MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
Depositor
CHASE MANHATTAN MORTGAGE CORPORATION
Servicer
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2003
MASTR Asset Backed Securities Trust 2003-WMC1
Mortgage Pass-Through Certificates
Series 2003-WMC1
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms................................................-1-
SECTION 1.02. Allocation of Certain Interest Shortfalls...................-49-
SECTION 1.03 Rights of the NIMS Insurer..................................-50-
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of the Mortgage Loans............................-51-
SECTION 2.02. Acceptance of REMIC I by Trustee............................-53-
SECTION 2.03. Repurchase or Substitution of Mortgage Loans by the
Originator or the Seller....................................-55-
SECTION 2.04. Reserved....................................................-57-
SECTION 2.05. Representations, Warranties and Covenants of the Servicer...-57-
SECTION 2.06. Issuance of the REMIC I Regular Interests and the Class
R-I Interest................................................-59-
SECTION 2.07. Conveyance of the REMIC I Regular Interests; Acceptance
of REMIC II by the Trustee..................................-60-
SECTION 2.08. Issuance of Class R Certificates............................-60-
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer.................................-61-
SECTION 3.02. Sub-Servicing Agreements Between Servicer and
Sub-Servicers......................................-62-
SECTION 3.03. Successor Sub-Servicers.....................................-63-
SECTION 3.04. Liability of the Servicer...................................-64-
SECTION 3.05. No Contractual Relationship Between Sub-Servicers and the
NIMS Insurer, the Trustee or Certificateholders.............-64-
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements by
Trustee.....................................................-64-
SECTION 3.07. Collection of Certain Mortgage Loan Payments................-65-
SECTION 3.08. Sub-Servicing Accounts......................................-65-
SECTION 3.09. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts....................................................-66-
SECTION 3.10. Collection Account and Distribution Account.................-67-
SECTION 3.11. Withdrawals from the Collection Account and Distribution
Account.....................................................-69-
SECTION 3.12. Investment of Funds in the Collection Account and the
Distribution
-i-
Account.....................................................-71-
SECTION 3.13. [Reserved]..................................................-72-
SECTION 3.14. Maintenance of Hazard Insurance and Errors and Omissions
and Fidelity Coverage.......................................-72-
SECTION 3.15. Enforcement of Due-On-Sale Clauses; Assumption
Agreements..................................................-74-
SECTION 3.16. Realization Upon Defaulted Mortgage Loans...................-75-
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files.............-77-
SECTION 3.18. Servicing Compensation......................................-78-
SECTION 3.19. Reports to the Trustee; Collection Account Statements.......-79-
SECTION 3.20. Statement as to Compliance..................................-79-
SECTION 3.21. Independent Public Accountants' Servicing Report............-79-
SECTION 3.22. Access to Certain Documentation.............................-80-
SECTION 3.23. Title, Management and Disposition of REO Property...........-80-
SECTION 3.24. Obligations of the Servicer in Respect of Prepayment
Interest Shortfalls.........................................-83-
SECTION 3.25. [Reserved]..................................................-83-
SECTION 3.26. Obligations of the Servicer in Respect of Mortgage
Rates and Monthly Payments..................................-83-
SECTION 3.27. [Reserved]..................................................-84-
SECTION 3.28. [Reserved]..................................................-84-
SECTION 3.29. Advance Facility............................................-84-
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions...............................................-86-
SECTION 4.02. Statements to Certificateholders............................-97-
SECTION 4.03. Remittance Reports; Advances...............................-100-
SECTION 4.04. Allocation of Realized Losses..............................-102-
SECTION 4.05. Compliance with Withholding Requirements...................-104-
SECTION 4.07. Net WAC Rate Carryover Reserve Account
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificate............................................-107-
SECTION 5.02. Registration of Transfer and Exchange of Certificates......-109-
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates..........-113-
SECTION 5.04. Persons Deemed Owners......................................-114-
SECTION 5.05. Certain Available Information..............................-114-
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01. Liability of the Depositor and the Servicer................-115-
-ii-
