
(ix) There are no actions, proceedings or investigations pending
before or, to the Depositor's knowledge, threatened by any court,
administrative agency or other tribunal to which the Depositor is a party
or of which any of its properties is the subject: (a) which if determined
adversely to the Depositor would have a material adverse effect on the
business, results of operations or financial condition of the Depositor;
(b) asserting the invalidity of this Agreement or the Certificates; (c)
seeking to prevent the issuance of the Certificates or the consummation by
the Depositor of any of the transactions contemplated by this Agreement, as
the case may be; (d) which might materially and
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adversely affect the performance by the Depositor of its obligations under,
or the validity or enforceability of, this Agreement.
Section 2.07 Issuance of Certificates and the Uncertificated Regular
Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it of the Mortgage Files, subject to the provisions of
Sections 2.01 and 2.02, and the Trustee acknowledges the assignment to it of all
other assets included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the Trustee, pursuant to the Written Order to Authenticate executed by
an officer of the Depositor, has executed, and the Certificate Registrar has
authenticated and delivered to or upon the order of the Depositor, the
Certificates (other than the Class CE, Class P and Class R Certificates) in
minimum dollar denominations or $25,000 and integral dollar multiples of $1 in
excess. The Class CE and Class P and Class R Certificates are issuable only in
minimum Percentage Interests of 10%. The Class R Certificate is issuable only as
a single certificate. The Trustee acknowledges the issuance of the
uncertificated REMIC 1 Regular Interests and declares that it hold such regular
interests as assets of REMIC 2. The Trustee acknowledges the obligation of the
Class CE Certificates to pay Cap Carryover Amounts, and declares that it hold
the same as assets of the Grantor Trust on behalf of the Holders of the Class
A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5
and Class M-6 Certificates, respectively. In addition to the assets described in
the preceding sentence, the assets of the Grantor Trust shall also include (i)
Prepayment Charges, any Originator Prepayment Charge Payment Amounts, any
Servicer Prepayment Charge Payment Amounts and the beneficial interest of the
Class P Certificates with respect thereto and (ii) the Yield Maintenance
Agreement, the Reserve Account and the beneficial interest of the Class CE
Certificates with respect thereto, subject to the obligation to pay Cap
Carryover Amounts. The interests evidenced by the Certificates constitute the
entire beneficial ownership interest in the Trust Fund.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer.
The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans (including with respect to collection procedures)
in accordance with this Agreement and the normal and usual standards of practice
of prudent mortgage servicers servicing similar mortgage loans and, to the
extent consistent with such terms, in the same manner in which it services and
administers similar mortgage loans for its own portfolio, giving due
consideration to the Certificateholders' reliance on the Servicer, and shall
have full power and authority, acting alone, to do or cause to be done any and
all things in connection with such servicing and administration which the
Servicer may deem necessary or desirable and consistent with the terms of this
Agreement (the "Servicing Standard").
Consistent with the terms of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with
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any such term or in any manner grant indulgence to any Mortgagor if in the
Servicer's reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Certificateholders;
provided, however, that the Servicer shall not make future advances that are
deemed by the Servicer to be Nonrecoverable Advances and, except as set forth in
the following sentence or Section 3.03, the Servicer shall not permit any
modification with respect to any Mortgage Loan that would (i) change the
Mortgage Interest Rate, defer or forgive the payment thereof of any principal or
interest payments, reduce the outstanding principal amount (except for actual
payments of principal) or extend the final maturity date with respect to such
Mortgage Loan, (ii) affect adversely the status of any REMIC constituting part
of the Trust Fund as a REMIC or (iii) cause any such REMIC to be subject to a
tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions. In the event that the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable consistent with the standards set forth in this Section 3.01, the
Servicer may permit a modification of such Mortgage Loan (including
modifications that would change the Mortgage Rate, forgive the payment of
principal or interest or extend the final maturity date of such Mortgage Loan),
accept payment from the related Mortgagor of an amount less than the Principal
Balance in final satisfaction of such Mortgage Loan, or consent to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as a "forbearance"); provided, however, that the terms of any
Mortgage Loan may only be modified after it has become a 60+ Day Delinquent
Loan; provided, further, that the final maturity date of any Mortgage Loan may
not be extended beyond the latest maturity date of any other Mortgage Loan. The
Servicer's analysis supporting any forbearance and the conclusion that any
forbearance meets the standards of this Section 3.01 shall be reflected in
writing in the Mortgage File or on the Servicer's servicing system.
Notwithstanding the foregoing, the Servicer shall not permit any modification
with respect to any Mortgage Loan that would both (x) effect an exchange or
reissuance of such Mortgage Loan under Section 1.860G-2(b) of the Treasury
Regulations and (y) cause any REMIC constituting part of the Trust Fund to fail
to qualify as a REMIC under the Code or the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions. Without limiting the generality of the foregoing, the Servicer shall
continue, and is hereby authorized and empowered to execute and deliver on
behalf of itself, and the Trustee, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Property. The Servicer shall make all required Servicing Advances and
shall service and administer the Mortgage Loans in accordance with Applicable
Regulations, and shall provide to the Mortgagor any reports required to be
provided to them thereby. The Trustee shall execute and deliver to the Servicer
within at least fifteen (15) Business Days of receipt, upon request, any powers
of attorney furnished to it by the Servicer empowering the Servicer to execute
and deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate any Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to the
Mortgage Loans or the Mortgaged Properties, in accordance with this Agreement,
and the Trustee shall execute and deliver such other documents as the Servicer
may request, necessary or appropriate to enable the Servicer to service and
administer the Mortgage Loans and carry out its duties hereunder, in each case
in accordance with Servicing Standard (and the Trustee shall have
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no liability for misuse of any such powers of attorney by the Servicer).
Notwithstanding anything contained herein to the contrary, the Servicer shall
not without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating the Servicer's
representative capacity, or (ii) take any action with the intent to cause, and
which results in, the Trustee being registered to do business in any state.
The Servicer shall give prompt notice to the Trustee of any action, of
which the Servicer has actual knowledge, to (i) assert a claim against the Trust
Fund or (ii) assert jurisdiction over the Trust Fund.
The Servicer further is authorized and empowered by the Trustee, on
behalf of the Certificateholders and the Trustee, in its own name when the
Servicer believes it is appropriate in its best judgment to register any
Mortgage Loan on the MERS(R) System, or cause the removal from the registration
of any Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of
the Trustee and the Certificateholders or any of them, any and all Assignments
and other comparable instruments with respect to such assignment or re-recording
of a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
Notwithstanding anything in this Agreement to the contrary, in the
event of a Principal Prepayment of a Mortgage Loan, the Servicer may not waive
any Prepayment Charge or portion thereof required by the terms of the related
Mortgage Note unless (i)(a) the Servicer determines that such waiver is standard
and customary in servicing similar mortgage loans, (b) such waiver relates to a
default or a reasonably foreseeable default and (c) would, in the reasonable
judgment of the Servicer, maximize recovery of Liquidation Proceeds for such
Mortgage Loan, taking into account the value of such Prepayment Charge, or (ii)
such Prepayment Charge is prohibited by state or federal law. If the Servicer
has waived or does not collect all or a portion of a Prepayment Charge relating
to a Principal Prepayment due to any action or omission of the Servicer, other
than as provided above, the Servicer shall, on the date on which the Principal
Prepayment is remitted to the Trustee, deliver to the Trustee the Servicer
Prepayment Charge Amount with respect to such Mortgage Loan for distribution in
accordance with the terms of this Agreement.
In the event that a Prepayment Charge due with respect to any Mortgage
Loan is not timely received by the Servicer, the Servicer shall use commercially
reasonable efforts to determine whether the Originator is obligated to pay a
related Originator Prepayment Charge Payment Amount, and if the Servicer
determines that a Originator Prepayment Charge Payment Amount is due, the
Servicer shall promptly notify the Originator, and the Servicer shall enforce
the Originator's obligations to pay in a timely manner any such Originator
Prepayment Charge Payment Amounts and, to the extent that such amounts are
received by the Servicer, shall cause such amounts to be deposited into the
Collection Account within one Business Day of receipt.
Section 3.02 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full or as long as the Mortgage Loan remains
subject to this Agreement, the Servicer will diligently collect all payments due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this
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Agreement and Applicable Regulations, follow such collection procedures as it
follows with respect to mortgage loans comparable to the Mortgage Loans and held
for its own account. Further, the Servicer will take special care in
ascertaining and estimating on escrowed Mortgage Loans annual ground rents,
taxes, assessments, water rates, fire and hazard insurance premiums, mortgage
insurance premiums, and all other charges that, as provided in the Mortgage,
will become due and payable to that end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
Section 3.03 Realization Upon Defaulted Mortgage Loans.
In the event that any payment due under any Mortgage Loan is not paid
when the same becomes due and payable, or in the event the Mortgagor fails to
perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Servicer shall take
such action as it shall deem to be in the best interest of the
Certificateholders. With respect to any defaulted Mortgage Loan, the Servicer
shall have the right to review the status of the related forbearance plan and,
subject to the second paragraph of Section 3.01, may modify such forbearance
plan; including extending the Mortgage Loan repayment date for a period of one
year or reducing the Mortgage Interest Rate up to 50 basis points.
In connection with a foreclosure or other conversion, the Servicer
shall exercise such rights and powers vested in it hereunder and use the same
degree of care and skill in its exercise as prudent mortgage servicers would
exercise or use under the circumstances in the conduct of their own affairs and
consistent with Applicable Regulations and the Servicing Standards, including,
without limitation, advancing funds for the payment of taxes and insurance
premiums.
Notwithstanding the foregoing provisions of this Section 3.03, with
respect to any Mortgage Loan as to which the Servicer has received actual notice
of, or has actual knowledge of, the presence of any toxic or hazardous substance
on the related Mortgaged Property, the Servicer shall not either (i) obtain
title to such Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, or (ii) otherwise acquire possession of, or take any other action
with respect to, such Mortgaged Property if, as a result of any such action, the
Trust would be considered to hold title to, to be a mortgagee-in-possession of,
or to be an owner or operator of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Servicer
has also previously determined, based on its reasonable judgment and a prudent
report prepared by a Person who regularly conducts environmental audits using
customary industry standards, that:
A. such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic interest of
the Certificateholders to take such actions as are necessary to bring the
Mortgaged Property into compliance therewith; and
B. there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any hazardous substances,
hazardous materials, hazardous wastes, or petroleum-based materials for which
investigation, testing, monitoring, containment,
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clean-up or remediation could be required under any federal, state or local law
or regulation, or that if any such materials are present for which such action
could be required, that it would be in the best economic interest of the
Certificateholders to take such actions with respect to the affected Mortgaged
Property.
The cost of the environmental audit report contemplated by this
Section 3.03 shall be advanced by the Servicer, subject to the Servicer's right
to be reimbursed therefor from the Collection Account as provided in Section
3.05(iv).
If the Servicer determines, as described above, that it is in the best
economic interest of the Certificateholders to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials affecting any such Mortgaged Property, then
the Servicer shall take such action as it deems to be in the best economic
interest of the Certificateholders. The cost of any such compliance,
containment, clean-up or remediation shall be advanced by the Servicer, subject
to the Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.05(ii).
The Servicer, in its sole discretion, may, with respect to any second
lien Mortgage Loan which is greater than 120 days Delinquent and for which the
related senior lien mortgage loan is not a Mortgage Loan, charge off such second
lien Mortgage Loan if it has determined pursuant to its delinquency collection
policies and procedures that it is not reasonably likely that (i) any further
Servicing Advances will be ultimately recoverable from Liquidation Proceeds or
other proceeds from the related Mortgage Loan and (ii) any further net proceeds
will be received with respect to such Mortgage Loan (each such Mortgage Loan, a
"Charged-Off Mortgage Loan"). Any such Charged-Off Mortgage Loan shall be
treated as a Liquidated Mortgage Loan. The Servicer shall have no obligation to
make any Servicing Advances with respect to any Charged-Off Mortgage Loan and
shall not be entitled to the Servicing Fee with respect to such Charged-Off
Mortgage Loan for the period following the date on which such second lien
Mortgage Loan was charged off. Any Liquidation Proceeds received in connection
with any recoveries received with respect to such Charged-Off Mortgage Loan
shall be deposited in the Collection Account pursuant to Section 3.04.
Section 3.04 Collection Account, Distribution Account and Reserve
Account.
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Collection
Accounts. Each Collection Account shall be an Eligible Account.
The Servicer shall deposit in the Collection Account on a daily basis
within one Business Day of receipt, and retain therein, the following payments
and collections received or made by it after the Cut-off Date with respect to
the Mortgage Loans:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
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(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Interest Rate less the Servicing Fee Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be deposited
pursuant to Section 3.10, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or released to the Mortgagor in accordance with the Servicer's normal
servicing procedures, the loan documents or applicable law;
(v) all Condemnation Proceeds affecting any Mortgaged Property which
are not released to the Mortgagor in accordance with the Servicer's normal
servicing procedures, the loan documents or applicable law;
(vi) any amounts required to be deposited by the Servicer in
connection with any REO Property pursuant to Section 3.13; and
(vii) all Prepayment Charges collected by the Servicer in connection
with a Principal Prepayment of any Mortgage Loan, all Originator Prepayment
Charge Payment Amounts paid by the Originator and all Servicer Prepayment
Charge Payment Amounts required to be paid by the Servicer pursuant to
Section 3.01 in connection with any such Principal Prepayment.
Any interest paid on funds deposited in the Collection Account,
subject to Section 3.25, shall accrue to the benefit of the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Collection Account pursuant to Section 3.05(v). The foregoing requirements for
deposit from the Collection Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of late payment charges, bad check fees, prepayment charges that are not
Prepayment Charges, Originator Prepayment Charge Payment Amounts or Servicer
Prepayment Charge Payment Amounts, assumption fees and other similar fees need
not be deposited by the Servicer in the Collection Account. Amounts deposited in
the Collection Account in error may be withdrawn by the Servicer at any time.
(b) On behalf of the Trust Fund, the Trustee shall establish and
maintain one or more accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of the Certificateholders. On behalf of
the Trust Fund, the Servicer shall deliver to the Trustee in immediately
available funds for deposit in the Distribution Account by 1:00 p.m. New York
time on the Servicer Remittance Date, (i) that portion of the Available Funds
(calculated without regard to the references in the definition thereof to
amounts that may be deposited to the Distribution Account from a different
source as provided herein) then on deposit in the Collection Account, (ii) the
amount of all Prepayment Charges collected by the Servicer in connection with
the Principal Prepayment of any of the Mortgage Loans then on deposit in the
Collection Account (other than any such Prepayment Charges received after the
related Prepayment Period) and (iii) any Originator Prepayment Charge Payment
Amount or any Servicer Prepayment Charge Payment Amount. Amounts in the
Distribution Account shall be
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deemed to be held on behalf of the related REMICs and the Grantor Trust in
accordance with the REMIC distributions set forth in Section 4.08. The Trustee
shall be entitled to withdraw from the Distribution Account any amounts owing to
it pursuant to Section 8.05 and Section 9.01(c) prior to the distribution of any
amounts on deposit to the Certificateholders; provided, however, in the case of
amounts owing to it other than the Trustee Fee, the Trustee shall provide the
Depositor and the Servicer with a written account of such amounts five Business
Days prior to withdrawing such funds. In connection with any failure by the
Servicer to make any remittance required to be made by the Servicer to the
Distribution Account on the day and by the time such remittance is required to
be made under the terms of this Section 3.04(b) (without giving effect to any
grace or cure period), the Servicer shall pay to the Trustee for the account of
the Trustee interest at the prime rate of United States money center commercial
banks as published in The Wall Street Journal (Northeast edition) on any amount
not timely remitted from and including the day such remittance was required to
be made to, but not including, the day on which such remittance was actually
made.
(c) Funds in the Collection Account may be invested in Eligible
Investments in accordance with the provisions set forth in Section 3.25. The
Servicer shall give notice to the Trustee of the location of the Collection
Account maintained by it when established and prior to any change thereof. The
Trustee shall give notice to the Servicer and the Depositor of the location of
the Distribution Account when established and prior to any change thereof.
(d) In the event the Servicer shall deliver to the Trustee for deposit
in the Distribution Account any amount not required to be deposited therein, it
may at any time request that the Trustee withdraw such amount from the
Distribution Account and remit to the Servicer any such amount, any provision
herein to the contrary notwithstanding. In addition, the Servicer shall deliver
to the Trustee from time to time for deposit, and the Trustee shall so deposit,
in the Distribution Account in respect of REMIC 1:
(i) any Advances, as required pursuant to Section 4.07;
(ii) any Stayed Funds, as soon as permitted by the federal bankruptcy
court having jurisdiction in such matters;
(iii) any amounts required to be deposited in the Distribution Account
by the Servicer pursuant to Sections 2.03, 3.04, 3.13, 3.15, 3.16, 3.23,
3.24, 4.07 or 10.01; and
(iv) any amounts required to be deposited by the Servicer pursuant to
Section 3.11 in connection with the deductible clause in any blanket hazard
insurance policy, such deposit being made from the Servicer's own funds,
without reimbursement therefor.
(e) Promptly upon receipt of any Stayed Funds, whether from the
Servicer, a trustee in bankruptcy, or federal bankruptcy court or other source,
the Trustee shall notify the Servicer of such receipt and deposit such funds in
the Distribution Account, subject to withdrawal thereof as permitted hereunder.
In addition, the Trustee shall deposit in the Distribution Account any amounts
required to be deposited pursuant to Section 3.25(b) in
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connection with losses realized on Eligible Investments with respect to funds
held in the Distribution Account.
(f) Any Prepayment Charges, Originator Prepayment Charge Payment
Amounts and Servicer Prepayment Charge Payment Amounts deposited pursuant to
Section 3.04(a)(vii) shall not be assets of any REMIC created hereunder, but
shall be considered assets of the Grantor Trust held by the Trustee for the
benefit of the Class P Certificateholders.
(g) (i) The Trustee shall establish and maintain the Reserve Account,
held in trust for the benefit of the Holders of the Offered Certificates. The
Trustee shall deposit in the Reserve Account on the date received by it, any
Yield Maintenance Agreement Payment received from the Yield Maintenance
Agreement Provider for the related Distribution Date. On each Distribution Date,
the Trustee shall withdraw from the Reserve Account any Yield Maintenance
Agreement Payment and apply it in the following order of priority:
(A) to the Offered Certificates, any remaining unpaid Cap
Carryover Amounts for such Classes for such Distribution Date (after
distributions pursuant to Section 4.02(b)(xxi) hereof), in each case
only up to the Cap Amount for the related Class, distributed in the
following order of priority:
(1) concurrently, to the Class A Certificates, pro rata,
based on the Cap Amount for each such Class; and
(2) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5 and Class M-6 Certificates, in that order;
and
(B) to the Offered Certificates, any remaining unpaid Cap
Carryover Amounts for such Classes for such Distribution Date (after
distributions pursuant to Section 4.02(b)(xxi) hereof and clause (A)
above) distributed in the following order of priority:
(1) concurrently, to the Class A Certificates, pro rata,
based on the related unpaid Cap Carryover Amount for each such
Class; and
(2) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5 and Class M-6 Certificates, in that order;
and
(C) to the Class CE Certificates, any remaining amount on deposit
in the Reserve Account.
(ii) The Trustee shall account for the Reserve Account as an asset of
a grantor trust under subpart E, part I of subchapter J of the Code and not
an asset of any REMIC created pursuant to this Agreement. The beneficial
owner of the Reserve Account is the Class CE Certificateholder. For all
federal tax purposes, amounts transferred or reimbursed by REMIC 2 to the
Reserve Account shall be treated as distributions by the Trustee to the
Class CE Certificateholder.
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(iii) Any Cap Carryover Amounts paid by the Trustee pursuant to this
Section 3.04(g) to the Offered Certificates shall be accounted for by the
Trustee as amounts paid first to the Class CE Certificates and then to the
respective Class or Classes of Offered Certificates. In addition, the
Trustee shall account for the Offered Certificates' rights to receive
payments of Cap Carryover Amounts as rights in a limited recourse interest
rate cap contract written by the Class CE Certificates in favor of the
Offered Certificates.
(iv) For federal tax return and information reporting, the right of
the Holders of the Offered Certificates to receive payments under the Yield
Maintenance Agreement in respect of any Yield Maintenance Agreement
Payments shall be assigned a value of zero.
Section 3.05 Permitted Withdrawals From the Collection Account.
The Servicer may, from time to time, withdraw from the Collection
Account for the following purposes:
(i) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be so remitted pursuant to Section 3.04(b) or
permitted to be so remitted pursuant to the first sentence of Section
3.04(d);
(ii) to reimburse itself for (a) any unreimbursed Advances to the
extent of amounts received which represent Late Collections (net of the
related Servicing Fees) of Monthly Payments, Liquidation Proceeds and
Insurance Proceeds on Mortgage Loans with respect to which such Advances
were made in accordance with the provisions of Section 4.07, and (b) any
unreimbursed Advances with respect to the final liquidation of a Mortgage
Loan that are Nonrecoverable Advances, but only to the extent that Late
Collections, Liquidation Proceeds, Insurance Proceeds and Condemnation
Proceeds received with respect to such Mortgage Loan are insufficient to
reimburse the Servicer for such unreimbursed Advances;
(iii) to reimburse itself for (a) any unpaid Servicing Fees not
retained pursuant to Section 3.04(a)(ii) and any unreimbursed Servicing
Advances with respect to each Mortgage Loan, but only to the extent of any
Late Collections, Liquidation Proceeds, Insurance Proceeds and Condemnation
Proceeds received with respect to such Mortgage Loan, (b) any Servicing
Advances with respect to the final liquidation of a Mortgage Loan that are
Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Servicer for Servicing
Advances and (c) any unpaid Servicing Fees related to any second lien
Mortgage Loan to the extent not recoverable under clause (a);
(iv) to reimburse itself for any amounts paid or expenses incurred
pursuant to Section 3.03 (and not otherwise previously reimbursed);
(v) to pay to itself as servicing compensation (a) any interest earned
on funds in the Collection Account (all such interest to be withdrawn
monthly not later than each
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Servicer Remittance Date) and (b) the Servicing Fee from that portion of
any payment or recovery as to interest to a particular Mortgage Loan;
(vi) to pay or reimburse itself for any amounts payable or paid
pursuant to Section 6.03 (and not otherwise previously reimbursed); and
(vii) to clear and terminate the Collection Account upon the
termination of this Agreement.
The foregoing requirements for withdrawal from the Collection Account
shall be exclusive. In the event the Servicer shall deposit in the Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Collection Account, any provision herein to the
contrary notwithstanding.
Section 3.06 Establishment of Escrow Accounts; Deposits in Escrow
Accounts.
The Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan which constitute Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts. A copy of such letter agreement shall be furnished to the Trustee upon
request. The Escrow Account shall be an Eligible Account.
The Servicer shall deposit in the Escrow Account or Accounts on a
daily basis within one Business Day of receipt, and retain therein, (i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose of
effecting timely payment of any such items as required under the terms of this
Agreement, and (ii) all Insurance Proceeds which are to be applied to the
restoration or repair of any Mortgaged Property. The Servicer shall make
withdrawals therefrom only to effect such payments as are required under this
Agreement, and for such other purposes as shall be set forth in, or in
accordance with, Section 3.07. The Servicer shall be entitled to retain any
interest paid on funds deposited in the Escrow Account by the depository
institution other than interest on escrowed funds required by law to be paid to
the Mortgagor and, to the extent required by the related Mortgage Loan or
Applicable Regulations, the Servicer shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account is non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 3.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account may be made by the Servicer (i) to
effect timely payments of ground rents, taxes, assessments, water rates, fire,
flood and hazard insurance premiums and comparable items in a manner and at a
time that assures that the lien priority of the Mortgage is not jeopardized (or,
with respect to the payment of taxes, in a manner and at a time that avoids the
loss of the Mortgaged Property due to a tax sale or the foreclosure as a result
of a tax lien), (ii) to reimburse the Servicer for any Servicing Advance made by
the Servicer with respect to a related Mortgage Loan but only from amounts
received on the related Mortgage Loan which represent late payments or Late
Collections of Escrow Payments thereunder with respect to taxes and assessments
and with respect to hazard insurance, (iii) to refund to the Mortgagor any funds
as may be determined to be overages, (iv) for transfer to the Collection
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Account in accordance with the terms of this Agreement, (v) for application to
restoration or repair of the Mortgaged Property, (vi) to pay to the Servicer, or
to the Mortgagor to the extent required by the related Mortgage Loan or
Applicable Regulations, any interest paid on the funds deposited in the Escrow
Account, (vii) to clear and terminate the Escrow Account on the termination of
this Agreement, or (viii) to transfer to the Collection Account any insurance
proceeds. As part of its servicing duties, the Servicer shall pay to the
Mortgagor interest on funds in the Escrow Account, to the extent required by the
related Mortgage Loan or Applicable Regulations, and to the extent that interest
earned on funds in the Escrow Account is insufficient, shall pay such interest
from its own funds, without any reimbursement therefor.
In the event the Servicer shall deposit in the Escrow Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Escrow Account, any provision herein to the contrary
notwithstanding.
Section 3.08 Payment of Taxes, Insurance and Other Charges;
Collections Thereunder.