SECTION 6.02. Merger or Consolidation of the Depositor or the Servicer...-115-
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer
and Others.................................................-116-
SECTION 6.04. Limitation on Resignation of the Servicer..................-117-
SECTION 6.05. Rights of the Depositor in Respect of the Servicer.........-117-
ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Default.................................-119-
SECTION 7.02. Trustee to Act; Appointment of Successor...................-121-
SECTION 7.03. Notification to Certificateholders.........................-122-
SECTION 7.04. Waiver of Servicer Events of Default.......................-123-
SECTION 7.05. Survivability of Servicer Liabilities......................-123-
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee..........................................-124-
SECTION 8.02. Certain Matters Affecting the Trustee......................-125-
SECTION 8.03. Trustee not Liable for Certificates or Mortgage Loans......-126-
SECTION 8.04. Trustee May Own Certificates...............................-126-
SECTION 8.05. Trustee's Fees and Expenses................................-126-
SECTION 8.06. Eligibility Requirements for Trustee.......................-127-
SECTION 8.07. Resignation and Removal of the Trustee.....................-127-
SECTION 8.08. Successor Trustee..........................................-128-
SECTION 8.09. Merger or Consolidation of Trustee.........................-129-
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..............-129-
SECTION 8.11. Appointment of Office or Agency; Appointment of
Custodian.........................................-130-
SECTION 8.12. Representations and Warranties.............................-130-
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans......................................................-132-
SECTION 9.02. Additional Termination Requirements........................-134-
ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration.......................................-136-
SECTION 10.02. Prohibited Transactions and Activities.....................-138-
SECTION 10.03. Servicer and Trustee Indemnification.......................-139-
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment..................................................-140-
SECTION 11.02. Recordation of Agreement; Counterparts.....................-141-
SECTION 11.03. Limitation on Rights of Certificateholders.................-141-
SECTION 11.04. Governing Law..............................................-142-
SECTION 11.05. Notices....................................................-142-
SECTION 11.06. Severability of Provisions.................................-143-
SECTION 11.07. Notice to Rating Agencies..................................-143-
SECTION 11.08. Article and Section References.............................-144-
SECTION 11.09. Grant of Security Interest.................................-144-
SECTION 11.10 Third Party Rights.........................................-145-
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EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class M-1 Certificate
Exhibit A-5 Form of Class M-2 Certificate
Exhibit A-6 Form of Class M-3 Certificate
Exhibit A-7 Form of Class M-4 Certificate
Exhibit A-8 Form of Class M-5 Certificate
Exhibit A-9 Form of Class MV-6 Certificate
Exhibit A-10 Form of Class MF-6 Certificate
Exhibit A-11 Form of Class CE Certificate
Exhibit A-12 Form of Class P Certificate
Exhibit A-13 Form of Class R Certificate
Exhibit B [Reserved]
Exhibit C-1 Form of Trustee's Initial Certification
Exhibit C-2 Form of Trustee's Final Certification
Exhibit C-3 Form of Trustee's Receipt of Mortgage Notes
Exhibit D Form of Mortgage Loan Purchase Agreement
Exhibit E Request for Release
Exhibit F-1 Form of Transferor Representation Letter and Form of Transferee
Representation Letter in Connection with Transfer of the Class CE
Certificates, Class P Certificates or Residual Certificates
Pursuant to Rule 144A Under the 1933 Act
Exhibit F-2 Form of Transfer Affidavit and Agreement and Form of Transferor
Affidavit in Connection with Transfer of Residual Certificates
Exhibit G Form of Certification with respect to ERISA and the Code
Exhibit H Form of Report Pursuant to Section 4.06
Exhibit I Form of Lost Note Affidavit
Exhibit J-1 Form of Certification to Be Provided by the Trustee with Form 10-K
Exhibit J-2 Form of Backup Certification to Be Provided by the Servicer with
respect to the Form 10-K
Exhibit K Form of Custodial Agreement
Schedule 1 Mortgage Loan Schedule
Schedule 2 Prepayment Charge Schedule
-v-
This Pooling and Servicing Agreement, is dated and effective as of May
1, 2003, among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. as Depositor,
CHASE MANHATTAN MORTGAGE CORPORATION as Servicer and U.S. BANK NATIONAL
ASSOCIATION as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple classes, which in the aggregate will evidence the entire
beneficial ownership interest in each REMIC (as defined herein) created
hereunder. The Trust Fund will consist of a segregated pool of assets comprised
of the Mortgage Loans and certain other related assets subject to this
Agreement.