(a) The Servicer shall enforce the obligations under each
paid-in-full, life-of-loan tax service contract in effect with respect to each
first lien Mortgage Loan (each, a "Tax Service Contract"). Each Tax Service
Contract shall be assigned to the Trustee, or a successor Servicer at the
Servicer's expense in the event that the servicer is terminated as Servicer of
the related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) above, with respect to each Mortgage Loan that provides for Escrow
Payments, the Servicer shall maintain accurate records reflecting the status of
ground rents, taxes, assessments, water rates and other charges which are or may
become a lien upon the Mortgaged Property and the status of fire, flood and
hazard insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment of
taxes, assessments, hazard insurance premiums, and comparable items in a manner
and at a time that assures that the lien priority of the Mortgage is not
jeopardized (or, with respect to the payment of taxes, in a manner and at a time
that avoids the loss of the Mortgaged Property due to a tax sale or the
foreclosure as a result of a tax lien). To the extent that any Mortgage does not
provide for Escrow Payments, the Servicer (i) shall determine whether any such
payments are made by the Mortgagor in a manner and at a time that is necessary
to avoid the loss of the Mortgaged Property due to a tax sale or the foreclosure
as a result of a tax lien and (ii) shall ensure that all insurance required to
be maintained on the Mortgaged Property pursuant to this Agreement is
maintained. If any such payment has not been made and the Servicer receives
notice of a tax lien with respect to the Mortgage Loan being imposed, the
Servicer will, promptly and to the extent required to avoid loss of the
Mortgaged Property, advance or cause to be advanced funds necessary to discharge
such lien on the Mortgaged Property. The Servicer assumes full responsibility
for the payment of all such bills and shall effect payments of all such bills
irrespective of the Mortgagor's faithful performance in the payment of same or
the making of Escrow Payments and shall make Servicing Advances from its own
funds to effect such payments.
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Section 3.09 Transfer of Accounts.
The Servicer may transfer the Collection Account and the Escrow
Account to a different depository institution from time to time. Upon such
transfer, the Servicer shall deliver to the Trustee and the Depositor, a
certification or letter agreement, as the case may be, to the extent required
pursuant to Sections 3.04 and 3.06.
Section 3.10 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage as is customary in the area where
the Mortgaged Property is located in an amount which is at least equal to the
lesser of (i) the amount necessary to fully compensate for any damage or loss to
the improvements which are a part of such property on a replacement cost basis,
(ii) the Principal Balance of the Mortgage Loan and (iii) the maximum insurable
value of the improvements securing such Mortgage Loan, in each case in an amount
not less than such amount as is necessary to prevent the Mortgagor and/or the
Mortgagee from becoming a co-insurer. If the Mortgaged Property is in an area
identified in the Federal Register by the Flood Emergency Management Agency as
having special flood hazards and flood insurance has been made available, the
Servicer will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (i) the Principal Balance of the Mortgage
Loan, (ii) the maximum insurable value of the improvements securing such
Mortgage Loan or (iii) the maximum amount of insurance which is available under
the National Flood Insurance Act of 1968, as amended. The Servicer shall also
maintain on the REO Property for the benefit of the Certificateholders, (x) fire
and hazard insurance with extended coverage in an amount which is at least equal
to the lesser of (i) 100% of the maximum insurable value of the improvements
securing the Mortgage Loan and (ii) the outstanding Principal Balance of the
Mortgage Loan at the time it became an REO Property, (y) public liability
insurance and, (z) to the extent required and available under the National Flood
Insurance Act of 1968, as amended, flood insurance in an amount as provided
above. Any amounts collected by the Servicer under any such policies other than
amounts to be deposited in the Escrow Account and applied to the restoration or
repair of the Mortgaged Property or REO Property, or released to the Mortgagor
in accordance with the Servicer's normal servicing procedures, shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.05. It is understood and agreed that no earthquake or other additional
insurance is required to be maintained by the Servicer or the Mortgagor or
maintained on property acquired in respect of the Mortgage Loan, other than
pursuant to such Applicable Regulations as shall at any time be in force and as
shall require such additional insurance. All such policies shall be endorsed
with standard mortgagee clauses with loss payable to the Servicer and shall
provide for at least thirty days prior written notice of any cancellation,
reduction in the amount of or material change in coverage to the Servicer. The
Servicer shall not interfere with the Mortgagor's freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Servicer
shall not accept any such insurance policies from insurance companies unless
such companies are acceptable under the ▇▇▇▇▇▇ ▇▇▇ MBS Selling and Servicing
Guide or the ▇▇▇▇▇▇▇ Mac Servicer's Guide and are licensed to do business in the
state wherein the property subject to the policy is located.
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Section 3.11 Maintenance of Mortgage Impairment Insurance Policy.
In the event that the Servicer shall obtain and maintain a blanket
policy issued by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ MBS Selling and
Servicing Guide or the ▇▇▇▇▇▇▇ Mac Servicer's Guide insuring against hazard
losses on all of the Mortgage Loans, then, to the extent such policy provides
coverage in an amount equal to the amount required pursuant to Section 3.10 and
otherwise complies with all other requirements of Section 3.10, it shall
conclusively be deemed to have satisfied its obligations as set forth in Section
3.10, it being understood and agreed that such policy may contain a deductible
clause, in which case the Servicer shall, in the event that there shall not have
been maintained on the related Mortgaged Property or REO Property a policy
complying with Section 3.10, and there shall have been a loss which would have
been covered by such policy, deliver to the Trustee for deposit in the
Distribution Account the amount not otherwise payable under the blanket policy
because of such deductible clause, which amount shall not be reimbursable to the
Servicer from the Trust Fund. In connection with its activities as servicer of
the Mortgage Loans, the Servicer agrees to prepare and present, on behalf of the
Trustee, claims under any such blanket policy in a timely fashion in accordance
with the terms of such policy. Upon request of the Trustee, the Servicer shall
cause to be delivered to the Trustee a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without thirty days prior written notice to
the Trustee.
Section 3.12 Fidelity Bond, Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket fidelity
bond (the "Fidelity Bond") and an errors and omissions insurance policy, with
broad coverage with financially responsible companies on all officers, employees
or other persons acting in any capacity with regard to the Mortgage Loans to
handle funds, money, documents and papers relating to the Mortgage Loans. The
Fidelity Bond and errors and omissions insurance shall be in the form of the
Mortgage Banker's Blanket Bond and shall protect and insure the Servicer against
losses, including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons. Such Fidelity Bond shall also protect and insure
the Servicer against losses in connection with the failure to maintain any
insurance policies required pursuant to this Agreement and the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 3.12 requiring the
Fidelity Bond and errors and omissions insurance shall diminish or relieve the
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae MBS
Selling and Servicing Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Servicer's
Guide. Upon request of the Trustee, the Servicer shall cause to be delivered to
the requesting party a certified true copy of the Fidelity Bond and errors and
omissions insurance policy and a statement from the surety and the insurer that
such Fidelity Bond and errors and omissions insurance policy shall in no event
be terminated or materially modified without thirty days' prior written notice
to the Trustee.
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Section 3.13 Title, Management and Disposition of REO Property.
(a) In the event that title to a Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken (pursuant to a limited power of attorney to be provided by the
Trustee to the Servicer) in the name of the Trustee or its nominee, on behalf of
the Certificateholders, or in the event the Trustee is not authorized or
permitted to hold title to real property in the state where the REO Property is
located, or would be adversely affected under the "doing business" or tax laws
of such state by so holding title, the deed or certificate of sale shall be
taken in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Servicer from an attorney duly licensed to
practice law in the state where the REO Property is located. Any Person or
Persons holding such title other than the Trustee shall acknowledge in writing
that such title is being held as nominee for the benefit of the Trustee.
(b) In the event that the Trust Fund acquires any REO Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Servicer shall use its best efforts to dispose of the REO
Property as promptly as is practically consistent with protecting the
Certificateholders' interests and shall dispose of such REO Property in any
event before the end of the third taxable year beginning after the year of its
acquisition by the Trust Fund for purposes of Section 860G(a)(8) of the Code
unless the Servicer has received a grant of extension from the Internal Revenue
Service of the above-mentioned grace period such that the holding by the Trust
Fund of such REO Property subsequent to such period will not: (i) result in the
imposition of any tax on "prohibited transactions" as defined in Section 860F of
the Code; or (ii) cause any REMIC constituting any part of the Trust Fund to
fail to qualify as a REMIC at any time that any Certificates are outstanding, in
which case the Trust Fund may continue to hold such REO Property.
Subject to compliance with Applicable Regulations as shall at any time
be in force, and notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or allowed to continue to
be rented) or otherwise used by or on behalf of the Trust Fund in such a manner
or pursuant to any terms that would: (i) cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code; or (ii) subject any REMIC constituting part of the Trust Fund to the
imposition of any federal income taxes on the income earned from such REO
Property, including any taxes imposed by reason of Sections 860F or 860G(c) of
the Code, unless the Servicer has agreed to indemnify and hold harmless the
Trust Fund with respect to the imposition of any such taxes.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Certificateholders and the Trust Fund solely for the purpose of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by the related REMIC of
any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code, or any "net income from foreclosure property" which
is subject to taxation under the REMIC Provisions. The Servicer shall cause each
REO Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least annually thereafter. The
Servicer shall make or cause to be made a written or electronic report of
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each such inspection. Such reports shall be retained in the Mortgage File and
copies thereof shall be forwarded by the Servicer to the Trustee upon request.
The Servicer shall attempt to sell the same (and may temporarily rent the same)
on such terms and conditions as the Servicer deems to be in the best interest of
the Certificateholders and the Trust Fund.
With respect to each REO Property, the Servicer shall account
separately for each REO Property with respect to all funds collected and
received in connection with the operation of such REO Property.
The Servicer shall deposit or cause to be deposited, on a daily basis,
within one Business Day of receipt, in the Collection Account, all revenues
received with respect to each REO Property and shall withdraw therefrom funds
necessary for the proper operation, management and maintenance of the related
REO Property, including the cost of maintaining any hazard insurance pursuant to
Section 3.10 hereof and the fees of any managing agent acting on behalf of the
Servicer.
The Servicer shall furnish to the Trustee, on each Servicer Remittance
Date, an operating statement for each REO Property covering the operation of
each REO Property for the previous month. Such operating statement shall be
accompanied by such other information as the Trustee shall reasonably request.
Each REO Disposition shall be carried out by the Servicer at such
price and upon such terms and conditions as the Servicer deems to be in the best
interest of the Certificateholders. If as of the date title to any REO Property
was acquired by the Servicer there were outstanding unreimbursed Servicing
Advances, Servicing Fees and Advances with respect to the REO Property, the
Servicer, upon an REO Disposition of such REO Property, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances, Servicing Fees
and Advances from proceeds received in connection with such REO Disposition. The
proceeds from the REO Disposition, net of any payment to the Servicer as
provided above, shall be deposited in the Collection Account for transfer to the
Distribution Account on the succeeding Servicer Remittance Date in accordance
with Section 3.04(a)(vi).
Any REO Disposition shall be for cash only (unless changes in the
REMIC Provisions made subsequent to the Startup Day allow a sale for other
consideration and an Opinion of Counsel is obtained by the Servicer to the
effect that such sale shall not cause any REMIC constituting part of the Trust
Fund to fail to qualify as a REMIC).
Section 3.14 Due-on-Sale Clauses; Assumption and Substitution
Agreements.
When a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, the Servicer shall, to the extent it has knowledge of such conveyance
or prospective conveyance, exercise its rights to accelerate the maturity of the
related Mortgage Loan under any "due-on-sale" clause contained in the related
Mortgage or Mortgage Note; provided, however, that the Servicer shall not
exercise any such right if the "due-on-sale" clause, in the reasonable belief of
the Servicer, is not enforceable under applicable law. An Opinion of Counsel at
the expense of the Servicer (which expense shall constitute a Servicing Advance)
delivered to the Trustee and the Depositor shall conclusively establish the
reasonableness of the Servicer's belief
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that any "due-on-sale" clause is not enforceable under applicable law. In such
event, the Servicer shall make reasonable efforts to enter into an assumption
and modification agreement with the Person to whom such property has been or is
about to be conveyed, pursuant to which such Person becomes liable under the
Mortgage Note and, unless prohibited by applicable law or the Mortgage, the
Mortgagor remains liable thereon. If the foregoing is not permitted under
applicable law, the Servicer is authorized to enter into a substitution of
liability agreement with such Person, pursuant to which the original Mortgagor
is released from liability and such Person is substituted as Mortgagor and
becomes liable under the Note; provided that no such substitution will be
permitted unless such person satisfies underwriting criteria customarily used by
the Servicer in servicing similar mortgage loans and has a credit score at least
equal to that of the original Mortgagor. In addition to the foregoing, the
Servicer shall not be required to enforce any "due-on-sale" clause if the
reasonable judgment of the Servicer, entering into an assumption and
modification agreement with a Person to whom such property shall be conveyed and
releasing the original Mortgagor from liability would be in the best interests
of the Certificateholders. The Mortgage Loan, as assumed, shall conform in all
respects to the requirements, representations and warranties of this Agreement.
The Servicer shall not take or enter into any assumption and modification
agreement, however, unless (to the extent practicable under the circumstances)
it shall have received confirmation, in writing, of the continued effectiveness
of any applicable hazard insurance policy. The Servicer shall notify the Trustee
that any such assumption or substitution agreement has been completed by
forwarding to the Trustee the original copy of such assumption or substitution
agreement (indicating the Mortgage File to which it relates) which copy shall be
added by the Trustee to the related Mortgage File and which shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. The Servicer shall
be responsible for recording any such assumption or substitution agreements. In
connection with any such assumption or substitution agreement, the Monthly
Payment on the related Mortgage Loan shall not be changed but shall remain as in
effect immediately prior to the assumption or substitution, the stated maturity
or outstanding principal amount of such Mortgage Loan shall not be changed nor
shall any required monthly payments of principal or interest be deferred or
forgiven. Any fee collected by the Servicer for consenting to any such
conveyance or entering into an assumption or substitution agreement shall be
retained by or paid to the Servicer as additional servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever. For purposes of
this Section 3.14, the term "assumption" is deemed to include a sale of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section 3.15 Superior Liens.
Where permitted by local law and where the senior lienholder is
required to notify a junior lienholder be named as a party defendant in
foreclosure proceedings in order to foreclose such junior lienholder's equity of
redemption, the Servicer shall file (or cause to be filed) a request for notice
of any action by a superior lienholder under a Superior Lien for the protection
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of the Trust's interest in the related second lien Mortgage Loan, the expense of
which shall constitute a Servicing Advance. In jurisdictions where the senior
lienholder is not required to notify a junior lienholder be named as party
defendant in foreclosure proceedings in order to foreclose on such lienholder,
the Servicer shall cause the Superior Lien relating to each second lien Mortgage
Loan to be tracked to protect the Trust's interest in such second lien Mortgage
Loan.
If the Servicer is notified that any superior lienholder has
accelerated or intends to accelerate the obligations secured by the Superior
Lien, or has declared or intends to declare a default under the mortgage or the
promissory note secured thereby, or has filed or intends to file an election to
have the related Mortgaged Property sold or foreclosed, the Servicer shall take,
on behalf of the Trust, whatever actions are necessary to protect the interests
of the Trust in accordance with Servicing Standards. The Servicer shall not make
a Servicing Advance with respect thereto except to the extent that it determines
in its reasonable good faith judgment that such advance would be recoverable
from Liquidation Proceeds on the related second lien Mortgage Loan and in no
event in an amount that is greater than the then outstanding Principal Balance
of the related second lien Mortgage Loan.
Section 3.16 Optional Purchases of Mortgage Loans by Servicer.
The Servicer may, at its option, purchase a Mortgage Loan or REO
Property which becomes 90 or more days Delinquent or for which the Servicer has
accepted a deed in lieu of foreclosure. Prior to purchase pursuant to this
Section 3.16, the Servicer shall be required to continue to make monthly
advances pursuant to Section 4.07. The Servicer shall not use any procedure in
selecting Mortgage Loans to be purchased which is materially adverse to the
interests of the Certificateholders. The Servicer shall purchase such Delinquent
Mortgage Loan or REO Property at a price equal to the Purchase Price. The
Servicer will not be entitled to any Servicing Fee with respect to any such
purchased Mortgage Loan. Any such purchase of a Mortgage Loan or REO Property
pursuant to this Section 3.16 shall be accomplished by delivery to the Trustee
for deposit in the Distribution Account of the amount of the Purchase Price. The
Trustee shall immediately effectuate the conveyance of such delinquent Mortgage
Loan or REO Property to the Servicer to the extent necessary, including the
prompt delivery of all documentation to the Servicer.
Section 3.17 Trustee to Cooperate; Release of Files.
(a) Upon the payment in full of any Mortgage Loan (including any
liquidation of such Mortgage Loan through foreclosure or otherwise, or the
receipt by the Servicer of a notification that payment in full will be escrowed
in a manner customary for such purposes), the Servicer shall deliver to the
Trustee, in written form (with two executed copies) or electronic form, of a
completed "Request for Release" in the form of Exhibit E. Upon receipt of such
Request for Release of Documents, the Trustee shall promptly release the related
Mortgage File within three (3) Business Days via overnight mail delivery (at the
expense of the Servicer), in trust, to (i) the Servicer, or (ii) such other
party identified in the related Request for Release. Upon any such payment in
full, or the receipt of such notification that such funds have been placed in
escrow, the Trustee hereby authorizes and empowers the Servicer to execute an
instrument of satisfaction (or Assignment without recourse) regarding the
Mortgaged Property
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relating to such Mortgage, which instrument of satisfaction or assignment shall
be delivered to the Person or Persons entitled thereto against receipt therefor
of payment in full, it being understood and agreed that no expense incurred in
connection with such instrument of satisfaction or assignment, as the case may
be, shall be chargeable to the Collection Account. In lieu of executing any such
satisfaction or assignment, as the case may be, the Servicer may prepare and
submit to the Trustee a satisfaction (or assignment without recourse, if
requested by the Person or Persons entitled thereto) in form for execution by
the Trustee with all requisite information completed by the Servicer; in such
event, the Trustee shall execute and acknowledge such satisfaction or
assignment, as the case may be, and deliver the same with the related Mortgage
File, as aforesaid.
(b) From time to time and as appropriate in the servicing of any
Mortgage Loan, including, without limitation, foreclosure or other comparable
conversion of a Mortgage Loan or collection under any insurance policy relating
to a Mortgage Loan, the Trustee shall (except in the case of the payment or
liquidation pursuant to which the related Mortgage File is released to an escrow
agent or an employee, agent or attorney of the Trustee), upon written request of
the Servicer and delivery to the Trustee, in written form (with two executed
copies) or electronic form, of a "Request for Release" in the form of Exhibit E
signed by a Servicing Officer, release the related Mortgage File to the Servicer
within three (3) Business Days and shall execute such documents as shall be
necessary to the prosecution of any such proceedings, including, without
limitation, an assignment without recourse of the related Mortgage to the
Servicer. Such receipt shall obligate the Servicer to return the Mortgage File
to the Trustee when the need therefor by the Servicer no longer exists unless
the Mortgage Loan shall be liquidated, in which case, upon receipt of a Request
for Release evidencing such liquidation, the receipt shall be released by the
Trustee to the Servicer.
(c) Subject to Section 3.01, the Servicer shall have the right to
accept applications of Mortgagors for consent to (i) partial releases of
Mortgages, (ii) alterations, (iii) removal, demolition or division of properties
subject to Mortgages, (iv) modifications, and (v) second mortgage subordination
agreements. No application for approval shall be considered by the Servicer
unless: (w) it has received an Opinion of Counsel, addressed to the Trustee
(which opinion shall not be an expense of the Trustee or the Trust Fund) that
such sale, disposition, substitution, acquisition or contribution will not
affect adversely the status of any REMIC constituting part of the Trust Fund as
a REMIC or cause any REMIC constituting part of the Trust Fund to be subject to
a tax on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions; (x) the provisions of the related Note and Mortgage have been
complied with; (y) the Combined Loan-to-Value Ratio and debt-to-income ratio
after any release does not exceed the maximum Combined Loan-to-Value Ratio and
debt-to-income ratio established in accordance with the underwriting standards
of the Mortgage Loans; and (z) the lien priority of the related Mortgage is not
affected. Upon receipt by the Trustee of a Servicing Officer's certificate
setting forth the action proposed to be taken in respect of a particular
Mortgage Loan and certifying that the criteria set forth in the immediately
preceding sentence have been satisfied, the Trustee shall execute and deliver to
the Servicer the consent or partial release so requested by the Servicer. A
proposed form of consent or partial release, as the case may be, shall accompany
any Servicing Officer's certificate delivered by the Servicer pursuant to this
paragraph.
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Section 3.18 Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer shall,
with respect to each Mortgage Loan, be entitled to retain from deposits to the
Collection Account and from Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds related to such Mortgage Loan, the Servicing Fee with respect
to each Mortgage Loan. In addition, the Servicer shall be entitled to recover
unpaid Servicing Fees out of related late collections and as otherwise permitted
under Section 3.05. The right to receive the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Servicer's responsibilities and obligations under this Agreement.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, insufficient fund fees, reconveyance
fees and other similar fees and charges (other than Prepayment Charges) shall be
retained by the Servicer only to the extent such fees or charges are received by
the Servicer. The Servicer shall also be entitled pursuant to Section 3.05 to
withdraw from the Collection Account, as additional servicing compensation,
interest or other income earned on deposits therein on its behalf.
(c) The Servicer shall be required to pay all expenses incurred by it
in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.11 and the fees and expenses of independent accountants and any agents
appointed by the Servicer), and shall not be entitled to reimbursement therefor
from the Trust Fund except as specifically provided in Section 3.05.
Section 3.19 Annual Statement as to Compliance.
(a) The Servicer, at its own expense, will deliver to the Trustee and
the Depositor, not later than February 28 of each calendar year commencing in
2004, a Servicing Officer's certificate stating, as to each signer thereof, that
(i) a review of the activities of the Servicer during such preceding fiscal year
and of performance under this Agreement has been made under such officers'
supervision, and (ii) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement for
such year, or, if there has been a default in the fulfillment of all such
obligations, specifying each such default known to such officers and the nature
and status thereof including the steps being taken by the Servicer to remedy
such default.
(b) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and their receipt of such shall not
constitute constructive notice of any information contained therein or
determinable, from information contained therein, including the Servicer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 3.20 Annual Independent Certified Public Accountants' Reports.
(a) On or before February 28 of each calendar year commencing in 2004,
the Servicer, at its expense, shall cause a nationally recognized firm of
independent certified public accountants to furnish to the Trustee, the
Depositor and each Rating Agency, a report stating that (i) it has obtained a
letter of representation regarding certain matters from the management of the
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Servicer which includes an assertion that the Servicer has complied with certain
minimum residential mortgage loan servicing standards, identified in either the
Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America or the Audit Program for Mortgages
serviced by ▇▇▇▇▇▇▇ Mac, with respect to the servicing of residential mortgage
loans during the most recently completed fiscal year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. Copies of such statement shall be
provided by the Trustee to any Certificateholder upon request, at the Servicer's
expense, provided that such statement is delivered by the Servicer to the
Trustee.
(b) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and their receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Servicer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 3.21 Access to Certain Documentation and Information Regarding
the Mortgage Loans.
The Servicer shall provide to the Depositor, the Trustee,
Certificateholders that are federally insured savings and loan associations, the
Office of Thrift Supervision, the Office of the Comptroller of the Currency, the
FDIC and the supervisory agents and examiners of each of the foregoing (which,
in the case of supervisory agents and examiners, may be required by applicable
state and federal regulations) access to the available documentation regarding
the Mortgage Loans, such access being afforded without charge but only upon
reasonable advance request and during normal business hours at the offices of
the Servicer designated by it.
Section 3.22 Duties of Credit Risk Manager.
For and on behalf of the Depositor, the Credit Risk Manager shall
provide reports and recommendations as to loss mitigation activities concerning
Mortgage Loans that are past due, are in default, as to which there has been
commencement of foreclosure, as to which there has been forbearance in exercise
of remedies, as to which any obligor is the subject of bankruptcy, receivership,
or an arrangement of creditors, or which have become REO Properties. Such
reports and recommendations will be based upon information provided pursuant to
the Credit Risk Management Agreement. The Credit Risk Manager shall look solely
to the Servicer for all information and data (including loss and delinquency
information and data) and loan-level information and data relating to the
servicing of the Mortgage Loans.
The Credit Risk Manager may be removed at any time by a vote of
Certificateholders holding Certificates evidencing at least 66 2/3% of the
aggregate Voting Rights of the Certificates. After any such termination, the
Credit Risk Manager shall have no further obligations hereunder, and shall no
longer be entitled to the Credit Risk Manager Fee.
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Section 3.23 Obligations of the Servicer in Respect of Compensating
Interest.
Not later than the close of business on each Servicer Remittance Date,
the Servicer shall deliver to the Trustee for deposit in the Distribution
Account an amount ("Compensating Interest") equal to the lesser of (A) the
aggregate of the Prepayment Interest Shortfalls on the Mortgage Loans for the
related Distribution Date resulting from Principal Prepayments on the Mortgage
Loans during the related Prepayment Period and (B) its aggregate Servicing Fee
received in the related Collection Period. The Servicer shall apply Compensating
Interest to offset any Prepayment Interest Shortfalls on the Mortgage Loans. The
Servicer shall not have the right to reimbursement for any amounts remitted to
the Trustee in respect of Compensating Interest. Such amounts so remitted shall
be included in the Available Funds and distributed therewith on the next
Distribution Date. The Servicer shall not be obligated to pay Compensating
Interest with respect to Relief Act Interest Shortfalls.
Section 3.24 Obligations of the Servicer in Respect of Mortgage
Interest Rates and Monthly Payments.
In the event that a shortfall in any collection on or liability with
respect to any Mortgage Loan results from or is attributable to adjustments to
Mortgage Interest Rates, Monthly Payments or Principal Balances that were made
by the Servicer in a manner not consistent with the terms of the related
Mortgage Note, this Agreement and Applicable Regulations, the Servicer, upon
discovery or receipt of notice thereof, immediately shall deliver to the Trustee
for deposit in the Distribution Account from its own funds the amount of any
such shortfall and shall indemnify and hold harmless the Trust Fund, the
Trustee, the Depositor and any successor servicer in respect of any such
liability. Such indemnities shall survive the termination or discharge of this
Agreement. Notwithstanding the foregoing, this Section 3.24 shall not limit the
ability of the Servicer to seek recovery of any such amounts from the related
Mortgagor under the terms of the related Mortgage Note, as permitted by law.
Section 3.25 Investment of Funds in the Collection Account.
(a) The Servicer may direct any depository institution maintaining the
Collection Account to invest the funds in the Collection Account in one or more
Eligible Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if a Person other than the Trustee is the
obligor thereon, and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
Trustee is the obligor thereon or if such investment is managed or advised by
the Trustee of an Affiliate. All such Eligible Investments shall be held to
maturity, unless payable on demand. Any investment of funds in the Collection
Account shall be made in the name of the Trustee or the Servicer, as applicable
(in its capacity as such) or in the name of a nominee of the Trustee. The
Trustee shall be entitled to sole possession (except with respect to investment
direction of funds held in the Collection Account) over each such investment and
the income thereon, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Trustee or its agent, together
with any document of transfer necessary to transfer title to such investment to
the Trustee or its nominee. In the event amounts on deposit in the Collection
Account are at any
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time invested in an Eligible Investment payable on demand, the Trustee shall at
the direction of the Servicer:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Eligible Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on
such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by a Responsible Officer of the Trustee that
such Eligible Investment would not constitute an Eligible
Investment in respect of funds thereafter on deposit in the
Collection Account.
(b) All income and gain realized from the investment of funds in the
Collection Account shall be for the benefit of the Servicer. The Servicer shall
deposit in the Collection Account or (to the extent funds in the Escrow Account
are invested if permitted by applicable law) the Escrow Account, as applicable,
the amount of any loss incurred in respect of any such Eligible Investment made
with funds in such account immediately upon realization of such loss.
(c) Funds in the Distribution Account shall remain uninvested.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Trustee may and, subject to Section 8.01 and Section 8.02(e),
upon the request of the Holders of Certificates representing more than 50% of
the Voting Rights allocated to any Class of Certificates, shall take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
Section 3.26 Liability of Servicer; Indemnification.
Subject to Section 6.03, the Servicer (except the Trustee if it is
required to succeed the Servicer hereunder) indemnifies and holds the Trustee,
the Depositor and the Trust Fund harmless against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, fees and expenses that the Trustee, the
Depositor and the Trust Fund may sustain in any way related to the failure of
the Servicer to perform its duties and service the Mortgage Loans in compliance
with the Servicing Standard. The Servicer shall immediately notify the Trustee
and the Depositor if a claim is made that may result in such claims, losses,
penalties, fines, forfeitures, legal fees or related costs, judgments, or any
other costs, fees and expenses, and the Servicer shall assume (with the consent
of the Trustee) the defense of any such claim and pay all expenses in connection
therewith, including reasonable counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against the Servicer, the
Trustee, the Depositor and/or the Trust Fund in respect of such claim. The
provisions of this Section 3.26 shall survive the termination of this Agreement
and the payment of the outstanding Certificates.
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Section 3.27 Reports of Foreclosure and Abandonment of Mortgaged
Properties.
Beginning in 2004, the Servicer shall file the reports of foreclosure
and abandonment of any Mortgaged Property required by Section 6050J of the Code
with the Internal Revenue Service on or before the due date for any such report.
Not later than 90 days following the end of each calendar year, beginning in
2004, the Servicer will deliver an Officer's Certificate to the Trustee
certifying its compliance with this Section 3.27. The reports from the Servicer
shall be in form and substance sufficient to meet the reporting requirements
imposed by such Section 6050J.
Section 3.28 Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the securitization that is the subject of this Agreement, the Trust is not
authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell
assets; or
(3) engage in any business or activities.
(b) Notwithstanding any prior termination of this Agreement, each
party hereto agrees that, until after one year and one day following the payment
in full of the last of the Certificates issued hereunder, it shall not
acquiesce, petition or otherwise invoke or cause the Depositor or the Trust to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Depositor or the Trust under any
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Depositor or the Trust or any substantial part of the
property of either, or ordering the winding up or liquidation of the affairs of
the Depositor or the Trust.
Section 3.29 Limitation of Liability of the Credit Risk Manager.
Neither the Credit Risk Manager, nor any of the directors, officers,
employees or agents of the Credit Risk Manager, shall be under any liability to
the Depositor, the Servicer, the Trustee or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, in reliance upon information provided by the
Servicer under the Credit Risk Management Agreement or for errors in judgment;
provided, however, that this provision shall not protect the Credit Risk Manager
or any such person against liability that would otherwise be imposed by reason
of willful malfeasance, bad faith or negligence in its performance of its duties
or by reason of reckless disregard for its obligations and duties under this
Agreement or the applicable Credit Risk Management Agreement. The Credit Risk
Manager and any director, officer, employee or agent of the Credit Risk Manager
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder, and may
rely in good faith upon the
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accuracy of information furnished by the Servicer pursuant to the applicable
Credit Risk Management Agreement in the performance of its duties thereunder and
hereunder.
Section 3.30 No Personal Solicitation.
From and after the Closing Date, the Servicer agrees that it will not
take any action or permit or cause any action to be taken by any of its agents
and Affiliates, or by any independent contractors or independent mortgage
brokerage companies on the Servicer's behalf, to personally, by telephone, mail
or electronic mail, solicit the Mortgagor under any Mortgage Loan for the
purpose of refinancing such Mortgage Loan; provided, that the Servicer and any
of its agents or Affiliates may solicit any Mortgagor for whom the Servicer or
any of its agents or Affiliates has received a request for verification of
mortgage, a request for demand for payoff, a mortgagor initiated written or
verbal communication indicating a desire to prepay the related Mortgage Loan;
provided further, it is understood and agreed that promotions undertaken by the
Servicer or any of its Affiliates which are directed to the general public at
large, including, without limitation, mass mailings based on commercially
acquired mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section, nor is the Servicer nor any of its
agents or Affiliates prohibited from responding to unsolicited requests or
inquiries made by a Mortgagor or an agent of a Mortgagor.
Section 3.31 Periodic Filings.
(a) The Trustee and the Servicer shall reasonably cooperate with the
Depositor in connection with the Trust's satisfying its reporting requirements
under the Exchange Act. Without limiting the generality of the foregoing, the
Trustee shall prepare or cause to be prepared on behalf of the Trust any monthly
Current Reports on Form 8-K (each, a "Monthly Form 8-K") and Annual Reports on
Form 10-K (each, a "Form 10-K") customary for similar securities as required by
the Exchange Act and the rules and regulations of the Securities and Exchange
Commission thereunder, and the Trustee shall sign (other than any Form 10-K) and
file (via the Securities and Exchange Commission's Electronic Data Gathering and
Retrieval System) such Forms on behalf of the Trust. The Depositor hereby grants
to the Trustee a limited power of attorney to execute and file each such
document on behalf of the Depositor. The Depositor shall sign any Form 10-K.
(b) Each Monthly Form 8-K shall be filed by the Trustee within 15 days
after each Distribution Date, including a copy of the Distribution Date
Statement for such Distribution Date as an exhibit thereto. Prior to March 30th
of each year (or such earlier date as may be required by the Exchange Act and
the rules and regulations of the Securities and Exchange Commission), the
Trustee shall file a Form 10-K, in substance as required by applicable law or
applicable Securities and Exchange Commission staff's interpretations. Such Form
10-K shall include as exhibits the Servicer's annual statement of compliance
described under Section 3.19 and the accountant's report described under Section
3.20, in each case, to the extent they have been timely delivered to the
Trustee. If they are not so timely delivered, the Trustee shall file an amended
Form 10-K including such documents as exhibits reasonably promptly after they
are delivered to the Trustee. The Trustee shall have no liability with respect
to any failure to properly prepare or file such periodic reports resulting from
or relating to the Trustee's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or
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bad faith. The Form 10-K shall also include a certification in the form attached
hereto as Exhibit O (the "Certification"), which shall be signed by a senior
officer of the Depositor in charge of securitization. The Depositor shall
deliver the Certification to the Trustee prior to March 15th of each year in
which a Form 10-K is to be filed with respect to the Trust. The Trustee, the
Depositor and the Servicer shall reasonably cooperate to enable the Securities
and Exchange Commission requirements with respect to the Trust to be met in the
event that the Securities and Exchange Commission issues additional interpretive
guidelines or promulgates rules or regulations, or in the event of any other
change of law that would require reporting arrangements or the allocation of
responsibilities with respect thereto, as described in this Section 3.31, to be
conducted or allocated in a different manner.
(c) Not later than fifteen (15) calendar days prior to the latest date
on which the Form 10-K may be timely filed each year, (i) the Trustee shall sign
and deliver to the Depositor a certification (in the form attached hereto as
Exhibit P-1) for the benefit of the Depositor and its officers, directors and
Affiliates (provided, however, that the Trustee shall not undertake an analysis
of the accountant's report attached as an exhibit to the Form 10-K) and (ii) the
Servicer shall sign and deliver to the Depositor a certification (in the form
attached hereto as Exhibit P-2) for the benefit of the Depositor and its
officers, directors and Affiliates. In addition, (i) the Trustee shall also
indemnify and hold harmless the Depositor, each Person, if any, who "controls"
the Depositor within the meaning of the Securities Act, and its officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon any inaccuracy in the
certification provided by the Trustee pursuant to this Section 3.31(c), any
breach of the Trustee's obligations under this Section 3.31(c) or the Trustee's
negligence, bad faith or willful misconduct in connection therewith and (ii) the
Servicer shall indemnify and hold harmless the Depositor, each Person, if any,
who "controls" the Depositor within the meaning of the Securities Act, and its
officers, directors and Affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon any
inaccuracy in the certification provided by the Servicer pursuant to this
Section 3.31(c), any breach of the Servicer's obligations under this Section
3.31(c) or the Servicer's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor and its officers, directors and
Affiliates, then (i) the Trustee agrees that it shall contribute to the amount
paid or payable by the Depositor, its officers, directors or Affiliates as a
result of the losses, claims, damages or liabilities of the Depositor, its
officers, directors or Affiliates in such proportion as is appropriate to
reflect the relative fault of the Depositor and its officers, directors and
Affiliates on the one hand and the Trustee on the other in connection with a
breach of the Trustee's obligations under this Section 3.31(c) or the Trustee's
negligence, bad faith or willful misconduct in connection therewith and (ii) the
Servicer agrees that it shall contribute to the amount paid or payable by the
Depositor, its officers, directors or Affiliates as a result of the losses,
claims, damages or liabilities of the Depositor, its officers, directors or
Affiliates in such proportion as is appropriate to reflect the relative fault of
the Depositor and its officers, directors and Affiliates on the one hand and the
Servicer on the other in connection with a breach of the Servicer's obligations
under this Section 3.31(c) or the Servicer's negligence, bad faith or willful
misconduct in connection therewith. The Servicer hereby acknowledges and agrees
that the Depositor and the
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Trustee are relying on the Servicer's performance of its obligations under
Sections 3.19 and 3.20 in order to perform their respective obligations under
this Section 3.31.
(d) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(e) The obligations set forth in paragraphs (a) through (d) of this
Section shall only apply with respect to periods for which the Trustee is
obligated to file reports on Form 8-K or 10-K pursuant to paragraph (b) of this
Section. The Trustee shall prepare, execute and file with the Securities and
Exchange Commission a Form 15 Suspension Notification with respect to the Trust
prior to January 30 of the first year in which the Trustee is so able to do so,
and thereafter there shall be no further obligations under paragraphs (a)
through (d) of this Section commencing with the fiscal year in which the Form 15
is filed (other than the obligations to be performed in such fiscal year that
relate back to the prior fiscal year).
Section 3.32 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act.
(a) With respect to each Mortgage Loan, the Servicer agrees to fully
furnish, in accordance with ▇▇▇▇▇▇ Mae Guide Announcement 95-19 and the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files to
Equifax, Experian and TransUnion Credit Information Company (three of the credit
repositories) on a monthly basis and agrees it shall report one of the following
statuses each month as follows: new origination, current, delinquent (30-, 60-,
90-days, etc.), foreclosed, or charged-off.
(b) The Servicer shall comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act of 1999 and all applicable regulations promulgated thereunder, relating to
the Mortgage Loans and the related borrowers and shall provide all required
notices thereunder.
ARTICLE IV
FLOW OF FUNDS
Section 4.01 Interest Distributions.
On each Distribution Date, the Trustee shall withdraw from the
Distribution Account the Interest Remittance Amount and apply it in the
following order of priority (based upon the Mortgage Loan information provided
to it in the Remittance Report, upon which the Trustee may conclusively rely),
and the calculations required to be made by the Trustee, to the extent
available:
(i) concurrently, to the Trustee, the Trustee Fee for such
Distribution Date, and to the Credit Risk Manager, the Credit Risk Manager
Fee for such Distribution Date, pro rata;
(ii) concurrently, as follows:
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(a) from the Group 1 Interest Remittance Amount to the Class A-1
Certificates, the applicable Accrued Certificate Interest thereon for
such Distribution Date; and
(b) concurrently, from the Group 2 Interest Remittance Amount to
the Class A-2 and Class A-3 Certificates, pro rata, the applicable
Accrued Certificate Interest thereon for such Distribution Date;
(iii) concurrently, as follows:
(a) from the Group 1 Interest Remittance Amount to the Class A-1
Certificates, the applicable Interest Carry Forward Amount thereon for
such Distribution Date; and
(b) concurrently, from the Group 2 Interest Remittance Amount to
the Class A-2 and Class A-3 Certificates, pro rata, the applicable
Interest Carry Forward Amount thereon for such Distribution Date;
(iv) concurrently, as follows:
(a) if the Group 1 Interest Remittance Amount is insufficient to
pay the Class A-1 Certificates' applicable Accrued Certificate
Interest for such Distribution Date pursuant to Section 4.01(ii)(a)
above, from the remaining Group 2 Interest Remittance Amount, to the
Class A-1 Certificates, to cover such shortfall for such Distribution
Date; and
(b) if the Group 2 Interest Remittance Amount is insufficient to
pay the Class A-2 and Class A-3 Certificates' applicable Accrued
Certificate Interest for such Distribution Date pursuant to Section
4.01(ii)(b) above, concurrently, from the remaining Group 1 Interest
Remittance Amount, to the Class A-2 Certificates and the Class A-3
Certificates, pro rata, to cover such shortfall for such Distribution
Date;
(v) concurrently, as follows:
(a) if the Group 1 Interest Remittance Amount is insufficient to
pay the Class A-1 Certificates' applicable Interest Carry Forward
Amount for such Distribution Date pursuant to Section 4.01(iii)(a)
above, from the remaining Group 2 Interest Remittance Amount, to the
Class A-1 Certificates, to cover such shortfall for such Distribution
Date; and
(b) if the Group 2 Interest Remittance Amount is insufficient to
pay the Class A-2 and Class A-3 Certificates' applicable Interest
Carry Forward Amount for such Distribution Date pursuant to Section
4.01(iii)(b) above, concurrently, from the remaining Group 1 Interest
Remittance Amount, to the Class A-2 Certificates and the Class A-3
Certificates, pro rata, to cover such shortfall for such Distribution
Date;
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(vi) to the Class M-1 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(vii) to the Class M-2 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(viii) to the Class M-3 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(ix) to the Class M-4 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(x) to the Class M-5 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date;
(xi) to the Class M-6 Certificates, the Accrued Certificate Interest
thereon for such Distribution Date; and
(xii) the amount, if any, of the Interest Remittance Amount remaining
after application with respect to the priorities set forth above will be
applied as described under Section 4.02(b) hereof.
Section 4.02 Distributions of Principal and Monthly Excess Cashflow
Amounts.
(a) On each Distribution Date, the Trustee shall make the following
distributions in the following order of priority (based upon the Mortgage Loan
information provided to it in the Remittance Report and the calculations
required to be made by the Trustee), to the extent of the Principal Distribution
Amount:
(i) before the Stepdown Date or with respect to which a Trigger Event
is in effect, sequentially, as follows:
first, concurrently, as follows:
(a) the Group 1 Principal Distribution Amount to the Class A-1
Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and
(b) sequentially, the Group 2 Principal Distribution Amount to
the Class A-2 and Class A-3 Certificates, in that order, until the
Certificate Principal Balance thereof have been reduced to zero;
second, concurrently, as follows:
(a) the Group 2 Principal Distribution Amount remaining after
priority first of this Section 4.02(a)(i), to the Class A-1
Certificates, until the Certificate Principal Balances thereof has
been reduced to zero; and
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(b) sequentially, the Group 1 Principal Distribution Amount
remaining after priority first of this Section 4.02(a)(i), to the
Class A-2 and Class A-3 Certificates, in that order, until the
Certificate Principal Balances thereof have been reduced to zero;
third, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fourth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
fifth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
sixth, to the Class M-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
seventh, to the Class M-5 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
eighth, to the Class M-6 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
ninth, any remaining Principal Distribution Amount will be
distributed as part of the Monthly Excess Cashflow Amount as set forth
in Section 4.02(b).
(ii) on or after the Stepdown Date and as long as a Trigger Event is
not in effect:
first, concurrently, as follows:
(a) the Group 1 Senior Principal Distribution Amount to the Class
A-1 Certificates, until the Certificate Principal Balance thereof has
been reduced to zero; and
(b) sequentially, the Group 2 Senior Principal Distribution
Amount to the Class A-2 and Class A-3 Certificates, in that order,
until the Certificate Principal Balances thereof have been reduced to
zero;
second, concurrently, as follows:
(c) the Group 2 Senior Principal Distribution Amount remaining
after priority first of this Section 4.02(a)(ii), to the Class A-1
Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and
(d) sequentially, the Group 1 Senior Principal Distribution
Amount remaining after priority first of this Section 4.02(a)(ii), to
the Class A-2 and Class
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A-3 Certificates, in that order, until the Certificate Principal
Balance thereof have been reduced to zero;
third, to the Class M-1 Certificates, up to the Class M-1
Principal Distribution Amount, until the Certificate Principal Balance
thereof has been reduced to zero;
fourth, to the Class M-2 Certificates, up to the Class M-2
Principal Distribution Amount, until the Certificate Principal Balance
thereof has been reduced to zero;
fifth, to the Class M-3 Certificates, up to the Class M-3
Principal Distribution Amount, until the Certificate Principal Balance
thereof has been reduced to zero;
sixth, to the Class M-4 Certificates, up to the Class M-4
Principal Distribution Amount, until the Certificate Principal Balance
thereof has been reduced to zero;
seventh, to the Class M-5 Certificates, up to the Class M-5
Principal Distribution Amount, until the Certificate Principal Balance
thereof has been reduced to zero;
eighth, to the Class M-6 Certificates, up to the Class M-6
Principal Distribution Amount, until the Certificate Principal Balance
thereof has been reduced to zero; and
ninth, any remaining Principal Distribution Amount will be
distributed as part of the Monthly Excess Cashflow Amount as set forth
in Section 4.02(b).
(b) On each Distribution Date, any Monthly Excess Cashflow Amount
shall be distributed, to the extent available, in the following order of
priority on such Distribution Date:
(i) to pay any remaining Accrued Certificate Interest for such
Distribution Date, pro rata, for the Class A Certificates;
(ii) to pay any Interest Carry Forward Amounts for such Distribution
Date, pro rata, for the Class A Certificates;
(iii) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date for the Class M-1 Certificates;
(iv) to pay the remaining Interest Carry Forward Amount, if any, for
the Class M-1 Certificates;
(v) to pay the Class M-1 Realized Loss Amortization Amount for such
Distribution Date;
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(vi) to pay any remaining unpaid Accrued Certificate Interest for such
Distribution Date for the Class M-2 Certificates;
(vii) to pay the remaining Interest Carry Forward Amount, if any, for
the Class M-2 Certificates;
(viii) to pay the Class M-2 Realized Loss Amortization Amount for such
Distribution Date;
(ix) to pay any remaining unpaid Accrued Certificate Interest for such
Distribution Date for the Class M-3 Certificates;
(x) to pay the remaining Interest Carry Forward Amount, if any, for
the Class M-3 Certificates;
(xi) to pay the Class M-3 Realized Loss Amortization Amount for such
Distribution Date;
(xii) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date for the Class M-4 Certificates;
(xiii) to pay the remaining Interest Carry Forward Amount, if any, for
the Class M-4 Certificates;
(xiv) to pay the Class M-4 Realized Loss Amortization Amount for such
Distribution Date;
(xv) to pay any remaining unpaid Accrued Certificate Interest for such
Distribution Date for the Class M-5 Certificates;
(xvi) to pay the remaining Interest Carry Forward Amount, if any, for
the Class M-5 Certificates;
(xvii) to pay the Class M-5 Realized Loss Amortization Amount for such
Distribution Date;
(xviii) to pay any remaining unpaid Accrued Certificate Interest for
such Distribution Date for the Class M-6 Certificates;
(xix) to pay the remaining Interest Carry Forward Amount, if any, for
the Class M-6 Certificates;
(xx) to pay the Class M-6 Realized Loss Amortization Amount for such
Distribution Date;
(xxi) first, to the Class A-1, Class A-2 and Class A-3 Certificates,
pro rata, and then sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5 and Class M-6 Certificates, in that order, any Cap
Carryover Amount for each such Class; and
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(xxii) to the Class CE Certificates, up to the Class CE Distributable
Amount for such Distribution Date.
On each Distribution Date, there shall be distributed to the Holder of
the Class R Certificate, any remaining amount in the Distribution Account on
such date after the application pursuant to Sections 4.01, 4.02(a) and
4.02(b)(i)-(xxii).
(c) On each Distribution Date, the Trustee shall withdraw any amounts
then on deposit in the Distribution Account that represent Prepayment Charges
collected by the Servicer in connection with the Principal Prepayment in full of
any of the Mortgage Loans, any Originator Prepayment Charge Payment Amount or
Servicer Prepayment Charge Payment Amount and shall distribute such amounts to
the Holders of the Class P Certificates. Such amounts shall be treated as having
been distributed to the Holders of the Class P Certificates from the Grantor
Trust.
(d) Any amounts distributed to the Offered Certificates in respect of
interest pursuant to Sections 4.01(b)(xxi) which constitute Cap Carryover
Amounts (taking into account, in the case of the Class A Certificates, the
parenthetical in clause (ii) of the definition of Cap Carryover Amount) shall
first be deemed distributed by REMIC 2 as a distribution to the Class CE
Certificates, and then distributed to the Offered Certificates from the Grantor
Trust as payments on notional principal contracts in the nature of cap
contracts. Any remaining amount with respect to the REMIC 2 Components or any
remaining Yield Maintenance Agreement Payment shall be treated as having been
distributed to the Holders of the Class CE Certificates from the Grantor Trust.
Section 4.03 Allocation of Losses.
Realized Losses shall be allocated first against the Monthly Excess
Interest Amount and then against the Overcollateralization Amount until such
amount has been reduced to zero. If, after giving effect to the distribution of
the Principal Distribution Amount on any Distribution Date the aggregate
Certificate Principal Balance of the Offered Certificates exceeds the Pool
Balance as of the end of the related Collection Period, such excess will be
allocated against the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-4, Class M-3, Class M-2 and
Class M-1 Certificates, in that order and until the respective Certificate
Principal Balances thereof are reduced to zero.
Section 4.04 Method of Distribution.
The Trustee shall make distributions in respect of a Distribution Date
to each Certificateholder of record on the related Record Date (other than as
provided in Section 10.01 respecting the final distribution), in the case of
Certificateholders of the Certificates, by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trustee in writing at least five Business Days prior
to the Record Date immediately prior to such Distribution Date and is the
registered owner of such Certificates, or by check mailed by first class mail to
the address of the Person entitled thereto, as such name and address shall
appear on the Certificate Register, provided that the Trustee may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Distributions
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among Certificateholders shall be made in proportion to the Percentage Interests
evidenced by the Certificates held by such Certificateholders.
Section 4.05 Distributions on Book-Entry Certificates.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. All such credits
and disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions of
the Certificates. None of the Trustee, the Depositor or the Servicer shall have
any responsibility therefor except as otherwise provided by applicable law.
Section 4.06 Statements.
(a) On each Distribution Date, based on the Mortgage Loan information
contained in the Remittance Report, the Trustee shall prepare and post on its
website at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇, a statement (the "Distribution Date
Statement") as to the distributions made on such Distribution Date:
(i) the amount of the distribution made on such Distribution Date to
the Holders of each Class of Certificates allocable to principal,
separately identified and the amount of the distribution made on such
Distribution Date to the Holders of the Class P Certificates allocable to
Prepayment Charges, Originator Prepayment Charge Payment Amounts and
Servicer Prepayment Charge Payment Amounts;
(ii) the amount of the distribution made on such Distribution Date to
the Holders of each Class of Certificates allocable to interest or Class CE
Distributable Amount, separately identified;
(iii) the Overcollateralization Amount, the Overcollateralization
Release Amount, the Overcollateralization Deficiency and the
Overcollateralization Target Amount as of such Distribution Date and the
Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for such
Distribution Date;
(iv) the aggregate amount of servicing compensation received by the
Servicer during the related Collection Period;
(v) the aggregate amount of Advances for the related Collection
Period, cumulative unreimbursed Advances and Servicing Advances and
cumulative Nonrecoverable Advances;
(vi) the Pool Balance, at the close of business at the end of the
related Collection Period;
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(vii) the number, weighted average remaining term to maturity and
weighted average Mortgage Interest Rate of the Mortgage Loans as of the
related Due Date;
(viii) the number and aggregate unpaid principal balance of Mortgage
Loans (a) 30 to 59 days past due on a contractual basis, (b) 60 to 89 days
past due on a contractual basis, (c) 90 or more days past due on a
contractual basis, (d) as to which foreclosure proceedings have been
commenced and (e) in bankruptcy as of the close of business on the last day
of the calendar month preceding such Distribution Date;
(ix) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number of such Mortgage Loan,
the unpaid principal balance and the Principal Balance of such Mortgage
Loan as of the date it became an REO Property;
(x) the book value of any REO Property as of the close of business on
the last Business Day of the calendar month preceding the Distribution
Date, and, cumulatively, the total number and cumulative principal balance
of all REO Properties as of the close of business of the last day of the
preceding Collection Period;
(xi) separately stated for each Loan Group, the aggregate amount of
Principal Prepayments made during the related Prepayment Period;
(xii) separately stated for each Loan Group, the aggregate amount of
Realized Losses incurred during the related Collection Period and the
cumulative amount of Realized Losses;
(xiii) the Certificate Principal Balance of each Class of
Certificates, after giving effect to the distributions, and allocations of
Realized Losses or Applied Realized Loss Amounts, as applicable, made on
such Distribution Date, separately identifying any reduction thereof due to
allocations of Realized Losses or Applied Realized Loss Amounts;
(xiv) the Accrued Certificate Interest in respect of each Class of
Certificates for such Distribution Date and any related Cap Carryover
Amounts, and the respective portions thereof, if any, remaining unpaid
following the distributions made in respect of such Certificates on such
Distribution Date;
(xv) the aggregate amount of any Prepayment Interest Shortfalls for
such Distribution Date, to the extent not covered by payments by the
Servicer pursuant to Section 3.23;
(xvi) the amount of the Trustee Fee paid;
(xvii) the Cap Carryover Amounts distributed on such Distribution
Date, the amounts remaining after giving effect to distributions thereof on
such Distribution Date and the amount of all Cap Carryover Amounts covered
by withdrawals from the Reserve Account on such Distribution Date;
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(xviii) any Overcollateralization Deficiency after giving effect to
the distribution of principal on such Distribution Date;
(xix) whether a Trigger Event has occurred and is continuing, and the
cumulative Realized Losses, as a percentage of the original Pool Balance;
(xx) the Available Funds;
(xxi) the rate at which interest accrues for each Class of
Certificates for such Distribution Date;
(xxii) the information contained in the Liquidation Report for such
Distribution Date;
(xxiii) the aggregate Principal Balance of Mortgage Loans purchased by
the Servicer, the Originator or the Seller during the related Prepayment
Period and indicating the Section of this Agreement requiring or allowing
the purchase of each such Mortgage Loan;
(xxiv) the aggregate Principal Balance of the Mortgage Loans
repurchased by the Servicer during the related Prepayment Period in
connection with Section 3.16;
(xxv) the amount of the Credit Risk Manager Fee paid; and
(xxvi) the Mortgage Loan identifying number of each Mortgage Loan with
a Prepayment Charge that was the subject of a Principal Prepayment in full
during the related Collection Period, the Prepayment Charge listed on each
related Mortgage Note and the Prepayment Charge collected, the Servicer
Prepayment Charge Payment Amount paid by the Servicer or the Originator
Prepayment Charge Payment Amount paid by the Originator with respect to
each such Mortgage Loan.