REMIC I
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans and certain other related assets
(other than the Servicer Prepayment Charge Payment Amount, the Net WAC Rate
Carryover Reserve Account and the Cap Contract) subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC I." The Class R-I Interest will be the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions (as defined
herein). The following table irrevocably sets forth the designation, the REMIC I
Remittance Rate, the initial Uncertificated 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 I Regular Interests (as defined herein).
None of the REMIC I Regular Interests will be certificated.
-vi-
REMIC I Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
----------- --------------- ---------------------- -----------------
I-LTAA Variable(2) $364,621,094.96 June 2033
I-LTA1 Variable(2) $ 1,410,945.00 June 2033
I-LTA2 Variable(2) $ 607,625.00 June 2033
I-LTA3 Variable(2) $ 995,135.00 June 2033
I-LTM1 Variable(2) $ 269,745.00 June 2033
I-LTM2 Variable(2) $ 195,335.00 June 2033
I-LTM3 Variable(2) $ 46,510.00 June 2033
I-LTM4 Variable(2) $ 42,785.00 June 2033
I-LTM5 Variable(2) $ 40,925.00 June 0000
X-XXXX0 Variable(2) $ 15,810.00 June 2033
I-LTMF6 Variable(2) $ 40,000.00 June 2033
I-LTZZ Variable(2) $ 3,776,431.84 June 0000
X-XXX Variable(2) $ 100.00 June 2033
I-1SUB Variable(2) $ 6,619.21 June 2033
I-1GRP Variable(2) $ 34,838.11 June 2033
I-2SUB Variable(2) $ 2,850.65 June 2033
I-2GRP Variable(2) $ 15,003.15 June 2033
I-3SUB Variable(2) $ 4,668.52 June 2033
I-3GRP Variable(2) $ 24,571.22 June 2033
I-XX Variable(2) $371,973,790.94 June 2033
________________
(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 I Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Remittance Rate"
herein.
-vii-
REMIC II
--------
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Interest will evidence the sole class
of "residual interests" in REMIC II for purposes of the REMIC Provisions under
federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate, the initial aggregate Certificate Principal
Balance and, solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the indicated
Classes of Certificates.
Initial Aggregate
Certificate Principal Latest Possible
Designation Pass-Through Rate Balance Maturity Date(1)
------------- ----------------- --------------------- -----------------
Class A-1 Variable(2) $282,189,000.00 June 2033
Class A-2 Variable(2) $121,525,000.00 June 2033
Class A-3 Variable(2) $199,027,000.00 June 2033
Class M-1 Variable(2) $ 53,949,000.00 June 2033
Class M-2 Variable(2) $ 39,067,000.00 June 2033
Class M-3 Variable(2) $ 9,302,000.00 June 2033
Class M-4 Variable(2) $ 8,557,000.00 June 2033
Class M-5 Variable(2) $ 8,185,000.00 June 2033
Class MV-6 Variable(2) $ 3,162,000.00 June 2033
Class MF-6 6.500% per annum $ 8,000,000.00 June 2033
Class CE Variable(2) $ 11,161,683.59 June 2033
Class P N/A(5) $ 100.00 June 2033
_______________
(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 Loans with the latest maturity date has been designated as
the "latest possible maturity date" for each Class of Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
(3) The Class CE Certificates will accrue interest at their variable
Pass-Through Rate on the Notional Amount of the Class CE Certificates
outstanding from time to time which shall equal the Uncertificated Balance
of the REMIC I Regular Interests. The Class CE Certificates will not accrue
interest on their Certificate Principal Balance.
(5) The Class P Certificates will not accrue interest.
As of the Cut-off Date, the Original Mortgage Loans had an aggregate
Principal Balance equal to $744,124,784.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer and the Trustee agree as follows:
-viii-
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including, without limitation, in the
Preliminary Statement hereto, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article.