The Trustee may fully rely upon and shall have no liability with
respect to information with respect to the Mortgage Loans provided by the
Servicer.
In the case of information furnished pursuant to subclauses (i), (ii)
and (xiii) above, the amounts shall be expressed in a separate section of the
report as a dollar amount for each Class for each $1,000 original dollar amount
as of the Cut-off Date.
(b) Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Certificateholder of a Regular Certificate, if requested in
writing by such Person, such information as is reasonably necessary to provide
to such Person a statement containing the information set forth in subclauses
(i), (ii) or (xiv) above, 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 prepared and furnished by the
Trustee to Certificateholders pursuant to any requirements of the Code as are in
force from time to time.
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(c) On each Distribution Date, the Trustee shall forward to the Class
R Certificateholder a copy of the reports forwarded to the Regular
Certificateholders in respect of such Distribution Date with such other
information as the Trustee deems necessary or appropriate. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be prepared and furnished to Class R
Certificateholder by the Trustee pursuant to any requirements of the Code as
from time to time in force.
Section 4.07 Remittance Reports; Advances.
(a) On the second Business Day following each Determination Date, the
Servicer shall deliver to the Trustee by telecopy (or by such other means as the
Servicer and the Trustee may agree from time to time) a Remittance Report with
respect to the related Distribution Date. On the same date, the Servicer shall
electronically forward to the Trustee in such medium as may be agreed between
the Servicer and the Trustee the information set forth in such Remittance Report
with respect to the related Distribution Date and such information reasonably
available to the Servicer necessary in order for the Trustee to perform the
calculations necessary to make the distributions contemplated by Section 4.01,
4.02 and 4.03 and to prepare the Distribution Date Statement. The Trustee shall
not be responsible to recompute, recalculate or verify any information provided
to it by the Servicer.
(b) The amount of Advances to be made by the Servicer for any
Distribution Date shall equal, subject to Section 4.07(d), the sum of (i) the
aggregate amount of Monthly Payments (net of the related Servicing Fee), due
during the related Collection Period in respect of the Mortgage Loans, which
Monthly Payments were delinquent on a contractual basis as of the close of
business on the related Determination Date and (ii) with respect to each REO
Property, which REO Property was acquired during or prior to the related
Collection Period and as to which REO Property an REO Disposition did not occur
during the related Collection Period, an amount equal to the excess, if any, of
the REO Imputed Interest on such REO Property for such Collection Period, over
the net income from such REO Property transferred to the Distribution Account
pursuant to Section 3.13 for distribution on such Distribution Date. For
purposes of the preceding sentence, the Monthly Payment on each Balloon Mortgage
Loan with a delinquent Balloon Payment is equal to the assumed monthly payment
that would have been due on the related Due Date based on the original principal
amortization schedule for the such Balloon Mortgage Loan.
On or before 1:00 p.m. New York time on each Servicer Remittance Date,
the Servicer shall remit in immediately available funds to the Trustee for
deposit in the Distribution Account an amount equal to the aggregate amount of
Advances, if any, to be made in respect of the Mortgage Loans for the related
Distribution Date either (i) from its own funds or (ii) from the Collection
Account, to the extent of funds held therein for future distribution (in which
case it will cause to be made an appropriate entry in the records of the
Collection Account that amounts held for future distribution have been, as
permitted by this Section 4.07, used by the Servicer in discharge of any such
Advance) or (iii) in the form of any combination of (i) and (ii) aggregating the
total amount of Advances to be made by the Servicer with respect to the Mortgage
Loans. Any amounts held for future distribution and so used shall be
appropriately reflected in the Servicer's records and replaced by the Servicer
by deposit in the Collection Account on or before
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any future Servicer Remittance Date to the extent that the Available Funds for
the related Distribution Date (determined without regard to Advances to be made
on the Servicer Remittance Date) shall be less than the total amount that would
be distributed to the Classes of Certificateholders pursuant to Section 4.01 and
4.02 on such Distribution Date if such amounts held for future distributions had
not been so used to make Advances. The Trustee will provide notice to the
Servicer by telecopy by the close of business on any Servicer Remittance Date in
the event that the amount remitted by the Servicer to the Trustee on such date
is less than the Advances required to be made by the Servicer for the related
Distribution Date, as set forth in the related Remittance Report.
(c) The obligation of the Servicer to make such Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to paragraph
(d) below, and, with respect to any Mortgage Loan, shall continue until the
earlier of such time as the Trust acquires title to the related Mortgaged
Property or such Mortgage Loan is paid in full by the Mortgagor or disposed of
by the Trust, or until the recovery of all Liquidation Proceeds thereon.
(d) Notwithstanding anything herein to the contrary, no Advance or
Servicing Advance shall be required to be made hereunder by the Servicer if such
Advance would, if made, constitute a Nonrecoverable Advance. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance, if made, would constitute a Nonrecoverable Advance, shall be evidenced
by an Officers' Certificate of the Servicer delivered to the Depositor and the
Trustee. The Trustee shall be entitled to conclusively rely upon any such
determination by the Servicer.
Section 4.08 REMIC Distributions and Allocation of Losses.
(a) On each Distribution Date, the Trustee shall cause in the
following order of priority, the following amounts to be distributed by REMIC 1
to REMIC 2 on account of the REMIC 1 Regular Interests or withdrawn from the
Distribution Account and distributed to the Holders of the Class R Certificates
(in respect of the Class R-1 Interest), as the case may be:
(i) to Holders of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1A1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular
Interest LT1A3, REMIC 1 Regular Interest LT1M1, REMIC 1 Regular
Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC 1 Regular
Interest LT1M4, REMIC 1 Regular Interest LT1M5, REMIC 1 Regular
Interest LT1M6 and REMIC 1 Regular Interest LT1ZZ, pro rata, in an
amount equal to (A) the Uncertificated Accrued Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates. Amounts payable as
Uncertificated Accrued Interest in respect of REMIC 1 Regular Interest
LT1ZZ shall be reduced and deferred when the REMIC 1
Overcollateralized Amount is less than the REMIC 1
Overcollateralization Target Amount, by the lesser of (x) the amount
of such difference and (y) the Maximum LT1ZZ Uncertificated Accrued
Interest Deferral Amount and such amount will be payable to the
Holders of REMIC 1 Regular Interest LT1A1, REMIC 1 Regular Interest
LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular Interest LT1M1,
REMIC 1 Regular Interest LT1M2, REMIC 1 Regular Interest LT1M3, REMIC
1 Regular
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Interest LT1M4, REMIC 1 Regular Interest LT1M5 and REMIC 1 Regular
Interest LT1M6 in the same proportion as the Overcollateralization
Deficiency is allocated to the Corresponding Certificates;
(ii) to Holders of REMIC 1 Regular Interest LT1SUB, REMIC 1
Regular Interest LT1GRP, REMIC 1 Regular Interest LT2SUB, REMIC 1
Regular Interest LT2GRP and REMIC 1 Regular Interest LT1XX, pro rata,
in an amount equal to (A) the Uncertificated Accrued Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates;
(iii) to the Holders of REMIC 1 Regular Interests, in an amount
equal to the remainder of the REMIC 1 Marker Allocation Percentage of
Available Funds for such Distribution Date after the distributions
made pursuant to clause (i) above, allocated as follows:
(1) to REMIC 1 Regular Interest LT1AA, 98.00% of such
remainder, until the Uncertificated Principal Balance of such
Uncertificated REMIC 1 Regular Interest is reduced to zero;
(2) to REMIC 1 Regular Interest LT1A1, REMIC 1 Regular
Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC 1 Regular
Interest LT1M1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular
Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular
Interest LT1M5 and REMIC 1 Regular Interest LT1M6, 1.00% of such
remainder, in the same proportion as principal payments are
allocated to the Corresponding Certificates, until the
Uncertificated Principal Balances of such REMIC 1 Regular
Interests are reduced to zero; then
(3) to REMIC 1 Regular Interest LT1ZZ, 1.00% of such
remainder, until the Uncertificated Principal Balance of such
REMIC 1 Regular Interest is reduced to zero;
provided, however, that (i) 98.00% and (ii) 2.00% of any principal payments that
are attributable to an Aggregate Overcollateralization Release Amount shall be
allocated to (i) REMIC 1 Regular Interest LT1AA and (ii) REMIC 1 Regular
Interest LT1ZZ, respectively; and
(iv) to the Holders of REMIC 1 Regular Interests, in an amount
equal to the remainder of the REMIC 1 Sub WAC Allocation Percentage of
Available Funds for such Distribution Date after the distributions
made pursuant to clause (i) above, such that distributions of
principal shall be deemed to be made to the REMIC 1 Regular Interests
first, so as to keep the Uncertificated Principal Balance of each
REMIC 1 Regular Interest ending with the designation "GRP" equal to
0.01% of the aggregate Principal Balance of the Mortgage Loans in the
related group of Mortgage Loans; second, to each REMIC 1 Regular
Interest ending with the designation "SUB," so that the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest is equal to
0.01% of the excess of (x) the
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aggregate Principal Balance of the Mortgage Loans in the related group
of Mortgage Loans over (y) the current Certificate Principal Balance
of the Class A Certificate in the related group of Mortgage Loans
(except that if any such excess is a larger number than in the
preceding distribution period, the least amount of principal shall be
distributed to such REMIC 1 Regular Interests such that the REMIC 1
Subordinated Balance Ratio is maintained); and third, any remaining
principal to REMIC 1 Regular Interest LT1XX.
(b) The Trustee shall cause the following allocation of losses:
(i) The REMIC 1 Marker Allocation Percentage of the aggregate
amount of any Prepayment Interest Shortfalls and the REMIC 1 Marker
Allocation Percentage of the aggregate amount of any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution
Date shall be allocated first, to Uncertificated Accrued Interest payable
to REMIC 1 Regular Interest LT1AA and REMIC 1 Regular Interest LT1ZZ up to
an aggregate amount equal to the REMIC 1 Interest Loss Allocation Amount,
98% and 2%, respectively, and thereafter among REMIC 1 Regular Interest
LTA1, REMIC 1 Regular Interest LT1A2, REMIC 1 Regular Interest LT1A3, REMIC
1 Regular Interest LTAM1, REMIC 1 Regular Interest LT1M2, REMIC 1 Regular
Interest LT1M3, REMIC 1 Regular Interest LT1M4, REMIC 1 Regular Interest
LT1M5, REMIC 1 Regular Interest LT1M6 and REMIC 1 Regular Interest LT1ZZ
pro rata based on, and to the extent of, one month's interest at the then
applicable respective Uncertificated REMIC 1 Pass-Through Rate on the
respective Uncertificated Principal Balance of each such REMIC 1 Regular
Interest; and
(ii) The REMIC 1 Sub WAC Allocation Percentage of the aggregate
amount of any Prepayment Interest Shortfalls and the REMIC 1 Sub WAC
Allocation of the aggregate amount of any Percentage Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution
Date shall be allocated first, to Uncertificated Accrued Interest payable
to REMIC 1 Regular Interest LT1SUB, REMIC 1 Regular Interest LT1GRP, REMIC
1 Regular Interest LT2SUB, REMIC 1 Regular Interest LT2GRP and REMIC 1
Regular Interest LT1XX, pro rata based on, and to the extent of, one
month's interest at the then applicable respective Uncertificated REMIC 1
Pass-Through Rate on the respective Uncertificated Principal Balance of
each such REMIC 1 Regular Interest. For purposes of calculating the amount
of Uncertificated Accrued Interest for the REMIC 1 Regular Interests for
any Distribution Date, the aggregate amount of any Prepayment Interest
Shortfalls and any Relief Act Interest.
(iii) The REMIC 1 Marker Percentage of all Realized Losses on the
Mortgage Loans shall be allocated by the Trustee on each Distribution Date
to the following REMIC 1 Regular Interests in the specified percentages, as
follows: first, to Uncertificated Accrued Interest payable to REMIC 1
Regular Interest LT1AA and REMIC 1 Regular Interest LT1ZZ up to an
aggregate amount equal to the REMIC 1 Interest Loss Allocation Amount, 98%
and 2%, respectively; second, to the Uncertificated Principal Balances of
REMIC 1 Regular Interest LT1AA and REMIC 1 Regular Interest LT1ZZ up to an
aggregate amount equal to the REMIC 1 Principal Loss
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Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1M6 and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT1M6 has been reduced to zero; fourth, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1M5 and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT1M5 has been reduced to zero; fifth, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1M4 and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT1M4 has been reduced to zero; sixth to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1M3 and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT1M3 has been reduced to zero; seventh, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1M2 and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT1M2 has been reduced to zero; and eight, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT1AA, REMIC 1 Regular
Interest LT1M1 and REMIC 1 Regular Interest LT1ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balances of REMIC 1
Regular Interest LT1M1 has been reduced to zero.
(iv) The REMIC 1 Sub WAC Allocation Percentage of all Realized
Losses shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal Balance
of each REMIC 1 Regular Interest ending with the designation "GRP" equal to
0.01% of the aggregate Stated Principal Balance of the Mortgage Loans in
the related Loan Group; second, to each REMIC 1 Regular Interest ending
with the designation "SUB," so that the Uncertificated Principal Balance of
each such REMIC 1 Regular Interest is equal to 0.01% of the excess of (x)
the aggregate Principal Balance of the Mortgage Loans in the related Loan
Group over (y) the current Certificate Principal Balance of the Class A
Certificate in the related group of Mortgage Loans (except that if any such
excess is a larger number than in the preceding distribution period, the
least amount of Realized Losses shall be applied to such REMIC 1 Regular
Interests such that the REMIC 1 Subordinated Balance Ratio is maintained);
and third, any remaining Realized Losses shall be allocated to REMIC 1
Regular Interest LT1XX.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
Each of the Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class CE, Class P and Class R
Certificates shall be
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substantially in the forms annexed hereto as exhibits, and shall, on original
issue, be executed by the Trustee and authenticated and delivered by the
Certificate Registrar to or upon the receipt of a Written Order to Authenticate
from the Depositor concurrently with the sale and assignment to the Trustee of
the Trust Fund. Each Class of the Offered Certificates shall be initially
evidenced by one or more Certificates representing a Percentage Interest with a
minimum dollar (or notional amount) denomination of $25,000 and integral
multiples of $1 in excess thereof. The Class CE and Class P Certificates are
issuable only in minimum Percentage Interests of 10%. The Class R Certificate is
issuable only as a single certificate.
The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature on behalf of the Trustee by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trustee shall bind the Trust, notwithstanding that such individuals or any
of them have ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless such Certificate shall have been
manually authenticated by the Certificate Registrar substantially in the form
provided for herein, and such authentication upon any 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. Subject to Section 5.02(c), the Offered Certificates
shall be Book-Entry Certificates. The Class CE, Class P and Class R Certificates
shall not be Book-Entry Certificates but shall be issued in fully registered
certificate form.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall cause to be kept at the Corporate
Trust Office of the Trustee a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall initially serve as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Trustee as Certificate
Registrar shall be subject to the same standards of care, limitations on
liability and rights to indemnity as the Trustee, and the provisions of Sections
8.01, 8.02, 8.03, 8.04, 8.05, 8.14, 8.15 and 8.16 shall apply to the Certificate
Registrar to the same extent as they apply to the Trustee. Any Certificate
Registrar appointed in accordance with this Section 5.02(a) may at any time
resign by giving at least 30 days' advance written notice of resignation to the
Trustee, the Servicer and the Depositor, such resignation to become effective
upon appointment of a successor Certificate Registrar.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph and, in the case of the Class R Certificate,
upon satisfaction of the conditions set forth below, the Trustee on behalf of
the Trust shall execute and the Certificate Registrar shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same aggregate Percentage Interest.
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At the option of the Certificateholders, Certificates may be exchanged
for other Certificates in authorized denominations and the same aggregate
Percentage Interests, 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 on behalf of the Trust and the Certificate
Registrar shall authenticate and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall (if so
required by the Trustee or the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer satisfactory to the Trustee and
the Certificate Registrar duly executed by, the Holder thereof or his attorney
duly authorized in writing.
(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, the initial Depository, by, or on behalf of, the Depositor; or
to, and deposited with the Certificate Custodian, on behalf of the Depository,
if directed to do so pursuant to instructions from the Depository. Except as
provided in paragraph (c) below, the Book-Entry Certificates shall at all times
remain registered in the name of the Depository or its nominee and at all times:
(i) registration of such Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership and
transfers of such Certificates; (iii) ownership and transfers of registration of
such Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants; (v)
the Trustee shall for all purposes deal with the Depository as representative of
the Certificate Owners of the Certificates for purposes of exercising the rights
of Holders under this Agreement, and requests and directions for and votes of
such representative shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; (vi) the Trustee may rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners; and (vii) the direct participants of the Depository shall have no rights
under this Agreement under or with respect to any of the Certificates held on
their behalf by the Depository, and the Depository may be treated by the Trustee
and its agents, employees, officers and directors as the absolute owner of the
Certificates for all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners that it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures. The parties hereto
are hereby authorized to execute a Letter of Representations with the Depository
or take such other action as may be necessary or desirable to register a
Book-Entry Certificate to the Depository. In the event of any conflict between
the terms of any such Letter of Representation and this Agreement, the terms of
this Agreement shall control.
(c) If (i)(x) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository
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and (y) the Trustee or the Depositor is unable to locate a qualified successor,
(ii) the Depositor, at its sole option, with the consent of the Trustee, elects
to terminate the book-entry system through the Depository or (iii) after the
occurrence of a Servicer Event of Termination, the Certificate Owners of each
Class of Book-Entry Certificates representing Percentage Interests of such
Classes aggregating not less than 51% advises the Trustee and Depository through
the Financial Intermediaries and the Depository Participants in writing that the
continuation of a book-entry system through the Depository to the exclusion of
definitive, fully registered certificates (the "Definitive Certificates") to
Certificate Owners is no longer in the best interests of the Certificate Owners.
Upon surrender to the Certificate Registrar of the Book-Entry Certificates by
the Depository, accompanied by registration instructions from the Depository for
registration, the Trustee shall, at the Depositor's expense, in the case of (ii)
above, or the Trust's expense, in the case of (i) and (iii) above, execute on
behalf of the Trust and the Certificate Registrar shall authenticate the
Definitive Certificates. None of the Depositor or the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Certificate Registrar, the Servicer,
any Paying Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) Except with respect to a transfer of the Private Certificates
between or among the Depositor, the Seller, their affiliates or both, no
transfer, sale, pledge or other disposition of any Private Certificate shall be
made unless such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and laws. In the
event of any such transfer, (i) unless such transfer is made in reliance upon
Rule 144A (as evidenced by the investment letter delivered to the Certificate
Registrar, in substantially the form attached hereto as Exhibit J) under the
1933 Act, the Certificate Registrar and the Depositor shall require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Certificate Registrar and the Depositor
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being made
pursuant to the 1933 Act, which Opinion of Counsel shall not be an expense of
the Certificate Registrar or the Depositor or (ii) the Certificate Registrar
shall require the transferor to execute a transferor certificate (in
substantially the form attached hereto as Exhibit L) and the transferee to
execute an investment letter (in substantially the form attached hereto as
Exhibit J) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Certificate Registrar certifying to the Depositor and the
Certificate Registrar the facts surrounding such transfer, which investment
letter shall not be an expense of the Certificate Registrar or the Depositor.
The Holder of a Private Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Certificate Registrar shall have received either (i) a representation from
the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor, (such requirement
is satisfied only by the Certificate Registrar's receipt of a representation
letter from the transferee substantially in the form of Exhibit I hereto, as
appropriate), to the effect that such transferee is not an employee benefit plan
or arrangement
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subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
nor a person acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such transfer or (ii) (except
in the case of a Class P, Class R or Class CE Certificate) if the purchaser is
an insurance company, a representation that the purchaser is an insurance
company which is purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(c) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) (except in the case of the Class R Certificate) in the
case of any such ERISA Restricted Certificate presented for registration in the
name of an employee benefit plan subject to ERISA or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Certificate Registrar, to the effect that
the purchase or holding of such ERISA Restricted Certificate will not result in
the assets of the Trust being deemed to be "plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code and will not subject the
Depositor, the Servicer, the Trustee or the Certificate Registrar to any
obligation in addition to those expressly undertaken in this Agreement or to any
liability. For purposes of clause (i) of the preceding sentence, such
representation shall be deemed to have been made to the Certificate Registrar by
the acceptance by a Certificate Owner of the beneficial interest in any such
Class of ERISA-Restricted Certificates, unless the Certificate Registrar shall
have received from the transferee an alternative representation acceptable in
form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA-Restricted Certificate to or
on behalf of an employee benefit plan subject to ERISA or to the Code without
the delivery to the Certificate Registrar of an Opinion of Counsel satisfactory
to the Certificate Registrar as described above shall be void and of no effect.
Any representations required to be made in subsection (i) and (ii) above in the
case of an ERISA-Restricted Certificate which is also a Book-Entry Certificate
shall be deemed to have been made by the acquisition of such Certificate.
Any beneficial owner of a Class M Certificate that is not an
ERISA-Restricted Certificate shall be deemed to have represented by virtue of
its acquisition or holding of such Certificate that such Certificate is rated
"BBB-" (or its equivalent) or higher by ▇▇▇▇▇'▇, Fitch or S&P.
Each Person who has or who acquires any Ownership Interest in the
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably appointed the Depositor or its designee as its attorney-in-fact
to negotiate the terms of any mandatory sale under clause (v) below and to
execute all instruments of transfer and to do all other things necessary in
connection with any such sale, and the rights of each Person acquiring any
Ownership Interest in the Class R Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in the
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Certificate Registrar of any change or impending change in its
status as a Permitted Transferee.
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(ii) No Person shall acquire an Ownership Interest in the Class R
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in the Class R Certificate, the Certificate Registrar shall as a
condition to registration of the transfer, require delivery to it, in form
and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit K hereto from the
proposed transferee to the effect that, among other things, such
transferee is a Permitted Transferee and that it is not acquiring its
Ownership Interest in the Class R Certificate that is the subject of
the proposed transfer as a nominee, trustee or agent for any Person
who is not a Permitted Transferee; and
(B) a covenant of the proposed transferee to the effect that the
proposed transferee agrees to be bound by and to abide by the transfer
restrictions applicable to the Class R Certificate.
(iv) Any attempted or purported transfer of any Ownership Interest in
the Class R Certificate in violation of the provisions of this Section
shall be absolutely null and void and shall vest no rights in the purported
transferee. If any purported transferee shall, in violation of the
provisions of this Section, become the Holder of the Class R Certificate,
then the prior Holder of such Class R Certificate that is a Permitted
Transferee shall, upon discovery that the registration of transfer of such
Class R Certificate was not in fact permitted by this Section, be restored
to all rights as Holder thereof retroactive to the date of registration of
transfer of such Class R Certificate. The Certificate Registrar shall be
under no liability to any Person for any registration of transfer of the
Class R Certificate that is in fact not permitted by this Section or for
making any distributions due on such Class R Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the Certificate Registrar received
the documents specified in clause (iii). The Trustee shall be entitled to
recover from any Holder of the Class R Certificate that was in fact not a
Permitted Transferee at the time such distributions were made all
distributions made on such Class R Certificate. Any such distributions so
recovered by the Trustee shall be distributed and delivered by the Trustee
to the prior Holder of such Class R Certificate that is a Permitted
Transferee.
(v) If any Person other than a Disqualified Organization acquires any
Ownership Interest in the Class R Certificate in violation of the
restrictions in this Section, then the Certificate Registrar shall have the
right but not the obligation, without notice to the Holder of the Class R
Certificate or any other Person having an Ownership Interest therein, to
notify the Depositor to arrange for the sale of the Class R Certificate.
The proceeds of such sale, net of commissions (which may include
commissions payable to the Depositor or its affiliates in connection with
such sale), expenses and taxes due, if any, will be remitted by the Trustee
to the previous Holder of the Class R Certificate that is a Permitted
Transferee, except that in the event that the Trustee determines that the
Holder of the Class R Certificate may be liable for any amount due under
this Section or
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any other provisions of this Agreement, the Trustee may withhold a
corresponding amount from such remittance as security for such claim. The
terms and conditions of any sale under this clause (v) shall be determined
in the sole discretion of the Trustee and it shall not be liable to any
Person having an Ownership Interest in the Class R Certificate as a result
of its exercise of such discretion.
(vi) If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Class R Certificate in violation of the
restrictions in this Section, then the Trustee will provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3) and
(6) of the Code, information needed to compute the tax imposed under
Section 860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations. The Trustee shall be entitled to reasonable
compensation for providing such information from the person to whom it is
provided.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Certificate Registrar, in form and substance satisfactory to the Certificate
Registrar, (i) written notification from each Rating Agency that the removal of
the restrictions on Transfer set forth in this Section will not cause such
Rating Agency to downgrade its rating of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause any REMIC hereunder to
fail to qualify as a REMIC.
(e) No service charge shall be made for any registration of transfer
or exchange of Certificates of any Class, but 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 registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to its
standard procedures.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee, the Depositor and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute on behalf of the Trust, and the Certificate Registrar shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like tenor and Percentage Interest.
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 expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) in connection therewith. Any duplicate Certificate issued
pursuant to this Section, shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
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Section 5.04 Persons Deemed Owners.
The Servicer, the Depositor, the Trustee, the Certificate Registrar,
any Paying Agent and any agent of the Servicer, the Depositor, the Certificate
Registrar, any Paying Agent or the Trustee may treat the Person, including a
Depository, 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 4.02 and for all other purposes whatsoever, and none of the Servicer, the
Trust, the Trustee nor any agent of any of them shall be affected by notice to
the contrary.
Section 5.05 Appointment of Paying Agent.
The Paying Agent shall make distributions to Certificateholders from
the Distribution Account pursuant to Section 4.01 and 4.02 and shall report the
amounts of such distributions to the Trustee. The duties of the Paying Agent may
include the obligation to distribute statements and provide information to
Certificateholders as required hereunder. The Paying Agent hereunder shall at
all times be an entity duly incorporated and validly existing under the laws of
the United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. The Paying Agent shall initially be the Trustee.
The Trustee may appoint a successor to act as Paying Agent, which appointment
shall be reasonably satisfactory to the Depositor and the Rating Agencies. The
Trustee as Paying Agent shall be subject to the same standards of care,
limitations on liability and rights to indemnity as the Trustee, and the
provisions of Sections 8.01, 8.02, 8.03, 8.04, 8.05, 8.14, 8.15 and 8.16 shall
apply to the Paying Agent to the same extent as they apply to the Trustee. Any
Paying Agent appointed in accordance with this Section 5.05 may at any time
resign by giving at least 30 days' advance written notice of resignation to the
Trustee, the Servicer and the Depositor, such resignation to become effective
upon appointment of a successor Paying Agent.
ARTICLE VI
THE SERVICER AND THE DEPOSITOR
Section 6.01 Liability of the Servicer and the Depositor.
The Servicer shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken by the Servicer
herein. The Depositor shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken by the Depositor.
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer or the Depositor.
Any entity into which the Servicer or the Depositor may be merged or
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Servicer or the Depositor shall be a party, or any
corporation succeeding to the business of the Servicer or the Depositor, shall
be the successor of the Servicer or the Depositor, as the case may be,
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 the
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successor servicer shall satisfy all the requirements of Section 7.02 with
respect to the qualifications of a successor servicer.
Section 6.03 Limitation on Liability of the Servicer and Others.
None of the Depositor, the Servicer or any of the directors, officers,
employees or agents of the Depositor or the Servicer shall be under any
liability to the Trust or the Certificateholders 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 the Depositor or the Servicer or any such Person against any
breach of warranties or representations made by such party herein, or against
any specific liability imposed on the Servicer for a breach of the Servicing
Standard and/or this Agreement, or against any liability which would otherwise
be imposed by reason of its willful misfeasance, bad faith or negligence in the
performance of its respective duties or by reason of its reckless disregard of
its respective obligations and duties hereunder; provided, further, that this
provision shall not be construed to entitle the Servicer to indemnity in the
event that amounts advanced by the Servicer to retire any senior lien exceed
Liquidation Proceeds (in excess of related liquidation expenses) realized with
respect to the related Mortgage Loan. The Depositor, the Servicer and any
director, officer, employee or agent of the Depositor or the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Servicer and any director, officer, employee or agent of the Depositor or
the Servicer shall be indemnified by the Trust and held harmless against any
loss, liability or expense incurred in connection with any legal action relating
to this Agreement or the Certificates, other than any loss, liability or expense
incurred in connection with any legal action incurred by reason of its willful
misfeasance, bad faith or negligence, a breach of a representation or warranty
made by such party hereunder or (in the case of the Servicer) a breach of the
Servicing Standard in the performance of its respective duties hereunder or by
reason of its reckless disregard of its respective obligations and duties
hereunder. The Depositor or the Servicer may undertake any such action which it
may deem necessary or desirable in respect of this Agreement, and the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. The Servicer's right to indemnity or reimbursement pursuant to this
Section shall survive any resignation or termination of the Servicer pursuant to
Section 6.04 or 7.01 with respect to any losses, expenses, costs or liabilities
arising prior to such resignation or termination (or arising from events that
occurred prior to such resignation or termination).
Section 6.04 Servicer Not to Resign.
Subject to the provisions of Section 7.01 and Section 6.02, the
Servicer shall not resign from the obligations and duties hereby imposed on it
except (i) upon determination that the performance of its obligations or 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,
the other activities of the Servicer so causing such a conflict being of a type
and nature carried on by the Servicer at the date of this Agreement or (ii) upon
satisfaction of the following conditions: (a) the Servicer has proposed a
successor servicer to the Trustee and the Depositor in writing and such proposed
successor servicer is reasonably acceptable to the Trustee and the Depositor;
and (b) each Rating Agency shall have delivered a letter to the Trustee prior to
the
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appointment of the successor servicer stating that the proposed appointment of
such successor servicer as Servicer hereunder will not result in the reduction
or withdrawal of the then current rating of the Regular Certificates or the
ratings that are in effect; provided, however, that no such resignation by the
Servicer shall become effective until such successor servicer or, in the case of
clause (i) above, the Trustee shall have assumed the Servicer's responsibilities
and obligations hereunder or the Trustee shall have designated a successor
servicer in accordance with Section 7.02. Any such resignation shall not relieve
the Servicer of responsibility for any of the obligations specified in Sections
7.01 and 7.02 as obligations that survive the resignation or termination of the
Servicer. Any such determination permitting the resignation of the Servicer
under clause (i) shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee.
Section 6.05 Delegation of Duties.
(a) In the ordinary course of business, the Servicer at any time may
delegate any of its duties hereunder to any Person, including any of its
Affiliates, who agrees to conduct such duties in accordance with standards
comparable to those set forth in Section 3.01. Such delegation shall not relieve
the Servicer of its liabilities and responsibilities with respect to such duties
and shall not constitute a resignation within the meaning of Section 6.04. The
Servicer shall provide the Trustee and the Rating Agencies with 60 days prior
written notice prior to the delegation of any of its duties to any Person other
than any of the Servicer's Affiliates or their respective successors and
assigns.
(b) The Servicer is hereby authorized to enter into a financing or
other facility (any such arrangement, an "Advance Facility") under which (1) the
Servicer assigns or pledges to another Person (together with such Person's
successors and assigns, an "Advancing Person") the Servicer's rights under this
Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an
Advancing Person agrees to fund all Advances and/or Servicing Advances required
to be made by the Servicer pursuant to this Agreement. No consent of the
Depositor, the Trustee, the Certificateholders or any other party shall be
required before the Servicer may enter into an Advance Facility. The Servicer
shall notify each other party to this Agreement prior to entering into or
terminating any Advance Facility, which notice shall set forth the identity of
the Advancing Person. Notwithstanding the existence of any Advance Facility
under which an Advancing Person agrees to fund Advances and/or Servicing
Advances on the Servicer's behalf, the Servicer shall remain obligated pursuant
to this Agreement to make Advances and Servicing Advances pursuant to and as
required by this Agreement. If the Servicer enters into an Advance Facility, and
for so long as an Advancing Person remains entitled to receive reimbursement for
any Advances and/or Servicing Advances, as applicable, pursuant to this
Agreement, then the Servicer shall not be permitted to reimburse itself for
Advances and/or Servicing Advances, but instead the Servicer shall be required
to remit amounts collected that would otherwise be retained by the Servicer to
reimburse it for the amount of previously unreimbursed Advances ("Advance
Reimbursements") and/or previously unreimbursed Servicing Advances ("Servicing
Advance Reimbursements" and together with Advance Reimbursements,
"Reimbursements") (in each case to the extent such type of Reimbursements are
included in the Advance Facility) in accordance with the documentation
establishing the Advance Facility to such Advancing Person or to a trustee,
agent or custodian (an "Advance Facility Trustee") designated by such Advancing
Person. Notwithstanding
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anything to the contrary herein, in no event shall Advance Reimbursements or
Servicing Advance Reimbursements be included in the "Available Funds" or
distributed to Certificateholders.
To the extent that an Advancing Person is entitled to any
Reimbursements, the Servicer shall provide to the Trustee an Officer's
Certificate which shall specify the amount of such Reimbursement, the applicable
Remittance Date, the Section of this Agreement that permits the applicable
Reimbursement to be paid and the section of the Advance Facility documentation
that entitles the Advancing Person to request reimbursement from the Trustee,
rather than the Servicer. Reimbursements shall consist solely of amounts in
respect of Advances and/or Servicing Advances made with respect to the Mortgage
Loans for which the Servicer would be permitted to reimburse itself in
accordance with this Agreement, assuming the Servicer had made the related
Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, no Person
shall be entitled to reimbursement from funds held in the Collection Account for
future distribution to Certificateholders pursuant to this Agreement. None of
the Depositor or the Trustee shall have any duty or liability with respect to
the calculation or payment of any Reimbursements, nor shall the Depositor or the
Trustee have any responsibility to track or monitor the administration of the
Advance Facility or the payment of Reimbursements to the related Advancing
Person or Advance Facility Trustee. The Servicer shall maintain and provide to
any successor servicer and (upon request) the Trustee a detailed accounting on a
loan by loan basis as to amounts advanced by, pledged or assigned to, and
reimbursed to any Advancing Person. The successor servicer shall be entitled to
rely on any such information provided by the predecessor servicer, and the
successor servicer shall not be liable for any errors in such information.
An Advancing Person who receives an assignment or pledge of the rights
to be reimbursed for Advances and/or Servicing Advances, and/or whose
obligations hereunder are limited to the funding of Advances and/or Servicing
Advances shall not be required to meet the criteria for qualification of a
subservicer set forth in this Agreement.
The documentation establishing any Advance Facility shall require that
Reimbursements distributed with respect to each Mortgage Loan be allocated to
outstanding unreimbursed Advances or Servicing Advances (as the case may be)
made with respect to that Mortgage Loan on a "first in, first out" (FIFO) basis.
Such documentation shall also require the Servicer to provide to the related
Advancing Person or Advance Facility Trustee loan by loan information with
respect to each Reimbursement distributed to such Advancing Person or Advance
Facility Trustee on each Distribution Date, to enable the Advancing Person or
Advance Facility Trustee to make the FIFO allocation of each Reimbursement with
respect to each Mortgage Loan. The Servicer shall remain entitled to be
reimbursed by the Advancing Person or Advance Facility Trustee for all Advances
and Servicing Advances funded by the Servicer to the extent the related rights
to be reimbursed therefor have not been assigned or pledged to an Advancing
Person.
The Servicer shall indemnify the Depositor, the Trustee, any successor
servicer and the Trust resulting from any claim by the related Advancing Person,
except to the extent that such claim, loss, liability or damage resulted from or
arose out of the gross negligence,
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recklessness or willful misconduct on the part of the Depositor, the Trustee or
any successor servicer.
Any amendment to this Section 6.05(b) or to any other provision of
this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 6.05(b), including
amendments to add provisions relating to a successor servicer, may be entered
into by the Trustee, the Depositor and the Servicer without the consent of any
Certificateholder, provided such amendment complies with Section 11.01 hereof.
All reasonable costs and expenses (including attorneys' fees) of each party
hereto of any such amendment shall be borne solely by the Servicer. Prior to
entering into an Advance Facility, the Servicer shall notify the lender under
such facility in writing that: (a) the Advances and/or Servicing Advances
financed by and/or pledged to the lender are obligations owed to the Servicer on
a non-recourse basis payable only from the cash flows and proceeds received
under this Agreement for reimbursement of Advances and/or Servicing Advances
only to the extent provided herein, and the Trustee and the Trust are not
otherwise obligated or liable to repay any Advances and/or Servicing Advances
financed by the lender; (b) the Servicer will be responsible for remitting to
the lender the applicable amounts collected by it as reimbursement for Advances
and/or Servicing Advances funded by the lender, subject to the restrictions and
priorities created in this Agreement; and (c) the Trustee shall not have any
responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
ARTICLE VII
DEFAULT
Section 7.01 Servicer Events of Termination.
(a) If any one of the following events ("Servicer Events of
Termination") shall occur and be continuing:
(i) (A) The failure by the Servicer to make any Advance; or (B) any
other failure by the Servicer to deposit in the Collection Account or
Distribution Account any deposit required to be made under the terms of
this Agreement, which failure continues unremedied for a period of one
Business Day following the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the Depositor or the Trustee; or
(ii) The failure by the Servicer to make any required Servicing
Advance which failure continues unremedied for a period of 30 days, or the
failure by the Servicer duly to observe or perform, in any material
respect, any other covenants, obligations or agreements of the Servicer as
set forth in this Agreement, which failure continues unremedied for a
period of 30 days, after the date (A) on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or by any Holder of a Regular Certificate
evidencing at least 25% of the Voting Rights or (B) actual knowledge of
such failure by a Servicing Officer of the Servicer; or
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(iii) The entry against the Servicer of a decree or order by a court
or agency or supervisory authority having jurisdiction in the premises for
the appointment of a trustee, conservator, receiver or liquidator in any
insolvency, conservatorship, receivership, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to
the appointment of a conservator or receiver or liquidator or similar
person in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property; or a decree or order
of a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver, liquidator or
similar person in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer
and such decree or order shall have remained in force undischarged,
unbonded or unstayed for a period of 60 days; or the 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 or
reorganization statute, make an assignment for the benefit of its creditors
or voluntarily suspend payment of its obligations; or
(v) The occurrence of a Servicer Termination Trigger; or
(vi) Fitch reduces its servicer rating of the Servicer to "RPS2-" or
lower, ▇▇▇▇▇'▇ reduces its servicer rating of the Servicer to "SQ3" or
lower, or Standard & Poor's reduces its servicer rating of the Servicer to
"Average" or lower.
(b) Then, and in each and every such case, so long as a Servicer Event
of Termination shall not have been remedied within the applicable grace period,
(x) with respect solely to clause (i)(A) above, if such Advance is not made by
2:00 P.M., New York time, on the Business Day immediately following the Servicer
Remittance Date, the Trustee may terminate all of the rights and obligations of
the Servicer under this Agreement and the Trustee, or a successor servicer
appointed in accordance with Section 7.02, shall immediately make such Advance
and assume, pursuant to Section 7.02, the duties of a successor servicer and (y)
in the case of (i)(B), (ii), (iii), (iv), (v) and (vi) above, the Trustee shall,
at the direction of the Holders of each Class of Regular Certificates evidencing
Percentage Interests aggregating not less than 51%, by notice then given in
writing to the Servicer (and to the Trustee if given by Holders of
Certificates), terminate all of the rights and obligations of the Servicer as
servicer under this Agreement. Any such notice to the Servicer shall also be
given to each Rating Agency and the Depositor. On or after the receipt by the
Servicer (and by the Trustee if such notice is given by the Holders) of such
written notice, all authority and power of the 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 or
successor servicer appointed in connection with Section 7.02; and, without
limitation, the Trustee or successor servicer is hereby authorized and empowered
to execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
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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 of each Mortgage Loan and Related Documents or otherwise. The
Servicer agrees to cooperate with the Trustee (or the applicable successor
servicer) in effecting the termination of the responsibilities and rights of the
Servicer hereunder, including, without limitation, the delivery to the Trustee
(or the applicable successor servicer) of all documents and records requested by
it to enable it to assume the Servicer's functions under this Agreement within
ten Business Days subsequent to such notice, the transfer within one Business
Day subsequent to such notice to the Trustee (or the applicable successor
servicer) for the administration by it of all cash amounts that shall at the
time be held by the Servicer and to be deposited by it in the Collection
Account, the Distribution Account or any Escrow Account or that have been
deposited by the Servicer in such accounts or thereafter received by the
Servicer with respect to the Mortgage Loans or any REO Property received by the
Servicer. All reasonable out-of-pocket costs and expenses (including attorneys'
fees) incurred in connection with transferring the servicing to the successor
servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor servicer (or if the
predecessor servicer is the Trustee, the initial servicer) upon presentation of
reasonable documentation of such costs and expenses, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be paid
by from the assets of the Trust.
Notwithstanding any termination of the activities of a Servicer
hereunder, the Servicer shall be entitled to receive payment of all accrued and
unpaid Servicing Fees and reimbursement for all outstanding Advances and
Servicing Advances properly made prior to the date of termination.
Section 7.02 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time the Servicer (and the Trustee, if
notice is sent by the Holders) receives a notice of termination pursuant to
Section 7.01 or 6.04, the Trustee (or such other successor servicer as is
approved in accordance with this Agreement) shall be the successor in all
respects to the Servicer in its capacity as servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof arising on and after its succession.
As compensation therefor, the Trustee (or such other successor servicer) shall
be entitled to such compensation as the Servicer would have been entitled to
hereunder if no such notice of termination had been given. Notwithstanding the
above, (i) if the Trustee is unwilling to act as successor servicer or (ii) if
the Trustee is legally unable so to act, the Trustee shall appoint or petition a
court of competent jurisdiction to appoint, any established housing and home
finance institution, bank or other mortgage loan or home equity loan servicer
having a net worth of not less than $50,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder; provided, that the appointment of any
such successor servicer will not result in the qualification, reduction or
withdrawal of the ratings assigned to the Certificates or the ratings that are
in effect by the Rating Agencies as evidenced by a letter to such effect from
the Rating Agencies. Pending appointment of a successor to the Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the successor shall be entitled to receive
compensation
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out of payments on Mortgage Loans in an amount equal to the compensation which
the Servicer would otherwise have received pursuant to Section 3.18 (or such
other compensation as the Trustee and such successor shall agree, not to exceed
the Servicing Fee). The successor servicer shall be entitled to withdraw from
the Collection Account all costs and expenses associated with the transfer of
the servicing to the successor servicer, including costs and expenses of the
Trustee. The appointment of a successor servicer shall not affect any liability
of the predecessor servicer which may have arisen under this Agreement prior to
its termination as Servicer to pay any deductible under an insurance policy
pursuant to Section 3.12 or to indemnify the parties indicated in Section 3.26
pursuant to the terms thereof, nor shall any successor servicer be liable for
any acts or omissions of the predecessor servicer or for any breach by such
servicer of any of its representations or warranties contained herein or in any
related document or agreement. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession.
(b) Any successor, including the Trustee, to the Servicer as servicer
shall during the term of its service as servicer continue to service and
administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Servicer hereunder and a
Fidelity Bond in respect of its officers, employees and agents to the same
extent as the Servicer is so required pursuant to Section 3.12.
Section 7.03 Waiver of Defaults.
The Holders of Certificates entitled to at least 66 2/3% of the Voting
Rights allocated to the Classes of Certificates affected by a Servicer Event of
Termination may, on behalf of all Certificateholders, waive any events
permitting removal of the Servicer as servicer pursuant to this Article VII,
provided, however, that such Holders may not waive a default in making a
required distribution on a Certificate without the consent of the Holder of such
Certificate. Upon any waiver of a past default, such default shall cease to
exist and any Servicer Event of Termination arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereto
except to the extent expressly so waived. Notice of any such waiver shall be
given by the Trustee to the Rating Agencies.
Section 7.04 Notification to Certificateholders.
(a) On any termination or appointment of a successor to the Servicer
pursuant to this Article VII or Section 6.04, the Trustee shall give prompt
written notice thereof to the Certificateholders at their respective addresses
appearing in the Certificate Register and each Rating Agency.
(b) No later than 60 days after the occurrence of any event which
constitutes or which, with notice or a lapse of time or both, would constitute a
Servicer Event of Termination for five Business Days after a Responsible Officer
of the Trustee becomes aware of the occurrence of such an event, the Trustee
shall transmit by mail to all Certificateholders notice of such occurrence
unless such default or Servicer Event of Termination shall have been waived or
cured. Such notice shall be given to the Rating Agencies promptly after any such
occurrence.
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Section 7.05 Survivability of Servicer Liabilities.
Notwithstanding anything herein to the contrary, upon termination of
the Servicer hereunder, any liabilities of the Servicer which accrued prior to
such termination shall survive such termination.
ARTICLE VIII
THE TRUSTEE
Section 8.01 Duties of Trustee.
The Trustee, prior to the occurrence of a Servicer Event of
Termination of which a Responsible Officer of the Trustee shall have actual
knowledge and after the curing of all Servicer Events of Termination which may
have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If a Servicer Event of Termination has
occurred (which has not been cured) of which a Responsible Officer has actual
knowledge, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of such person'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
conform to the requirements of this Agreement; provided, however, that that the
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Servicer, the Seller or the Depositor hereunder. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Trustee shall notify the Certificateholders of such
instrument in the event that the Trustee, after so requesting, does not receive
a satisfactorily corrected instrument.
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 misconduct; provided, however, that:
(i) prior to the occurrence of a Servicer Event of Termination of
which a Responsible Officer of the Trustee shall have actual knowledge, and
after the curing of all such Servicer Events of Termination 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;
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(ii) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining or
investigating the facts related thereto;
(iii) 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 the Majority Certificateholders relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising or omitting to exercise any trust or
power conferred upon the Trustee under this Agreement; and
(iv) the Trustee shall not be charged with knowledge of any failure by
the Servicer to comply with the obligations of the Servicer referred to in
clauses (i) and (ii) of Section 7.01(a) or any Servicer Event of
Termination unless a Responsible Officer of the Trustee at the Corporate
Trust Office obtains actual knowledge of such failure or the Trustee
receives written notice of such failure from the Servicer or the Majority
Certificateholders. In the absence of such receipt of such notice, the
Trustee may conclusively assume that there is no Servicer Event of
Termination.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur 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 the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer under this Agreement, except during such
time, if any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Servicer in accordance with the
terms of this Agreement.
The Trustee shall not have any duty (A) to see any recording, filing,
or depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest, or
to see to the maintenance of any such recording or filing or depositing or to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance or (C) to see to the payment or discharge of any tax, assessment, or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Distribution Account.
The Trustee shall have no duty hereunder with respect to any complaint,
claim, demand, notice or other document it may receive or which may be alleged
to have been delivered to or served upon it by any third party as a consequence
of the assignment of any Mortgage Loan hereunder; provided, however, that the
Trustee shall promptly remit to the Servicer upon receipt of any such complaint,
claim, demand, notice or other document (i) which is delivered to the Trustee at
its Corporate Trust Office; (ii) of which a Responsible Officer has actual
knowledge and (iii) which contains information sufficient to permit the Trustee
to make a determination that the real property to which such document relates to
is a Mortgaged Property.
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Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon, and shall be protected in
acting or refraining from acting upon, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) the Trustee may consult with counsel and any advice or 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;
(c) the Trustee shall not be under any obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation hereunder or in relation hereto, at the request, order or
direction of the Certificateholders pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; the right of the Trustee to perform
any discretionary act enumerated in this Agreement shall not be construed as a
duty, and the Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act;
(d) 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;
(e) prior to the occurrence of a Servicer Event of Termination and
after the curing of all Servicer Events of Termination 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, approval, bond or other paper or
documents, unless requested in writing to do so by the Majority
Certificateholders; 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 reasonable indemnity against such cost,
expense or liability as a condition to such proceeding. The reasonable expense
of every such examination shall be paid by the Servicer or, if paid by the
Trustee, shall be reimbursed by the Servicer upon demand. Nothing in this clause
(v) shall derogate from the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Mortgagors;
(f) the Trustee shall not be accountable, have any liability or make
any representation as to any acts or omissions hereunder of the Servicer until
such time as the Trustee may be required to act as Servicer pursuant to Section
7.02;
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(g) 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 or a custodian and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or custodian
appointed by it with due care; and
(h) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
authentication of the Trustee on the Certificates) shall be taken as the
statements of the Depositor, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Agreement or of the Certificates (other than the
signature and authentication of the Trustee on the Certificates) or of any
Mortgage Loan or Related Document. The Trustee shall not be accountable for the
use or application by the Servicer, or for the use or application of any funds
paid to the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Servicer. The Trustee shall not at
any time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Mortgage or any Mortgage Loan, or
the perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
or its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation: the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon (other than if the Trustee shall assume the duties of
the Servicer pursuant to Section 7.02); the validity of the assignment of any
Mortgage Loan to the Trustee or of any intervening assignment; the completeness
of any Mortgage Loan; the performance or enforcement of any Mortgage Loan (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
7.02); the compliance by the Depositor or the Servicer with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation prior to the Trustee's receipt
of notice or other discovery of any non-compliance therewith or any breach
thereof; any investment of monies by or at the direction of the Servicer or any
loss resulting therefrom, it being understood that the Trustee shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of any of the Servicer (other than if the Trustee shall
assume the duties of the Servicer pursuant to Section 7.02), or any Mortgagor;
any action of the Servicer (other than if the Trustee shall assume the duties of
the Servicer pursuant to Section 7.02), taken in the name of the Trustee; the
failure of the Servicer to act or perform any duties required of it as agent of
the Trustee hereunder; or any action by the Trustee taken at the instruction of
the Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02); provided, however, that the foregoing shall not
relieve the Trustee of its obligation to perform its duties under this
Agreement. The Trustee shall not have any responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder.