Unless otherwise specified, all calculations described herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
"Accrual Period": With respect to the Class A Certificates and the
Mezzanine Certificates (other than the Class MF-6 Certificates) and each
Distribution Date, the period commencing on the preceding Distribution Date (or
in the case of the first such Accrual Period, commencing on the Closing Date)
and ending on the day preceding the current Distribution Date. With respect to
the Class MF-6 Certificates, the Class CE Certificates and the REMIC I Regular
Interests and each Distribution Date, the calendar month prior to the month of
such Distribution Date.
"Adjustable-Rate Mortgage Loan": Each of the Mortgage Loans identified
in the Mortgage Loan Schedule as having a Mortgage Rate that is subject to
adjustment.
"Adjusted Net Maximum Mortgage Rate": With respect to any Mortgage
Loan (or the related REO Property), as of any date of determination, a per annum
rate of interest equal to the applicable Maximum Mortgage Rate for such Mortgage
Loan (or the Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of
the first day of the month preceding the month in which the related Distribution
Date occurs minus the sum of (i) the Trustee Fee Rate and (ii) the Servicing Fee
Rate.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan (or
the related REO Property), as of any date of determination, a per annum rate of
interest equal to the applicable Mortgage Rate for such Mortgage Loan as of the
first day of the month preceding the month in which the related Distribution
Date occurs minus the sum of (i) the Trustee Fee Rate and (ii) the Servicing Fee
Rate.
"Adjustment Date": With respect to each Adjustable-Rate Mortgage Loan,
the first day of the month in which the Mortgage Rate of such 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 Schedule.
"Advance": As to any Mortgage Loan or REO Property, any advance made
by the Servicer in respect of any Distribution Date pursuant to Section 4.03.
"Advance Facility": As defined in Section 3.29 hereof.
"Advancing Person": As defined in Section 3.29 hereof.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Loss Severity 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 on any Mortgage Loans from the
Cut-off Date to the last day of the preceding calendar month and the denominator
of which is the aggregate principal balance of such Mortgage Loans immediately
prior to the liquidation of such Mortgage Loans.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Realized Loss Amount": With respect to any Distribution
Date and any Class of Mezzanine Certificates, the sum of (i) any Realized Losses
allocated to such Class of Certificates on such Distribution Date and (ii) the
amount of any Allocated Realized Loss Amount for such Class of Certificates
remaining unpaid from the previous Distribution Date.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form (excepting therefrom, if applicable,
the mortgage recordation information which has not been required pursuant to
Section 2.01 hereof or returned by the applicable recorder's office), 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, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law.
"Available Funds": With respect to any Distribution Date, an amount
equal to the excess of (i) the sum of (a) the aggregate of the related Monthly
Payments received on the Mortgage Loans on or prior to the related Determination
Date, (b) Net Liquidation Proceeds, Insurance Proceeds, Principal Prepayments,
proceeds from repurchases of and substitutions for such Mortgage Loans and other
unscheduled recoveries of principal and interest in respect of the Mortgage
Loans received during the related Prepayment Period, (c) the aggregate of any
amounts received in respect of a related REO Property withdrawn from any REO
Account and deposited in the Collection Account for such Distribution Date, (d)
the aggregate of any amounts deposited in the Collection Account by the Servicer
in respect of related Prepayment Interest Shortfalls for such Distribution Date,
(e) the aggregate of any Advances made by the Servicer for such Distribution
Date in respect of the Mortgage Loans and (f) the aggregate of any related
advances made by the Trustee in respect of the Mortgage Loans for such
Distribution Date pursuant to Section 7.02 over (ii) the sum of (a) amounts
reimbursable or payable to the Servicer pursuant to Section 3.11(a), (b)
Extraordinary Trust Fund Expenses reimbursable to the Trustee pursuant to
Section 3.11(b), (c) amounts deposited in the Collection Account or the
Distribution Account pursuant to clauses (a) through (g) above, as the case may
be, in error, (d) the amount of any Prepayment Charges collected by the Servicer
in connection with the full or partial prepayment of any of the Mortgage Loans
and any Servicer
-2-
Prepayment Charge Payment Amount and (e) the Trustee Fee and any indemnification
amounts owed to the Trustee payable from the Distribution Account pursuant to
Section 8.05.
"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.
"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": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Book-Entry Certificate": The Class A Certificates and the Mezzanine
Certificates for so long as the Certificates of such Class shall be registered
in the name of the Depository or its nominee.