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Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not Trustee and may transact any banking and trust business with the
Servicer, the Depositor or their Affiliates.
Section 8.05 Trustee Fees and Expenses.
The Trustee shall be entitled to the Trustee Fee (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 the Trustee in the exercise and
performance of any of the powers and duties hereunder. The Trustee shall
withdraw from the Distribution Account on each Distribution Date and pay to
itself the Trustee Fee. The Trust shall reimburse the Trustee for all reasonable
expenses, disbursements and advances incurred or made by the Trustee 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 or which is the
responsibility of Certificateholders or the Trustee hereunder. In addition, the
Trustee and its officers, directors, employees and agents shall be indemnified
by the Trust from, and held harmless against, any and all losses, liabilities,
damages, claims or expenses incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or negligence of
the Trustee in the performance of its duties hereunder or by reason of the
Trustee's reckless disregard of obligations and duties hereunder. This Section
shall survive termination of this Agreement or the resignation or removal of any
Trustee hereunder. Anything in this Agreement to the contrary notwithstanding,
in no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including, but not limited to, lost
profits) even if the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an entity duly organized
and validly existing under the laws of the United States of America or any state
thereof, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and a minimum long-term
debt rating of BBB by Fitch and S&P and a long term debt rating of at least "A1"
or better by ▇▇▇▇▇'▇ and subject to supervision or examination by federal or
state authority. If such entity 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 8.06, the combined
capital and surplus of such entity shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
The principal office of the Trustee (other than the initial Trustee) shall be in
a state with respect to which an Opinion of Counsel has been delivered to such
Trustee at the time such Trustee is appointed Trustee to the effect that the
Trust will not be a taxable entity under the laws of such state. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section 8.06, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07.
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Section 8.07 Resignation or Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Servicer
and each Rating Agency. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee. If no successor Trustee shall have been so
appointed and having 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 8.06 and shall fail to resign after written
request therefor by the Depositor, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of their property shall be appointed, or any public
officer shall take charge or control of the Trustee or of their property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee. If the Depositor removes the Trustee under the
authority of the immediately preceding sentence, the Depositor shall promptly
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 Majority Certificateholders may at any time remove the Trustee by
written instrument or instruments delivered to the Servicer, the Depositor and
the Trustee; the Depositor shall thereupon use its best efforts to appoint a
successor Trustee in accordance with this Section.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Section 8.08 Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Rating Agencies, the
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 Trustee, without any further act,
deed or conveyance, 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. The Depositor, the Servicer and the predecessor
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 8.06 and the appointment of such
successor Trustee shall not result in
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a downgrading of the Regular Certificates by either Rating Agency, as evidenced
by a letter from each Rating Agency.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the successor Trustee shall mail notice of the appointment of
a successor Trustee hereunder to all Holders of Certificates at their addresses
as shown in the Certificate Register and to each Rating Agency.
Section 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the business of the Trustee, shall be the successor of the
hereunder, provided such entity shall be eligible under the provisions of
Section 8.06 and 8.08, 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 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust or any Mortgaged Property may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Servicer and the Trustee may consider necessary or
desirable. Any such co-trustee or separate trustee shall be subject to the
written approval of the Servicer. If the Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
the case a Servicer Event of Termination shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor Trustee under Section 8.06, and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required under
Section 8.08.
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 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
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the 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
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the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) no trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Servicer and the Trustee, acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee
except that following the occurrence of a Servicer Event of Termination,
the Trustee acting alone may accept the resignation or remove any separate
trustee or co-trustee.
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 or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. 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 filed with the Trustee and a copy thereof given to the
Depositor, the Rating Agencies and the Servicer.
Any separate trustee or co-trustee 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.
Section 8.11 Limitation of Liability.
The Certificates are executed by the Trustee, not in its individual
capacity but solely as Trustee of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the undertakings
and agreements made on the part of the Trustee in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust.
Section 8.12 Trustee May Enforce Claims Without Possession of
Certificates.
(a) All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee for the benefit of all
Holders of such Certificates, subject to the provisions of this Agreement. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursement and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
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(b) The Trustee shall afford the Depositor, the Servicer and each
Certificateholder upon reasonable notice during normal business hours, access to
all records maintained by the Trustee in respect of its duties hereunder and
access to officers of the Trustee responsible for performing such duties. The
Trustee shall cooperate fully with the Servicer, the Depositor and such
Certificateholder and shall make available to the Servicer, the Depositor and
such Certificateholder for review and copying at the expense of the party
requesting such copies, such books, documents or records as may be requested
with respect to the Trustee's duties hereunder. The Depositor, the Servicer and
the Certificateholders shall not have any responsibility or liability for any
action or failure to act by the Trustee and are not obligated to supervise the
performance of the Trustee under this Agreement or otherwise.
Section 8.13 Suits for Enforcement.
In case a Servicer Event of Termination or other default by the
Servicer hereunder shall occur and be continuing, the Trustee may proceed to
protect and enforce its rights and the rights of the Certificateholders under
this Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this Agreement
or for the enforcement of any other legal, equitable or other remedy, as the
Trustee, being advised by counsel, and subject to the foregoing, shall deem most
effectual to protect and enforce any of the rights of the Trustee and the
Certificateholders.
Section 8.14 Waiver of Bond Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee post a bond or other surety with any
court, agency or body whatsoever.
Section 8.15 Waiver of Inventory, Accounting and Appraisal
Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE IX
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 9.01 REMIC Administration.
(a) The Trustee shall make or cause to be made REMIC elections for
each of REMIC 1 and REMIC 2 as set forth in the Preliminary Statement on Forms
1066 or other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. The regular interests and residual interest in each REMIC shall be as
designated in the Preliminary Statement.
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(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code.
(c) The Trustee shall pay any and all tax related expenses (not
including taxes) of each REMIC, including but not limited to any professional
fees or expenses related to audits or any administrative or judicial proceedings
with respect to such REMIC that involve the Internal Revenue Service or state
tax authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Trustee in fulfilling its duties hereunder. The Trustee shall
be entitled to reimbursement of expenses to the extent provided in clause (i)
above from the Trust.
(d) The Trustee shall prepare or cause to be prepared, sign and file
or cause to be filed, each REMIC's federal and state tax and information returns
as such REMIC's direct representative. The expenses of preparing and filing such
returns shall be borne by the Trustee.
(e) The Holder of the Class R Certificate shall be the "tax matters
person" as defined in the REMIC Provisions (the "Tax Matters Person") with
respect to a REMIC, and the Trustee is irrevocably designated as and shall act
as attorney-in-fact and agent for such Tax Matters Person for each REMIC. The
Trustee, as agent for the Tax Matters Person, shall perform, on behalf of each
REMIC, all reporting and other tax compliance duties that are the responsibility
of such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or other
such guidance, the Trustee, as agent for the Tax Matters Person, shall provide
(i) to the Treasury or other governmental authority such information as is
necessary for the application of any tax relating to the transfer of the Class R
Certificate to any disqualified person or organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(f) The Trustee, the Servicer, and the Holders of Certificates shall
take any action or cause any REMIC formed under this Agreement to take any
action necessary to create or maintain the status of such REMIC as a REMIC under
the REMIC Provisions and shall assist each other as necessary to create or
maintain such status. None of the Trustee, the Servicer or the Holder of the
Class R Certificate shall take any action or cause any REMIC formed under this
Agreement to take any action or fail to take (or fail to cause to be taken) any
action that, under the REMIC Provisions, if taken or not taken, as the case may
be, could (i) endanger the status of such REMIC as a REMIC or (ii) result in the
imposition of a tax upon such REMIC (including but not limited to the tax on
prohibited transactions as defined in Code Section 860F(a)(2) and the tax on
prohibited contributions set forth on Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless the Trustee and the Servicer have
received an Opinion of Counsel (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such a tax. In addition, prior to taking any
action with respect to any REMIC formed under this Agreement or the assets
therein, or causing such REMIC to take any action, which is not expressly
permitted under the terms of this Agreement, any Holder of the Class R
Certificate will consult with the Trustee and the Servicer, or their respective
designees, in writing, with respect
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to whether such action could cause an Adverse REMIC Event to occur with respect
to such REMIC, and no such Person shall take any such action or cause such REMIC
to take any such action as to which the Trustee or the Servicer has advised it
in writing that an Adverse REMIC Event could occur.
(g) The Holder of the Class R Certificate shall pay when due any and
all taxes imposed on any REMIC formed under this Agreement by federal or state
governmental authorities, but only from amounts, if any, distributable thereon.
To the extent that such REMIC taxes are not paid by the Class R
Certificateholder, the Trustee shall pay any remaining REMIC taxes out of future
amounts otherwise distributable to the Holder of the Class R Certificate or, if
no such amounts are available, out of other amounts held in the Distribution
Account, and shall reduce amounts otherwise payable to Holders of the REMIC
Regular Interests or the Certificates, as the case may be.
(h) The Trustee, shall, for federal income tax purposes, maintain or
cause to be maintained books and records with respect to each REMIC formed under
this Agreement on a calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement with respect to Eligible
Substitute Mortgage Loans.
(j) Neither the Trustee nor the Servicer shall enter into any
arrangement by which any REMIC will receive a fee or other compensation for
services.
(k) On or before April 15 of each calendar year beginning in 2004, the
Trustee shall deliver to each Rating Agency an Officer's Certificate stating the
Trustee's compliance with the provisions of this Section 9.01.
(l) The Trustee shall treat (i) the rights of the Offered Certificates
to receive Cap Carryover Amounts as a right in interest rate cap contracts
written by the Class CE Certificateholders in favor of the Holders of the
Offered Certificates and (ii) the rights of the Class CE Certificates under the
Yield Maintenance Agreement in accordance with the terms thereof and shall
assign such rights for federal tax return and information reporting a value of
zero. The Trustee shall account for such as property held separate and apart
from the regular interests it holds in each of the REMICs created hereunder. The
provisions of this paragraph are intended to satisfy the requirements of
Treasury Regulations Section 1.860G-2(i) for the treatment of property rights
coupled with regular interests to be separately respected and shall be
interpreted consistent with such regulation. On each Distribution Date, to the
extent the Offered Certificates receive interest in excess of their Certificate
Interest Rate, such interest will be treated as distributed to the Class CE
Certificates, together with any amount deposited in the Reserve Account in
respect of the Yield Maintenance Agreement, and then paid to the respective
Classes of Offered Certificates pursuant to the related interest rate cap
agreement.
Section 9.02 Prohibited Transactions and Activities.
None of the Depositor, the Servicer or the Trustee shall sell, dispose
of, or substitute for any of the Mortgage Loans, except in a disposition
pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the
Trust Fund, (iii) the termination of any REMIC
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pursuant to Article X of this Agreement, (iv) a substitution pursuant to Article
II of this Agreement, (v) a repurchase of Mortgage Loans pursuant to Article II
of this Agreement or (vi) an optional purchase by the Servicer pursuant to
Section 3.16 of this Agreement, nor acquire any assets for any REMIC, nor sell
or dispose of any investments in the Distribution Account for gain, nor accept
any contributions to any REMIC after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale, disposition,
or substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of such REMIC as a REMIC or of the
interests therein other than the Class R Certificate as the regular interests
therein, (b) affect the distribution of interest or principal on the
Certificates, (c) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause such REMIC to be subject to a tax on prohibited transactions or
prohibited contributions pursuant to the REMIC Provisions.
Section 9.03 Indemnification with Respect to Certain Taxes and Loss of
REMIC Status.
In the event that any REMIC formed hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Servicer of its duties and
obligations set forth herein, the Servicer shall indemnify the Holder of the
Class R Certificate against any and all losses, claims, damages, liabilities or
expenses ("Losses") resulting from such negligence; provided, however, that the
Servicer shall not be liable for any such Losses attributable to the action or
inaction of the Trustee, the Depositor or the Holder of the Class R Certificate,
as applicable, nor for any such Losses resulting from misinformation provided by
the Holder of the Class R Certificate on which the Servicer has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holder of the Class R Certificate now or hereafter existing at law or in
equity. Notwithstanding the foregoing, however, in no event shall the Servicer
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Servicer of its duties and obligations set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on the
Certificates).
Section 9.04 REO Property.
(a) Subject to compliance with applicable laws and regulations as
shall at any time be in force, and notwithstanding any other provision of this
Agreement, the Servicer, acting on behalf of the Trust hereunder, shall not
rent, lease, or otherwise earn income on behalf of any REMIC with respect to any
REO Property which might cause such REO Property to fail to qualify as
"foreclosure" property within the meaning of section 860G(a)(8) of the Code or
result in the receipt by any REMIC of any "income from non-permitted assets"
within the meaning of section 860F(a)(2) of the Code or any "net income from
foreclosure property" which is subject to tax under the REMIC Provisions unless
the Servicer has advised, or has caused the applicable Servicer to advise, the
Trustee in writing to the effect that, under the REMIC Provisions, such action
would not adversely affect the status of any REMIC as a REMIC and any income
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generated for such REMIC by the REO Property would not result in the imposition
of a tax upon such REMIC.
(b) The Servicer shall make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Servicer shall
dispose of any REO Property before the close of the third calendar year
beginning after the year of its acquisition by the Trust Fund unless the
Servicer has received a grant of extension from the Internal Revenue Service to
the effect that, under the REMIC Provisions and any relevant proposed
legislation and under applicable state law, any REMIC may hold REO Property for
a longer period without adversely affecting its REMIC status or causing the
imposition of a Federal or state tax upon any REMIC. If the Servicer has
received such an extension, then the Servicer shall continue to attempt to sell
the REO Property for its fair market value as determined in good faith by the
Servicer for such longer period as such extension permits (the "Extended
Period"). If the Servicer has not received such an extension and the Servicer is
unable to sell the REO Property within 33 months after its acquisition by the
Trust Fund or if the Servicer has received such an extension, and the Servicer
is unable to sell the REO Property within the period ending three months before
the close of the Extended Period, the Servicer shall, before the end of the
applicable period, (i) purchase such REO Property at a price equal to the REO
Property's fair market value as determined in good faith by the Servicer or (ii)
auction the REO Property to the highest bidder (which may be the Servicer) in an
auction reasonably designed to produce a fair price prior to the expiration of
the applicable period.
Section 9.05 Grantor Trust Administration.
The parties intend that the portions of the Trust Fund consisting of
(i) the right of the Class P Certificates to receive Prepayment Charges,
Originator Prepayment Charge Payment Amounts and Servicer Prepayment Charge
Payment Amounts, (ii) the right of the Offered Certificates to receive Cap
Carryover Amounts, (iii) the Yield Maintenance Agreement, the related Reserve
Account and the right of the Class CE Certificates to receive Yield Maintenance
Agreement Payments and (iv) the obligation of the Class CE Certificates to pay
Cap Carryover Amounts shall be treated as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished (i) to the Holders of the Offered Certificates and (ii) to the Holder
of the Class CE Certificates and shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable, their allocable shares of income and expenses with respect to the
property held by the Grantor Trust, at the time or times and in the manner
required by the Code.
ARTICLE X
TERMINATION
Section 10.01 Termination.
(a) The respective obligations and responsibilities of the Servicer,
the Depositor, the Trustee and the Certificate Registrar created hereby (other
than the obligation of the Trustee to make certain payments to
Certificateholders after the final Distribution Date and
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the obligation of the Servicer to send certain notices as hereinafter set forth)
shall terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balance of each Class of
Certificates has been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, and (iii) the optional
purchase by the Majority Class CE Certificateholder as described below.
Notwithstanding the foregoing, 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 Majority Class CE Certificateholder or, if (i) such Holder is the
Seller or an Affiliate of the Seller or (ii) there is no Majority Class CE
Certificateholder, the Servicer, may, at its option, terminate the Trust Fund
and retire the Offered Certificates on the next succeeding Distribution Date
upon which the aggregate current Pool Balance is less than 10% of the aggregate
Pool Balance of the Mortgage Loans as of the Cut-off Date by purchasing all of
the outstanding (i) Mortgage Loans in the Trust Fund at a price equal to the sum
of the outstanding Principal Balance of the Mortgage Loans and except to the
extent previously advanced by the Servicer, accrued and unpaid interest thereon
at the weighted average of the Mortgage Interest Rates through the end of the
Collection Period preceding the final Distribution Date plus unreimbursed
Servicing Advances, Advances and any unpaid Servicing Fees allocable to such
Mortgage Loans and (ii) REO Properties in the Trust Fund at a price equal to
their fair market value as determined in good faith by the Servicer (the
"Termination Price"). If the Majority Class CE Certificateholder is subject to
regulation by the OCC, the FDIC, the Federal Reserve or the Office of Thrift
Supervision, however, the option may not be exercised unless the aggregate fair
market value of the Mortgage Loans and REO Properties is greater than or equal
to the Termination Price. Notwithstanding the foregoing, no party may exercise
this optional purchase right unless any Reimbursement Amount owed to the Trust
pursuant to Section 2.03 hereof has been paid.
In connection with any such purchase pursuant to the preceding
paragraph, the Servicer shall deliver to the Trustee for deposit in the
Distribution Account all amounts then on deposit in the Collection Account (less
amounts permitted to be withdrawn by the Servicer pursuant to Section 3.07),
which deposit shall be deemed to have occurred immediately following such
purchase.
Any such purchase shall be accomplished by delivery on the
Determination Date before such Distribution Date of the Termination Price to the
Trustee for deposit into the Distribution Account as part of Available Funds.
(b) Notice of any termination, specifying the 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 upon the Trustee receiving notice of such date from the Majority Class
CE Certificateholder by letter to the Certificateholders mailed not earlier than
the 15th day of the month preceding the month of such final distribution and not
later than the 15th day of the month of such final distribution specifying (1)
the Distribution Date upon which final distribution of the Certificates will be
made upon presentation and surrender of such Certificates at the office or
agency of the Trustee therein designated, (2) the amount of any such final
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distribution and (3) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein specified. Not less than five (5) Business Days prior to such
Determination Date relating to such Distribution Date, the Trustee shall notify
the Originator and the Seller of the amount of any unpaid Reimbursement Amount
owed to the Trust.
(c) Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed to
such Holders in accordance with the provisions of Sections 4.01 and 4.02 for
such Distribution Date.
(d) In the event that all Certificateholders shall not surrender their
Certificates for final payment and cancellation on or before such final
Distribution Date, the Trustee shall promptly following such date cause all
funds in the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate escrow account for the
benefit of such Certificateholders, and the Servicer shall give a second written
notice to the remaining Certificateholders, to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
nine months after the second notice all the Certificates shall not have been
surrendered for cancellation, the Class R Certificateholder shall be entitled to
all unclaimed funds and other assets which remain subject hereto (except with
respect to the Class CE and Class P Certificates) and the Trustee upon transfer
of such funds shall be discharged of any responsibility for such funds, and all
other Certificateholders shall look to the Class R Certificateholder for
payment.
Section 10.02 Additional Termination Requirements.
(a) In the event that the Majority Class CE Certificateholder
exercises its purchase option as provided in Section 10.01, the Trust shall be
terminated in accordance with the following additional requirements, unless the
Trustee shall have been furnished with an Opinion of Counsel to the effect that
the failure of the Trust to comply with the requirements of this Section will
not (i) result in the imposition of taxes on "prohibited transactions" of the
Trust as defined in Section 860F of the Code or (ii) cause any REMIC
constituting part of the Trust Fund to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(i) The Trustee shall designate a date within 90 days prior to the
final Distribution Date as the date of adoption of plans of complete
liquidation of each of REMIC 1 and REMIC 2 and shall specify such date in
the final federal income tax return of each REMIC;
(ii) After the date of adoption of such plans of complete liquidation
and at or prior to the final Distribution Date, the Trustee shall sell all
of the assets of the Trust to the Majority Class CE Certificateholders or
the Servicer, as applicable, for cash; and
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(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited in the following order of priority (A) (i) to the
Holders of each of the Class A-1, Class A-2 and Class A-3 Certificates, pro
rata, and (ii) to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5
and Class M-6 Certificates, the related Certificate Principal Balance, as
applicable, plus one month's interest thereon at the applicable
Pass-Through Rate, (B) to the Class CE Certificates, the amount of any
remaining Monthly Excess Cash Flow Amounts not previously distributed
thereon, (C) to the remaining REMIC Regular Interests the amounts allocable
thereto pursuant to Section 4.08 and (D) to the Class R Certificateholder,
all cash on hand in respect of the REMICs after such payment (other than
cash retained to meet claims) and the Trust shall terminate at such time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to appoint the Trustee as their attorney in fact to: (i) designate such
date of adoption of plans of complete liquidation and (ii) to take such other
action in connection therewith as may be reasonably required to carry out such
plans of complete liquidation all in accordance with the terms hereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee; and without the consent of the Certificateholders, (i)
to cure any ambiguity or mistake, (ii) to correct, modify or supplement any
provision herein which may be inconsistent with any other provision herein or
the Prospectus Supplement, (iii) to make any other provisions with respect to
matters or questions arising under this Agreement, which shall not be
inconsistent with the provisions of this Agreement; or (iv) to comply with any
requirements imposed by the Code; provided, however, that any such action listed
in clause (iii) above shall not adversely affect in any respect the interests of
any Certificateholder, as evidenced by (i) notice in writing to the Depositor,
the Servicer and the Trustee from the Rating Agencies that such action will not
result in the reduction or withdrawal of the rating of any outstanding Class of
Certificates with respect to which it is a Rating Agency, or (ii) an Opinion of
Counsel delivered to the Servicer and the Trustee.
In addition, this Agreement may be amended from time to time by the
Depositor, the Servicer and the Trustee, with the consent of the Majority
Certificateholders for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment or waiver shall (x) reduce in any manner the
amount of, or delay the timing of, payments on the Certificates which are
required to be made on any Certificate without the consent of the Holder of such
Certificate, (y) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (x) above, without the consent of the Holders of Certificates of such
Class evidencing at least a majority of the Percentage Interest in such Class,
or (z) reduce the
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percentage of Voting Rights required by clause (y) above without the consent of
the Holders of all Certificates of such Class then outstanding. Upon approval of
an amendment, a copy of such amendment shall be sent to the Rating Agencies.
Prior to the execution of any amendment to this Agreement, the Trustee shall be
entitled to receive and rely upon an Opinion of Counsel (at the expense of the
Person seeking such amendment) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Trustee's own
rights, duties or immunities under this Agreement.
Notwithstanding any provision of this Agreement to the contrary, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, delivered by (and at the expense of)
the Person seeking such Amendment, to the effect that such amendment will not
result in the imposition of a tax on any REMIC constituting part of the Trust
Fund pursuant to the REMIC Provisions or cause any REMIC constituting part of
the Trust Fund to fail to qualify as a REMIC at any time that any Certificates
are outstanding and that the amendment is being made in accordance with the
terms hereof.
Promptly after the execution of any such amendment the Trustee shall
furnish, at the expense of the Person that requested the amendment if such
Person is the Servicer (but in no event at the expense of the Trustee),
otherwise at the expense of the Trust, a copy of such amendment and the Opinion
of Counsel referred to in the immediately preceding paragraph to the Servicer
and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment;
instead 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.
Section 11.02 Recordation of Agreement; Counterparts.
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
Servicer at the expense of the Trust, but only upon direction of
Certificateholders, 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 together constitute but
one and the same instrument.
Section 11.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not (i) operate
to terminate this Agreement or the Trust, (ii) entitle such Certificateholder's
legal representatives or heirs to
-131-
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust, or (iii) otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Except as expressly provided for herein, no Certificateholder shall
have any right to vote or in any manner otherwise control the operation and
management of the Trust, 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 shall have any right by virtue 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 herein provided, and unless also the Holders of
Certificates entitled to at least 25% of the Voting Rights 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 costs, 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 is understood
and intended, and 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 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, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03 each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law; Jurisdiction.
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. With respect to any
claim arising out of this Agreement, each party irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in The City of New
York, and each party irrevocably waives any objection which it may have at any
time to the laying of venue of any suit, action or proceeding arising out of or
relating hereto brought in any such courts, irrevocably waives any claim that
any such suit, action or proceeding brought in any such court has been brought
in any inconvenient forum and further irrevocably waives the right to object,
with respect to such claim, suit, action or proceeding brought in any such
court, that such court does not have jurisdiction over such party, provided that
service of process has been made by any lawful means.
-132-
Section 11.05 Notices.
All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed by
first class mail, postage prepaid, or by express delivery service, to (a) in the
case of the Trustee, JPMorgan Chase Bank, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Global Debt Services: ABFC 2003-WMC1, or such
other address as may hereafter be furnished to the Depositor and the Servicer in
writing by the Trustee, (b) in the case of the Depositor, Asset Backed Funding
Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ABFC Asset-Backed Certificates, Series 2003-WMC1, or such
other address as may be furnished to the Servicer and the Trustee in writing by
the Depositor, and (c) in the case of the Servicer, HomEq Servicing Corporation,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Portfolio
Management, with a copy to HomEq Servicing Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal
Department, or such other address as may be hereafter furnished to the Depositor
and the Trustee by the Servicer in writing. 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.
Notice of any Servicer Event of Termination shall be given by telecopy and by
certified mail. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have duly been given when mailed,
whether or not the Certificateholder receives such notice. A copy of any notice
required to be telecopied hereunder shall also be mailed to the appropriate
party in the manner set forth above.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall for any reason whatsoever be 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 11.07 Article and Section References.
All article and section references used in this Agreement, unless
otherwise provided, are to articles and sections in this Agreement.
Section 11.08 Notice to the Rating Agencies.
(a) Each of the Trustee and the Servicer shall be obligated to use its
best reasonable efforts promptly to provide notice to the Rating Agencies with
respect to each of the following of which a Responsible Officer of the Trustee
or the Servicer, as the case may be, has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Servicer Event of Termination that has not
been cured or waived;
-133-
(iii) the resignation or termination of the Servicer or the Trustee;
(iv) the final payment to Holders of the Certificates of any Class;
(v) any change in the location of any Account; and
(vi) if the Trustee is acting as successor servicer pursuant to
Section 7.02 hereof, any event that would result in the inability of the
Trustee to make Advances.
(vii) In addition, the Servicer shall promptly furnish to each Rating
Agency copies of the following:
(A) each annual statement as to compliance described in Section
3.19 hereof;
(B) each annual independent public accountants' servicing report
described in Section 3.20 hereof; and
(C) each notice delivered pursuant to Section 7.01(a) hereof
which relates to the fact that the Servicer has not made an Advance.
Any such notice pursuant to this Section 11.08 shall be in writing and
shall be deemed to have been duly given if personally delivered or mailed by
first class mail, postage prepaid, or by express delivery service to: Fitch
Ratings, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Managing
Director, Residential Mortgage-Backed Securities; ▇▇▇▇▇'▇ Investors Service,
Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Attention: Managing
Director, Residential Mortgage-Backed Securities; and Standard & Poor's, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Mortgage Surveillance Group.
Section 11.09 Further Assurances.
Notwithstanding any other provision of this Agreement, neither the
Regular Certificateholders nor the Trustee shall have any obligation to consent
to any amendment or modification of this Agreement unless they have been
provided reasonable security or indemnity against their out-of-pocket expenses
(including reasonable attorneys' fees) to be incurred in connection therewith.
Section 11.10 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, expressed or
implied, shall give to any Person, other than the Certificateholders and the
parties hereto and their successors hereunder, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
Section 11.11 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Certificateholders may be
-134-
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by agent duly appointed in
writing; and such action shall become effective when such instrument or
instruments are delivered to the Trustee and the Servicer. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "act" of the Certificateholders signing such
instrument or instruments. 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 and the Trust, if made in the
manner provided in this Section 11.11.
(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 the 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. Whenever
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 authority.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by any Certificateholder shall bind every future Holder
of such 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 or the
Trust in reliance thereon, whether or not notation of such action is made upon
such Certificate.
-135-
IN WITNESS WHEREOF, the Depositor, the 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.
ASSET BACKED FUNDING CORPORATION,
as Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
Title: Vice President
HOMEQ SERVICING CORPORATION,
as Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
JPMORGAN CHASE BANK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trust Officer
Solely with respect to Sections 3.22 and 3.29 of the Agreement,
acknowledged and agreed to as of the date first written above.
THE MURRAYHILL COMPANY,
as Credit Risk Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and General Counsel
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 25th day of November, 2003 before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇, known to me to be a
Vice President of Asset Backed Funding Corporation, a Delaware corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
[NOTARY SEAL] /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
My Commission Expires 12/15/07
STATE OF NEW YORK )
) ss.:
COUNTY OF NY )
On the 25th day of November, 2003 before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be a Trust
Officer of JPMorgan Chase Bank, a New York banking corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said association, and acknowledged to me that such association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public
[NOTARY SEAL]
STATE OF CALIFORNIA )
) ss.:
COUNTY OF )
On the 25th day of November, 2003 before me, a notary public in and
for said State, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇, known to me to be a
President of HomEq Servicing Corporation, a New Jersey corporation, that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
[NOTARY SEAL]
EXHIBIT A-1
[FORM OF THE CLASS A-1 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS A-1
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class A-1 Original Class Certificate Principal Balance of
the Class A-1 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $212,422,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $212,422,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B DX 7 Closing Date: November 25, 2003
ISIN: US04542BDX73
A-1-1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class A-1
Certificates) in that certain beneficial ownership interest evidenced by all the
Class A-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
A-1 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class A-1 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class A-1
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
A-1-2
The Certificate Interest Rate for the Class A-1 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class A-1 Certificate Margin, (ii) the Group 1
Maximum Rate Cap and (iii) the Group 1 Cap. Interest will accrue on the Class
A-1 Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class A-1 Certificates.
The Class A-1 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified in the Agreement. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited 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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any
A-1-3
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be paid to them
pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund, and (ii) the purchase by the party designated
in the Agreement at a price determined as provided in the Agreement from the
Trust Fund of all Mortgage Loans and all property acquired in respect of such
Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from the Trust Fund all 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 right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Principal Balance of the Mortgage Loans at the time of purchase
being 10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
------------------------------------
Authorized Signatory
Date of authentication: November 25, 2003
A-1-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
A-1-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF THE CLASS A-2 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS A-2
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class A-2 Original Class Certificate Principal Balanceof
the Class A-2 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $106,783,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $106,783,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B DY 5 Closing Date: November 25, 2003
ISIN: US04542BDY56
A-2-1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class A-2
Certificates) in that certain beneficial ownership interest evidenced by all the
Class A-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
A-2 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class A-2 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class A-2
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
A-2-2
The Certificate Interest Rate for the Class A-2 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class A-2 Certificate Margin, (ii) the Group 2
Maximum Rate Cap and (iii) the Group 2 Cap. Interest will accrue on the Class
A-2 Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class A-2 Certificates.
The Class A-2 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified in the Agreement. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited 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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any
A-2-3
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the Mortgage Loans at the time of purchase being 10% or
less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
Date of authentication:
A-2-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)______________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
A-2-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF THE CLASS A-3 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS A-3
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class A-3 Original Class Certificate Principal Balance of
the Class A-3 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $27,549,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $27,549,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B DZ 2 Closing Date: November 25, 2003
ISIN: US04542BDZ22
A-3-1
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class A-3
Certificates) in that certain beneficial ownership interest evidenced by all the
Class A-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
A-3 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class A-3 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class A-3
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
A-3-2
The Certificate Interest Rate for the Class A-3 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class A-3 Certificate Margin, (ii) the Group 2
Maximum Rate Cap and (iii) the Group 2 Cap. Interest will accrue on the Class
A-3 Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class A-3 Certificates.
The Class A-3 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer and the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified in the Agreement. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited 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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any
A-3-3
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the Mortgage Loans at the time of purchase being 10% or
less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
Date of authentication: November 25, 2003
A-3-5
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
A-3-6
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-1 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
B-1-1
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS M-1
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class M-1 Original Class Certificate Principal Balance of the
Class M-1 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $27,612,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $27,612,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B EA 6 Closing Date: November 25, 2003
ISIN: US04542BEA61
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class M-1
Certificates) in that certain beneficial ownership interest evidenced by all the
Class M-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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.
B-1-2
Pursuant to the terms of the Agreement, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
M-1 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class M-1 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class M-1
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-1 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-1 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-1
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class M-1 Certificates.
The Class M-1 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates as described in the Agreement referred to herein.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by
B-1-3
the Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates entitled to the Voting Rights identified in the Agreement. 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 herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the
B-1-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-1 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
Date of authentication: November 25, 2003
B-1-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
B-1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-2 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AND THE CLASS M-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
B-2-1
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS M-2
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class M-2 Original Class Certificate Principal Balance of the
Class M-2 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $19,478,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $19,478,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B EB 4 Closing Date: November 25, 2003
ISIN: US04542BEB45
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class M-2
Certificates) in that certain beneficial ownership interest evidenced by all the
Class M-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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.
B-2-2
Pursuant to the terms of the Agreement, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
M-2 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class M-2 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class M-2
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-2 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-2 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-2
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class M-2 Certificates.
The Class M-2 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates and the Class M-1 Certificates as described in the Agreement
referred to herein.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the
B-2-3
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates entitled to the Voting Rights identified in the Agreement. 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 herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the
B-2-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-2 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
Date of authentication: November 25, 2003
B-2-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
B-2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-3 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
B-3-1
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS M-3
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class M-3 Original Class Certificate Principal Balance of the
Class M-3 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $9,418,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $9,418,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B EC 2 Closing Date: November 25, 2003
ISIN: US04542BEC28
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class M-3
Certificates) in that certain beneficial ownership interest evidenced by all the
Class M-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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.
B-3-2
Pursuant to the terms of the Agreement, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
M-3 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class M-3 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class M-3
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-3 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-3 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-3
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class M-3 Certificates.
The Class M-3 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, the Class M-1 Certificates and the Class M-2 Certificates as
described in the Agreement referred to herein.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the
B-3-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified in the Agreement. 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 herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the
B-3-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-3 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
Date of authentication: November 25, 2003
B-3-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as -------------------
tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
B-3-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-4 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND
THE CLASS M-3 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
B-4-1
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS M-4
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class M-4 Original Class Certificate Principal Balance of the
Class M-4 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $6,421,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $6,421,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B ED 0 Closing Date: November 25, 2003
ISIN: US04542BED01
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class M-4
Certificates) in that certain beneficial ownership interest evidenced by all the
Class M-4 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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.
B-4-2
Pursuant to the terms of the Agreement, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
M-4 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class M-4 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class M-4
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-4 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-4 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-4
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class M-4 Certificates.
The Class M-4 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, the Class M-1 Certificates, the Class M-2 Certificates and the
Class M-3 Certificates as described in the Agreement referred to herein.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the
B-4-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified in the Agreement. 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 herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the
B-4-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-4 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
Date of authentication: November 25, 2003
B-4-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ------------------
tenants in common (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
B-4-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-5 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE
CLASS M-3 CERTIFICATES AND CLASS M-4 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
B-5-1
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS M-5
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class M-5 Original Class Certificate Principal Balance of the
Class M-5 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $5,565,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $5,565,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B EE 8 Closing Date: November 25, 2003
ISIN: US04542BEE83
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class M-5
Certificates) in that certain beneficial ownership interest evidenced by all the
Class M-5 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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.
B-5-2
Pursuant to the terms of the Agreement, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
M-5 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class M-5 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class M-5
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-5 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-5 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-5
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class M-5 Certificates.
The Class M-5 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, the Class M-1 Certificates, the Class M-2 Certificates, the Class
M-3 Certificates and Class M-4 Certificates as described in the Agreement
referred to herein.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the
B-5-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified in the Agreement. 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 herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the
B-5-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-5-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-5 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
------------------------------------
Authorized Signatory
Date of authentication: November 25, 2003
B-5-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as -----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
B-5-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS M-6 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE
CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES AND THE CLASS M-5
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND CERTAIN OTHER PROPERTY.
B-6-1
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS M-6
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class M-6 Original Class Certificate Principal Balance of the
Class M-6 Certificates as of the Closing
Certificate Interest Rate: Floating Date: $5,137,000.00
Date of Pooling and Servicing Agreement and Initial Certificate Principal Balance:
Cut-off Date: November 1, 2003 $5,137,000.00
First Distribution Date: December 26, 2003 Servicer: HomEq Servicing Corporation
No. 1 Trustee: JPMorgan Chase Bank
CUSIP: 04542B EF 5 Closing Date: November 25, 2003
ISIN: US04542BEF58
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a Percentage
Interest (obtained by dividing the Initial Certificate Principal Balance of this
Certificate by the Original Class Certificate Principal Balance of the Class M-6
Certificates) in that certain beneficial ownership interest evidenced by all the
Class M-6 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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.
B-6-2
Pursuant to the terms of the Agreement, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Business Day immediately preceding such
Distribution Date (the "Record Date"), from funds in the Distribution Account in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
M-6 Certificates on such Distribution Date pursuant to the Agreement; provided,
however, that if any Class M-6 Certificate becomes a Definitive Certificate, the
Record Date for such Certificate will be the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class M-6
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
The Certificate Interest Rate for the Class M-6 Certificates for each
Distribution Date will be the least of (i) One-Month LIBOR as of the related
LIBOR Determination Date plus the Class M-6 Certificate Margin, (ii) the Pool
Maximum Rate Cap and (iii) the Pool Cap. Interest will accrue on the Class M-6
Certificates during each Interest Accrual Period at the Certificate Interest
Rate.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing a Percentage Interest
in the Class M-6 Certificates.
The Class M-6 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
This certificate is subordinated in right of payment to the Class A
Certificates, the Class M-1 Certificates, the Class M-2 Certificates, the Class
M-3 Certificates, the Class M-4 Certificates and the Class M-5 Certificates as
described in the Agreement referred to herein.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the
B-6-3
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates entitled to the Voting Rights identified in the Agreement. 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 herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
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 of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the
B-6-4
Mortgage Loans at the time of purchase being 10% or less of the Cut-off Date
Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
B-6-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-6 Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
Date of authentication: November 25, 2003
B-6-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as -----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
B-6-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
B-6-8
EXHIBIT C-1
[FORM OF CLASS CE CERTIFICATES]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A DIRECT
OR INDIRECT BENEFICIAL INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") AND CERTAIN OTHER PROPERTY.
THIS CLASS CE CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES OF
THIS SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CLASS CE CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS CE CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY
MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
WILL BE REGISTERED.
C-1-1
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS CE
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class CE Servicer: HomEq Servicing Corporation
Date of Pooling and Servicing Agreement and Trustee: JPMorgan Chase Bank
Cut-off Date: November 1, 2003
First Distribution Date: December 26, 2003 Closing Date: November 25, 2003
No. 1
Percentage Interest: 100%
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that ▇▇▇▇ & Co. is the registered owner of a Percentage
Interest set forth above in that certain beneficial ownership interest evidenced
by all the Class CE Certificates in the Trust Fund created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs (the "Record
Date"), from funds in the Distribution Account in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class CE Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately
C-1-2
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Certificate Registrar in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date and is the registered owner of Class CE Certificates, or by check mailed by
first class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register, provided that the Certificate
Registrar may deduct a reasonable wire transfer fee from any payment made by
wire transfer. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose as provided in the
Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Mortgage Loan Asset-Backed Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
the Percentage Interest specified on the face hereof.
The Class CE 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified in the Agreement. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited 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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are
C-1-3
exchangeable for new Certificates of the same Class in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No transfer of this Certificate shall be made unless that transfer is
made pursuant to an effective registration statement under the 1933 Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification. In the event that a transfer is to be made without registration
or qualification, the Certificate Registrar shall require, in order to assure
compliance with such laws, either (i) that the Certificateholder desiring to
effect the transfer and such Certificateholder's prospective transferee each
execute a representation letter in the form described by the Agreement
certifying to the Certificate Registrar the facts surrounding the transfer, or
(ii) unless such transfer is made in reliance upon Rule 144A under the 1933 Act,
that the Depositor and the Certificate Registrar receive an Opinion of Counsel
satisfactory to them that such transfer may be made without such registration or
qualification, which Opinion of Counsel shall not be an expense of the
Depositor, the Trustee or the Certificate Registrar, in their respective
capacities as such. None of the Depositor, the Certificate Registrar or the
Trustee is obligated to register or qualify the Class of Certificates specified
on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any such Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Depositor, the Certificate Registrar and any Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of a Certificate or any interest therein may be made to
employee benefit plans and certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA, Section 4975 of the Code or any materially similar
provisions of applicable federal, state or local law (collectively, "Plans") or
any person who is directly or indirectly purchasing the Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the
C-1-4
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund, and (ii) the purchase by the
party designated in the Agreement at a price determined as provided in the
Agreement from the Trust Fund of all Mortgage Loans and all property acquired in
respect of such Mortgage Loans. The Agreement permits, but does not require, the
party designated in the Agreement to purchase from the Trust Fund all 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 right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Principal Balance of the Mortgage Loans at the time of purchase
being 10% or less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assume no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class CE Certificates referred to in the
within-mentioned Agreement.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
C-1-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ----------------
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
C-1-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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-1-8
EXHIBIT C-2
[FORM OF CLASS P CERTIFICATE]
THIS CLASS P CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY
MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
WILL BE REGISTERED.
C-2-1
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS P
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class P Servicer: HomEq Servicing Corporation
Date of Pooling and Servicing Agreement and Trustee: JPMorgan Chase Bank
Cut-off Date: November 1, 2003
First Distribution Date: December 26, 2003 Closing Date: November 25, 2003
No. 1
Percentage Interest: 100%
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that ▇▇▇▇ & Co. is the registered owner of a Percentage
Interest set forth above in that certain beneficial ownership interest evidenced
by all the Class P Certificates in the Trust Fund created pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs (the "Record
Date"), from Prepayment Charges, Originator Prepayment Charge Payment Amounts
and Servicer Prepayment Charge Payment Amounts in the Distribution Account in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class P
Certificates on such Distribution Date pursuant to the Agreement.
C-2-2
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Certificate Registrar
in writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Class P
Certificates, or by check mailed by first class mail to the address of the
Person entitled thereto, as such name and address shall appear on the
Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest specified on the face hereof.
The Class P Certificates are limited in right of payment to Prepayment
Charges received on the Mortgage Loans, Originator Prepayment Charge Payment
Amounts and Servicer Prepayment Charge Payment Amounts, all as more specifically
set forth herein and in the Agreement. As provided in the Agreement, withdrawals
from the Collection Account and the Distribution Account may be made from time
to time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of advances made, or certain expenses incurred,
with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified in the Agreement. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited 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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As
C-2-3
provided in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless that transfer is
made pursuant to an effective registration statement under the 1933 Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification. In the event that a transfer is to be made without registration
or qualification, the Certificate Registrar shall require, in order to assure
compliance with such laws, either (i) that the Certificateholder desiring to
effect the transfer and such Certificateholder's prospective transferee each
execute a representation letter in the form described by the Agreement
certifying to the Certificate Registrar the facts surrounding the transfer, or
(ii) unless such transfer is made in reliance upon Rule 144A under the 1933 Act,
that the Depositor and the Certificate Registrar receive an Opinion of Counsel
satisfactory to them that such transfer may be made without such registration or
qualification, which Opinion of Counsel shall not be an expense of the
Depositor, the Trustee or the Certificate Registrar, in their respective
capacities as such. None of the Depositor, the Certificate Registrar or the
Trustee is obligated to register or qualify the Class of Certificates specified
on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any such Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Depositor, the Certificate Registrar and any Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of a Certificate or any interest therein may be made to
employee benefit plans and certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA, Section 4975 of the Code or any materially similar
provisions of applicable federal, state or local law (collectively, "Plans") or
any person who is directly or indirectly purchasing the Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the
C-2-4
Trustee and required to be paid to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund, and (ii)
the purchase by the party designated in the Agreement at a price determined as
provided in the Agreement from the Trust Fund of all Mortgage Loans and all
property acquired in respect of such Mortgage Loans. The Agreement permits, but
does not require, the party designated in the Agreement to purchase from the
Trust Fund all 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 right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Principal Balance of the Mortgage
Loans at the time of purchase being 10% or less of the Cut-off Date Aggregate
Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
C-2-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ------------------
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
C-2-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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-2-8
EXHIBIT C-3
[FORM OF CLASS R CERTIFICATE]
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN TWO SEPARATE "REAL ESTATE MORTGAGE INVESTMENT
CONDUITS," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS R CERTIFICATE IS SUBORDINATE TO THE OFFERED CERTIFICATES OF THIS
SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CLASS R CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS
OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION THAT DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, SECTION 4975 OF THE CODE OR ANY
MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
WILL BE REGISTERED.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE MAY
BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (1) AN AFFIDAVIT TO THE
CERTIFICATE REGISTRAR THAT SUCH TRANSFEREE IS NOT (A) THE UNITED STATES,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN
SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
C-3-1
IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE
TAX IMPOSED BY SECTION 511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED IN
SECTION 1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (3) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OR
ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THE CLASS R CERTIFICATE
BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(D) OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A
DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF THIS CLASS R CERTIFICATE.
C-3-2
ABFC ASSET-BACKED CERTIFICATES
SERIES 2003-WMC1, CLASS R
evidencing a beneficial ownership interest in a Trust Fund consisting primarily
of a pool of conventional fixed-rate and adjustable-rate one- to four-family
first and second lien mortgage loans formed and sold by
ASSET BACKED FUNDING CORPORATION
Series 2003-WMC1, Class R Servicer: HomEq Servicing Corporation
Date of Pooling and Servicing Agreement and Trustee: JPMorgan Chase Bank
Cut-off Date: November 1, 2003
First Distribution Date: December 26, 2003 Closing Date: November 25, 2003
No. 1
Percentage Interest: 100%
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ASSET
BACKED FUNDING CORPORATION, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS CERTIFICATE IS NOT GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that ▇▇▇▇ & Co. is the registered owner of 100%
Percentage Interest in that certain beneficial ownership interest evidenced by
the Class R Certificate in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Asset
Backed Funding Corporation (hereinafter called the "Depositor," which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned 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, distributions 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 (a "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the last Business Day of the month immediately
preceding the month in which the related Distribution Date occurs (the "Record
Date"), from funds in the Distribution Account in the amount required to be
distributed to the Holder of Class R Certificate on such Distribution Date
pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified
C-3-3
the Certificate Registrar in writing at least five Business Days prior to the
Record Date immediately prior to such Distribution Date and is the registered
owner of Class R Certificate, or by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register, provided that the Certificate Registrar may deduct a
reasonable wire transfer fee from any payment made by wire transfer.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as ABFC Asset-Backed Certificates of the Series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest specified on the face hereof.
The Class R Certificate is 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. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Servicer, the Trustee and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates entitled to the Voting Rights
identified in the Agreement. 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 herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited 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 offices or agencies appointed by the Trustee as provided in the
Agreement, 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 the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
C-3-4
No transfer of this Certificate shall be made unless that transfer is
made pursuant to an effective registration statement under the 1933 Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification. In the event that a transfer is to be made without registration
or qualification, the Certificate Registrar shall require, in order to assure
compliance with such laws, either (i) that the Certificateholder desiring to
effect the transfer and such Certificateholder's prospective transferee each
execute a representation letter in the form described by the Agreement
certifying to the Certificate Registrar the facts surrounding the transfer, or
(ii) unless such transfer is made in reliance upon Rule 144A under the 1933 Act,
that the Depositor and the Certificate Registrar receive an Opinion of Counsel
satisfactory to them that such transfer may be made without such registration or
qualification, which Opinion of Counsel shall not be an expense of the
Depositor, the Trustee or the Certificate Registrar, in their respective
capacities as such. None of the Depositor, the Certificate Registrar or the
Trustee is obligated to register or qualify the Class of Certificates specified
on the face hereof under the 1933 Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any such Certificateholder
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Depositor, the Certificate Registrar and any Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate or any interest therein may be made to
employee benefit plans and certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested that are subject to the fiduciary responsibility
provisions of ERISA, Section 4975 of the Code or any materially similar
provisions of applicable federal, state or local law (collectively, "Plans") or
any person who is directly or indirectly purchasing the Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed for all purposes to have consented to the provisions of Section 5.02 of
the Agreement and to any amendment of the Agreement deemed necessary by counsel
of the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
to cease to qualify as two separate REMICs or cause the imposition of a tax upon
the Trust.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Servicer, the Trustee and the Certificate Registrar
and any agent of the Depositor, the 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 none of the Depositor, the Servicer, the
Trustee, the Certificate Registrar nor any such agent shall be affected by
notice to the contrary.
C-3-5
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment to the Certificateholders of all amounts
held by or on behalf of the Trustee and required to be paid to them pursuant to
the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund, and (ii) the purchase by the party designated in
the Agreement at a price determined as provided in the Agreement from the Trust
Fund of all Mortgage Loans and all property acquired in respect of such Mortgage
Loans. The Agreement permits, but does not require, the party designated in the
Agreement to purchase from the Trust Fund all 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 right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate
Principal Balance of the Mortgage Loans at the time of purchase being 10% or
less of the Cut-off Date Aggregate Principal Balance.
The recitals contained herein shall be taken as statements of the
Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
C-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is the Class R Certificate referred to in the within-mentioned
Agreement.
Dated: November 25, 2003
JPMORGAN CHASE BANK, as Certificate
Registrar
By:
-----------------------------------
Authorized Signatory
C-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as ------------------
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) _____________________________________________
a Percentage Interest equal to ____% evidenced by the within asset-backed
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
C-3-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, 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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
GROUP 1 MORTGAGE LOAN SCHEDULE
[ON FILE WITH TRUSTEE]
D-1-1
EXHIBIT D-2
GROUP 2 MORTGAGE LOAN SCHEDULE
[ON FILE WITH TRUSTEE]
D-2-1
EXHIBIT E
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: JPMorgan Chase Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Institutional Trust Services
Re: Pooling and Servicing Agreement, dated as of November 1, 2003,
among Asset Backed Funding Corporation, as depositor, HomEq
Servicing Corporation, as servicer and JPMorgan Chase Bank, as
trustee.
All capitalized terms used herein shall have the meaning ascribed to
them in the Pooling and Servicing Agreement (the "Agreement") referenced above.
In connection with the administration of the Mortgage Loans held by you
as the Trustee pursuant to the Agreement, we request the release, and
acknowledge receipt, of the Mortgage File for the Mortgage Loan described below,
for the reason indicated.
Mortgagor's Name Address & Zip Code:
-----------------------------------
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
1. Mortgage Loan Paid in Full.
-------
2. Foreclosure
-------
3. Substitution
-------
4. Other Liquidation (Repurchases, etc.)
-------
5. Nonliquidation Reason:________________
-------
E-1
HOMEQ SERVICING CORPORATION,
as Servicer
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Date:
-------------------------------------
Acknowledgment of Documents returned to the Trustee:
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Date:
-------------------------------------
E-2
EXHIBIT F-1
FORM OF INITIAL CERTIFICATION
__________, 20__
Asset Backed Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HomEq Servicing Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABFC Asset-Backed Certificates, Series 2003-WMC1
Ladies and Gentlemen:
The undersigned, as Trustee, hereby certifies that, as except as noted
on the schedule of exceptions attached hereto as Schedule A, as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan listed on the attachment hereto) it has reviewed the
Mortgage Files and has determined that (a) all documents required to be
delivered to it pursuant to Section 2.01(i), (ii), (iii), (iv) and (v) of the
Pooling and Servicing Agreement, dated as of November 1, 2003, among Asset
Backed Funding Corporation, as depositor, HomEq Servicing Corporation, as
servicer and the undersigned, as trustee (the "Agreement") are in its
possession, and if indicated as applicable in a separate writing delivered to
the Trustee, that all documents delivered to it pursuant to Section 2.01(vi) of
the Agreement are in its possession; (b) such documents have been reviewed by it
and appear regular on their face and related to such Mortgage Loan, (c) each
Mortgage Note has been endorsed as provided in Section 2.01(i) of the Agreement
and each Mortgage has been assigned in accordance with Section 2.01(iii) and
(iv) of the Agreement and (d) based on its examination of the documents in the
Mortgage File and only as to such documents, the Mortgage Loan information
attached hereto as Schedule B set forth for each Mortgage Loan on the related
Mortgage Loan Schedule with respect to such Mortgage Loan accurately reflects
information set forth in the related Mortgage File. The Trustee makes no
representations as to (x) the validity, legality, enforceability, sufficiency,
due authorization or genuineness of any of the documents contained in each
Mortgage File or of any of the Mortgage Loans or (y) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
This Final Certification is not divisible or negotiable.
The Trustee will accept and act on instructions with respect to the
Mortgage Loans subject hereto upon surrender of this Final Certification at its
office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
Institutional Trust Services.
F-1-1
Capitalized terms used herein shall have the meaning ascribed to them
in the Agreement.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
F-1-2
SCHEDULE A - TO INITIAL CERTIFICATION
EXCEPTIONS
F-1-3
SCHEDULE B - TO INITIAL CERTIFICATION
MORTGAGE LOAN INFORMATION
1. Loan Identification Number
2. Mortgagor's Name
3. State and Zip Code of Mortgaged Property
4. Initial Mortgage Interest Rate
5. Original Principal Balance
6. Scheduled Maturity Date
7. Initial Monthly Payment
8. Initial Payment Date
9. Gross Margin (for Adjustable Rate Mortgage Loans)
10. Initial Adjustment Date (for Adjustable Rate Mortgage Loans)
11. Maximum Mortgage Interest Rate (for Adjustable Rate Mortgage Loans)
12. Minimum Mortgage Interest Rate (for Adjustable Rate Mortgage Loans)
13. Periodic Interest Rate (for Adjustable Rate Mortgage Loans)
F-1-4
EXHIBIT F-2
FORM OF TRUSTEE'S FINAL CERTIFICATION
________, 200_
Asset Backed Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
HomEq Servicing Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABFC Asset-Backed Certificates, Series 2003-WMC1
Ladies and Gentlemen:
The undersigned, as Trustee, hereby certifies that, as except as noted
on the schedule of exceptions attached hereto as Schedule A, as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan listed on the attachment hereto) it has reviewed the
Mortgage Files and has determined that (a) all documents required to be
delivered to it pursuant to Section 2.01(i), (ii), (iii), (iv) and (v) of the
Pooling and Servicing Agreement, dated as of November 1, 2003, among Asset
Backed Funding Corporation, as depositor, HomEq Servicing Corporation, as
servicer and the undersigned, as trustee (the "Agreement") are in its
possession, and if indicated as applicable in a separate writing delivered to
the Trustee, that all documents delivered to it pursuant to Section 2.01(vi) of
the Agreement are in its possession; (b) such documents have been reviewed by it
and appear regular on their face and related to such Mortgage Loan, (c) each
Mortgage Note has been endorsed as provided in Section 2.01(i) of the Agreement
and each Mortgage has been assigned in accordance with Section 2.01(iii) and
(iv) of the Agreement and (d) based on its examination of the documents in the
Mortgage File and only as to such documents, the Mortgage Loan information
attached hereto as Schedule B set forth for each Mortgage Loan on the related
Mortgage Loan Schedule with respect to such Mortgage Loan accurately reflects
information set forth in the related Mortgage File. The Trustee makes no
representations as to (x) the validity, legality, enforceability, sufficiency,
due authorization or genuineness of any of the documents contained in each
Mortgage File or of any of the Mortgage Loans or (y) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
This Final Certification is not divisible or negotiable.
The Trustee will accept and act on instructions with respect to the
Mortgage Loans subject hereto upon surrender of this Final Certification at its
office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
Manager- ABFC 2003-WMC1.
F-2-1
Capitalized terms used herein shall have the meaning ascribed to them
in the Agreement.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
F-2-2
SCHEDULE A - TO FINAL CERTIFICATION
EXCEPTIONS
F-2-3
SCHEDULE B - TO FINAL CERTIFICATION
MORTGAGE LOAN INFORMATION
1. Loan Identification Number
2. Mortgagor's Name
3. State and Zip Code of Mortgaged Property
4. Initial Mortgage Interest Rate
5. Original Principal Balance
6. Scheduled Maturity Date
7. Initial Monthly Payment
8. Initial Payment Date
9. Gross Margin (for Adjustable Rate Mortgage Loans)
10. Initial Adjustment Date (for Adjustable Rate Mortgage Loans)
11. Maximum Mortgage Interest Rate (for Adjustable Rate Mortgage Loans)
12. Minimum Mortgage Interest Rate (for Adjustable Rate Mortgage Loans)
13. Periodic Interest Rate (for Adjustable Rate Mortgage Loans)
F-2-4
EXHIBIT F-3
FORM OF RECEIPT OF MORTGAGE NOTE
Asset Backed Funding Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABFC Asset-Backed Certificates, Series 2003-WMC1
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing
Agreement, dated as of November 1, 2003, among Asset Backed Funding Corporation,
as depositor, HomEq Servicing Corporation, as servicer, and JPMorgan Chase Bank,
as trustee, we hereby acknowledge the receipt of the original Mortgage Note, or,
with respect to any lost Mortgage Note, an original Lost Note Affidavit,
together with a copy of the related Mortgage Note (a copy of which is attached
hereto as Exhibit 1) with any exceptions thereto listed on Exhibit 2.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------------
Name:
Title:
F-2-1
EXHIBIT G
MORTGAGE LOAN PURCHASE AGREEMENT
[ON FILE WITH TRUSTEE]
G-1
EXHIBIT H
FORM OF AFFIDAVIT OF LOST NOTE
I, ________________ being duly sworn, do hereby state under oath that:
1. I, as _______________ [title] of Bank of America, N.A., (the "Seller"),
am authorized to make this Affidavit on behalf of the Seller.
2. The Seller is the current payee under the following described mortgage
note (the Note"):
Loan No: [[LoanNumber]]
Borrower(s): [[BorrowersNames]]
Original Amount: $[[LoanAmt]]
Rate of Interest: [[InterestRate]]%
Address of Mortgaged Property: [[Address]],[[City]],[[State]][[Zip]]
3. The Note was not located after a thorough and diligent search.
4. Attached hereto is a true and correct copy of the Note, endorsed in
blank by Lender.
5. The Seller hereby agrees to indemnify and hold harmless, its
successors, and assigns, against any loss, from the unavailability of the
original Note, provided that in no event shall the Seller be liable for special
or consequential damages with respect to the foregoing, including but not
limited to, any claim for lost profits.
EXECUTED THIS ___ day of ______, on
behalf of the Seller by:
-------------------------------------------
[Name]
On ____ day of _____________, before me appeared [_______] to me
personally known, who being, duly sworn did say that [he/she] is the [Vice
President] of [Asset Backed Funding Corporation], and that said Affidavit of
Lost Note was signed and sealed on behalf of such corporation and said [_______]
acknowledged this instrument to be the free act of deed of said corporation.
-----------------------------------------------
Notary Public in and for the State of [_______]
My Commission expires:
-------------------------
H-1
EXHIBIT I
FORM OF ERISA REPRESENTATION
Asset Backed Funding Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Debt Services
Re: ABFC Mortgage Loan Asset-Backed Certificates, Series 2003-WMC1
Ladies and Gentlemen:
The undersigned is a Principal of Bank of America, N.A. (the "Transferee"), a
national banking association organized and existing under the laws of the United
States, on behalf of which she makes this affidavit.
The Transferee hereby acknowledges that under the terms of the Pooling and
Servicing Agreement (the "Agreement") dated as of November 1, 2003, among Asset
Backed Funding Corporation, as depositor (the "Depositor"), HomEq Servicing
Corporation, as servicer, and JPMorgan Chase Bank, as trustee (the "Trustee"),
no transfer of the ERISA-Restricted Certificates shall be permitted to be made
to any person unless the Depositor and the Certificate Registrar (as defined in
the Agreement) have received a certificate from such transferee in the form
hereof.
The Transferee either (x) (i) is not an employee benefit plan subject to Section
406 or Section 407 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"), the Trustee of any such plan or a person acting on behalf
of any such plan nor a person using the assets of any such plan or (ii) (except
in the case of the Class P, Class CE or Class R Certificates) (1) is an
insurance company which is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60"), (2) 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 PTCE 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 PTCE 95-60) at the date of
acquisition and (3) all plans that have an interest in
I-1
such general account are plans to which PTCE 95-60 applies or (y) (except in the
case of a Class R Certificate) shall deliver to the Certificate Registrar and
the Depositor an opinion of counsel (a "Benefit Plan Opinion") satisfactory to
the Certificate Registrar, and upon which the Certificate Registrar and the
Depositor shall be entitled to rely, to the effect that the purchase or holding
of such Certificate by the Transferee will not result in the assets of the Trust
Fund being deemed to be plan assets, will not be subject to the prohibited
transaction provisions of ERISA or the Code, and will not subject the Trustee or
the Depositor to any obligation in addition to those undertaken by such entities
in the Pooling and Servicing Agreement, which opinion of counsel shall not be an
expense of the Trustee or the Depositor.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Agreement.
[SIGNATURE PAGE FOLLOWS]
I-2
IN WITNESS WHEREOF, the Transferee has executed this certificate.
BANK OF AMERICA, N.A.
By:
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Principal
I-3
EXHIBIT J
FORM OF INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Asset Backed Funding Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Debt Services
Ladies and Gentlemen:
In connection with our acquisition of the ABFC Asset-Backed
Certificates, Series 2003-WMC1 (the "Certificates"), we certify that (a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we are an "accredited investor,"
as defined in Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
we are acquiring the Certificates for investment for our own account and not
with a view to any distribution of such Certificates (but without prejudice to
our right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (e) we agree that the Certificates must be
held indefinitely by us and we acknowledge that we are able to bear the economic
risk of investment in the Certificates, (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement and (h)
we acknowledge that the Certificates will bear a legend setting forth the
applicable restrictions on transfer.
J-1
Very truly yours,
[NAME OF TRANSFEREE]
By:
-----------------------------------
Authorized Officer
J-2
FORM OF RULE 144A INVESTMENT LETTER
[DATE]
Asset Backed Funding Corporation
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Debt Services
Re: ABFC Asset-Backed Certificates, Series 2003-WMC1
Ladies and Gentlemen:
In connection with our acquisition of the ABFC Asset-Backed
Certificates, Series 2003-WMC1 (the "Certificates"), we certify that (a) we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (c)
we have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise disposed of the Certificates, any interest in the Certificates
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, (d) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, and who executes a certification in the form of this letter and a
certification in the form of either Annex 1 or Annex 2 attached hereto, or (ii)
pursuant to another exemption from registration under the Securities Act.
J-3
Very truly yours,
[NAME OF TRANSFEREE]
By:
------------------------------------
Authorized Officer
J-4
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
The undersigned (the "Buyer") hereby certifies as follows to the parties listed
in the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
i. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
ii. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A ("Rule
144A") under the Securities Act of 1933, as amended (the "1933 Act") because (i)
the Buyer owned and/or invested on a discretionary basis $ (1) in securities
(except for the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in accordance with
Rule 144A) and (ii) the Buyer satisfies the criteria in the category marked
below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
___ Bank. The Buyer (a) is a national bank or banking institution as
defined in Section 3(a)(2) of the 1933 Act organized under the laws of
any State, territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank
or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements
as of a date not more than 16 months preceding the date of this
certification in the case of a U.S. bank, and not more than 18 months
preceding the date of this certification in the case of a foreign bank
or equivalent institution, a copy of which financial statements are
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution referenced in Section 3(a)(5)(A) of the 1933
Act, which is supervised and examined by a State or Federal authority
having supervisory authority over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, as of a date not more than
--------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
J-5
16 months preceding the date of this certification in the case of a
U.S. bank, and not more than 18 months preceding the date of this
certification in the case of a foreign bank or equivalent institution,
a copy of which financial statements are attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Buyer is an insurance company, as defined in
Section 2(13) of the 1933 Act, whose primary and predominant business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958.
___ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act
of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection (a)(
1) of Rule 144A pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather than this Annex 1.)
iii. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Buyer, the Buyer did not include any of
the securities referred to in this paragraph.
J-6
iv. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
v. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
vi. Will the Buyer be purchasing the Certificates ______ _______
only for the Buyer's own account? YES NO
If the answer to the foregoing question is "NO," the Buyer agrees that,
in connection with any purchase of securities sold to the Buyer for the account
of a third party (including any separate account) in reliance on Rule 144A, the
Buyer will only purchase for the account of a third party that at the time is a
"qualified institutional buyer" within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party
unless the Buyer has obtained a current representation letter from such third
party or taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
vii. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
[SIGNATURE ON FOLLOWING PAGE]
J-7
------------------------------------
Print Name of Buyer
By:
--------------------------------
Name:
Title:
Date:
--------------------------------
J-8
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A ("Rule
144A") under the Securities Act of 1933, as amended (the "1933 Act") because
Buyer is part of a Family of Investment Companies (as defined below), is such an
officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act") and (ii) as marked below, the Buyer alone, or the
Buyer's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to in paragraph 4 below)
as of the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's Family of
Investment Companies, the cost of such securities was used, except (i) where the
Buyer or the Buyer's Family of Investment Companies reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market.
___ The Buyer owned $ in securities (other than the excluded
securities referred to in paragraph 4 below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the excluded
securities referred to in paragraph 4 below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more Registered Investment Companies, except for a unit investment trust
whose assets consist solely of shares of one or more Registered Investment
Companies (provided that each series of a "series company," as defined in Rule
18f-2 under the 1940 Act, shall be deemed to be a separate investment company)
that have the same investment adviser (or, in the case of unit investment
trusts, the same depositor) or investment advisers (or depositors) that are
affiliated (by virtue of being majority owned subsidiaries of the same parent or
because one investment adviser is a majority owned subsidiary of the other).
J-9
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) bank deposit notes and certificates of deposit,
(iii) loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, or owned by the Buyer's
Family of Investment Companies, the securities referred to in this paragraph
were excluded.
5. The Buyer is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the Buyer
will be in reliance on Rule I 44A.
____ ____ Will the Buyer be purchasing the Transferred Owner
Yes No Trust Certificates only for the Buyer's own account?
6. If the answer to the foregoing question is "NO," the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer for the
account of a third party (including any separate account) in reliance on Rule
144A, the Buyer will only purchase for the account of a third party that at the
time is a "qualified institutional buyer" within the meaning of Rule 144A. In
addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Buyer's purchase of the Transferred Owner Trust Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
---------------------------------
Print Name of Buyer or Adviser
By:
-----------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------
Print Name of Buyer
---------------------------------
Date:
----------------------------
J-10
EXHIBIT K
FORM OF CLASS R CERTIFICATE TRANSFER AFFIDAVIT
ABFC ASSET-BACKED CERTIFICATES,
SERIES 2003-WMC1
STATE OF NORTH CAROLINA)
) ss.:
COUNTY OF MECKLENBURG )
The undersigned, being first duly sworn, deposes and says as follows:
The undersigned is an officer of Bank of America, N.A., the proposed
Transferee of an Ownership Interest in a Class R Certificate (the "Certificate")
issued pursuant to the Pooling and Servicing Agreement, dated November 1, 2003
(the "Agreement"), relating to the above-referenced Certificates, among Asset
Backed Funding Corporation, as depositor, HomEq Servicing Corporation, as
servicer, and JPMorgan Chase Bank, as trustee. Capitalized terms used, but not
defined herein shall have the respective meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this affidavit
on behalf of the Transferee.
The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) for
a nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman) for
a Person that is not a Permitted Transferee, on the agent; and (iii) the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
subsequent Transferee furnished to such Person an affidavit that such subsequent
Transferee is a Permitted Transferee and, at the time of Transfer, such Person
does not have actual knowledge that the affidavit is false.
The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with
K-1
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
The Transferee has reviewed the provision of Section 5.02(d) of the
Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of the Section 5.02(d) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trust or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth in this Exhibit L to the Agreement (a "Transferor Certificate")
to the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
The taxpayer identification number of the Transferee's nominee is
▇▇-▇▇▇▇▇▇▇.
The Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
The Transferee is not an employee benefit plan that is subject to ERISA
or a plan that is subject to Section 4975 of the Code, nor are we acting on
behalf of such a plan.
The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
The Transferee has filed all required federal and state income tax
returns and has paid all federal and state income tax due and intends to file
and pay all such returns and taxes in the future.
The Transferee historically has paid its debts as they come due and
fully intends to be financially able to pay its debts, including any and all tax
liabilities, as they become due.
K-2
The Transferee understands that, as the holder of an Ownership Interest
in a Certificate, it may incur tax liabilities in excess of any cash flows
generated by such Ownership Interest and intends to pay all taxes associated
with holding such Ownership Interest as such taxes become due.
The Transferee agrees that it will not cause income from the
Certificate to be attributable to a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of the Transferee
or of another U.S. taxpayer.
That, if the Transferee is purchasing the Class R Certificate in a
transfer intended to meet the safe harbor provisions of Treasury Regulations
Sections 1.860E-1(c), the Transferee has executed and attached Attachment A
hereto.
[SIGNATURE ON FOLLOWING PAGE]
K-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this 25th day of November, 2003.
BANK OF AMERICA, N.A.
By:
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Principal
Personally appeared before me ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, known or proved to me
to be the same person who executed the foregoing instrument and to be a
Principal of the Transferee, and acknowledged that he executed the same as his
free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this 25th day of November, 2003.
------------------------------------
NOTARY PUBLIC
My Commission expires the _____ day of __________, 200_.
K-4
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
[ ] The consideration paid to the Transferee to acquire the Class R Certificate
equals or exceeds the excess of (a) the present value of the anticipated tax
liabilities over (b) the present value of the anticipated savings associated
with holding such Certificate, in each case calculated in accordance with U.S.
Treasury Regulations Sections 1.860E-1(c)(7) and (8), computing present values
using a discount rate equal to the short-term Federal rate prescribed by Section
1274(d) of the Code and the compounding period used by the Transferee.
OR
[ ] The transfer of the Class R Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from
Class R Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee had
gross assets for financial reporting purposes (excluding any obligation of
a person related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net
assets in excess of $10 million;
(iii) the Transferee will transfer the Class R Certificate only to
another "eligible corporation," as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of
the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Class R Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates, prepayment
and loss assumptions, expense and reinvestment assumptions, tax rates and
other factors specific to the Transferee) that it has determined in good
faith; and
(v) in the event of any transfer of the Class R Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of the
transferee's purchase of the Class R Certificate.
.
K-5
EXHIBIT L
FORM OF TRANSFEROR CERTIFICATE
[DATE]
JPMorgan Chase Bank
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Global Debt Services
Asset Backed Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABFC Asset-Backed Certificates, Series 2003-WMC1
Ladies and Gentlemen:
In connection with our disposition of the ABFC Asset-Backed
Certificates, Series 2003-WMC1 (the "Certificates"), we certify that (a) we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the "Act"), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, (b) we
have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act, (c) to
the extent we are disposing of the Class R Certificate, we have no knowledge the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of the Class R Certificate is to impede the assessment or collection
of tax.
Very truly yours,
[_________________________]
By:
----------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
L-1
EXHIBIT M
MONTHLY INFORMATION DELIVERED BY SERVICER
1. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the number and Principal Balances of all
Mortgage Loans which were the subject of Principal Prepayments during
the related Prepayment Period.
2. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the amount of all curtailments which were
received during the related Prepayment Period.
3. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the aggregate amount of the principal portion
of all Monthly Payments received during the related Collection Period.
4. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the amount of interest received on the Mortgage
Loans during the related Collection Period.
5. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the aggregate amount of the Advances made and
recovered with respect to such Distribution Date.
6. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the aggregate amount of the Servicing Advances
made and recovered with respect to such Distribution Date.
7. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the delinquency and foreclosure information and
the amount of Mortgage Loan Losses during the related Collection
Period.
8. The information contained in the Liquidation Report for the related
Collection Period.
9. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the weighted average maturity, the weighted
average Mortgage Interest Rate and the weighted average Net Mortgage
Interest Rate as of the last day of the Collection Period preceding of
the related Interest Accrual Period.
10. The Servicing Fees paid and Servicing Fees accrued during the related
Collection Period.
11. The amount of all payments or reimbursements to the Servicer paid or to
be paid since the prior Distribution Date (or in the case of the first
Distribution Date, since the Closing Date).
12. The Pool Balance, the aggregate Principal Balance of the Group 1
Mortgage Loan and the aggregate Principal Balance of the Group 2
Mortgage Loans.
M-1
13. With respect to the Mortgage Pool, the Group 1 Mortgage Loans and the
Group 2 Mortgage Loans, the number of Mortgage Loans outstanding at the
beginning and at the end of the related Collection Period.
14. The aggregate interest accrued on the Mortgage Loans, the Group 1
Mortgage Loans and the Group 2 Mortgage Loans, at their respective
Mortgage Interest Rates for the related Collection Period.
15. The amount deposited in the Collection Account which may not be
withdrawn therefrom pursuant to an Order of a United States Bankruptcy
Court of competent jurisdiction imposing a stay pursuant to Section 362
of U.S. Bankruptcy Code.
16. The aggregate Realized Losses in the Mortgage Pool, in the Group 1
Mortgage Loans and in the Group 2 Mortgage Loans since the Cut-off Date
as of the end of the related Collection Period.
17. The amount of Prepayment Charges received, the amount of Originator
Prepayment Charge Payment Amounts paid, the amount of Servicer
Prepayment Charge Payment Amounts paid, and the reason for any
Prepayment Charges waived without a corresponding Servicer Prepayment
Charge Payment Amount, all for the related Collection Period.
M-2
EXHIBIT N
FORM OF YIELD MAINTENANCE AGREEMENT
[ON FILE WITH TRUSTEE]
N-1
EXHIBIT O
FORM OF CERTIFICATION
ABFC 2003-WMC1 TRUST,
ASSET-BACKED CERTIFICATES, SERIES 2003-WMC1
I, [identify the certifying individual] certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form
8-K's containing Distribution Date Statements filed in respect of
periods included in the year covered by this annual report, of the ABFC
2003-WMC1 Trust;
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by this annual
report;
3. Based on my knowledge, the distribution or servicing information
required to be provided to the Trustee by the Servicer under the
Pooling and Servicing Agreement, dated as of November 1, 2003 (the
"Agreement"), among Asset Backed Funding Corporation, as depositor,
HomEq Servicing Corporation, as servicer (the "Servicer"), and JPMorgan
Chase Bank, as trustee (the "Trustee") for inclusion in these reports
is included in these reports;
4. Based on my knowledge and upon the annual compliance statement included
in the annual report on Form 10-K and required to be delivered to the
Trustee in accordance with the terms of the Agreement, and except as
disclosed in the reports, the Servicer has fulfilled its obligations
under the Agreement;
5. The reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon
the report provided by an independent public accountant, after
conducting a review in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure, as set forth in the
Agreement, that is included in these reports; and
6. In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: HomEq
Servicing Corporation and JPMorgan Chase Bank.
By:
-----------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATION TO BE PROVIDED
BY THE TRUSTEE TO THE DEPOSITOR
ABFC 2003-WMC1 TRUST,
ASSET-BACKED CERTIFICATES, SERIES 2003-WMC1
The Trustee hereby certifies to Asset Backed Funding Corporation
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. The trustee has reviewed the annual report on Form 10-K for the
fiscal year [___], and all reports on Form 8-K containing distribution reports
filed in respect of periods included in the year covered by that annual report,
relating to the above-referenced Trust;
2. Subject to paragraph (4), the distribution information in the
distribution reports contained in all monthly Form 8-K's included in the year
covered by the annual report on Form 10-K for the calendar year [____], taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact required by the Pooling and Servicing Agreement to be
included therein and necessary to make the statements made, in light of the
circumstances under which statements were made, not misleading as of the last
day of the period covered by that annual report;
3. The distribution information required to be provided by the Trustee
under the Pooling and Servicing Agreement is included in these reports; and
4. In compiling the distribution information and making the foregoing
certifications, I have relied upon information furnished to me by the Servicer
under the Pooling and Servicing Agreement. The Trustee shall have no
responsibility or liability for any inaccuracy in such reports resulting from
information so provided by the Servicer.
JPMORGAN CHASE BANK, as Trustee
By:
------------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SERVICER TO THE DEPOSITOR
ABFC 2003-WMC1 TRUST,
ASSET-BACKED CERTIFICATES, SERIES 2003-WMC1
I, [identify the certifying individual], certify to Asset Backed
Funding Corporation and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the information related to the Mortgage Loans and the
servicing thereof submitted by the Servicer to the Trustee (the
"Servicing Information"), which is used in connection with the
preparation of the annual report on Form 10-K for the calendar year
[___], and all monthly reports on Form 8-K containing Distribution Date
Statements filed in respect of periods included in the year covered by
that annual report of the Trust;
2. Based on my knowledge, the Servicing Information for the calendar year
covered by the annual report on Form 10-K, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as
of the last day of the period covered by that annual report;
3. Based on my knowledge, the Servicing Information required to be
provided to the Trustee by the Servicer under the Pooling and Servicing
Agreement for inclusion in these reports has been provided by the
Servicer to the Trustee;
4. I am responsible for reviewing the activities performed by the Servicer
under the Pooling and Servicing Agreement and based upon my knowledge
and the annual compliance review required under the Pooling and
Servicing Agreement, and except as disclosed in the reports, the
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement; and
5. The reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon
the report provided by an independent public accountant, after
conducting a review in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure, as set forth in the
Pooling and Servicing Agreement, that is included in these reports.
P-2-1
HOMEQ SERVICING CORPORATION
By:
-----------------------------
Name:
Title:
P-2-2