"Book-Entry Custodian": The custodian appointed pursuant to Section
5.01.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking or savings and loan institutions in the State of California, the
State of New York, the Commonwealth of Pennsylvania, or in the cities in which
the Corporate Trust Office of the Trustee is located, are authorized or
obligated by law or executive order to be closed.
"Cap Contract": The Cap Contract between the Trustee on behalf of the
Trust Fund and the counterparty thereunder, for the benefit of the Holders of
the Class A-2 Certificates.
"Certificate": Any one of the Mortgage Pass-Through Certificates,
Series 2003- WMC1, Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class MV-6, Class MF-6, Class CE, Class P or Class R,
issued under this Agreement.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any Distribution Date, a fraction, expressed as a decimal
carried to six places, the numerator of which is the aggregate Certificate
Principal Balance (or the Notional Amount, in the case of the Class CE
Certificates) of such Class of Certificates on such Distribution Date (after
giving effect to any distributions of principal and allocations of Realized
Losses in reduction of the Certificate Principal Balance (or the Notional
Amount, in the case of the Class CE Certificates) of such Class of Certificates
to be made on such Distribution Date), and the denominator of which is the
initial aggregate Certificate Principal Balance (or the Notional Amount, in the
case of the Class CE Certificates) of such Class of Certificates as of the
Closing Date.
"Certificate Margin": With respect to the Class A-1 Certificates and
REMIC I Regular Interest I-LTA1, 0.330% in the case of each Distribution Date
through and including the Distribution Date on which the aggregate Principal
Balance of the Mortgage Loans (and properties acquired in respect thereof)
remaining in the Trust Fund is reduced to less than 10% of the aggregate Cut-off
-3-
Date Principal Balance of the Mortgage Loans and 0.660% in the case of each
Distribution Date thereafter.
With respect to the Class A-2 Certificates and REMIC I Regular
Interest I-LTA2, 0.310% in the case of each Distribution Date through and
including the Distribution Date on which the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in respect thereof) remaining in the
Trust Fund is reduced to less than 10% of the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.620% in the case of each Distribution Date
thereafter.
With respect to the Class A-3 Certificates and REMIC I Regular
Interest I-LTA3, 0.370% in the case of each Distribution Date through and
including the Distribution Date on which the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in respect thereof) remaining in the
Trust Fund is reduced to less than 10% of the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 0.740% in the case of each Distribution Date
thereafter.
With respect to the Class M-1 Certificates and REMIC I Regular
Interest I-LTM1, 1.000% in the case of each Distribution Date through and
including the Distribution Date on which the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in respect thereof) remaining in the
Trust Fund is reduced to less than 10% of the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 1.500% in the case of each Distribution Date
thereafter.
With respect to the Class M-2 Certificates and REMIC I Regular
Interest I-LTM2, 1.950% in the case of each Distribution Date through and
including the Distribution Date on which the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in respect thereof) remaining in the
Trust Fund is reduced to less than 10% of the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 2.925% in the case of each Distribution Date
thereafter.
With respect to the Class M-3 Certificates and REMIC I Regular
Interest I-LTM3, 2.300% in the case of each Distribution Date through and
including the Distribution Date on which the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in respect thereof) remaining in the
Trust Fund is reduced to less than 10% of the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 3.450% in the case of each Distribution Date
thereafter.
With respect to the Class M-4 Certificates and REMIC I Regular
Interest I-LTM4, 3.350% in the case of each Distribution Date through and
including the Distribution Date on which the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in respect thereof) remaining in the
Trust Fund is reduced to less than 10% of the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 5.025% in the case of each Distribution Date
thereafter.
With respect to the Class M-5 Certificates and REMIC I Regular
Interest I-LTM5, 4.000% in the case of each Distribution Date through and
including the Distribution Date on which the aggregate Principal Balance of the
Mortgage Loans (and properties acquired in respect thereof) remaining in the
Trust Fund is reduced to less than 10% of the aggregate Cut-off Date Principal
Balance of the Mortgage Loans and 6.000% in the case of each Distribution Date
thereafter.
With respect to the Class MV-6 Certificates and REMIC I Regular
Interest I--
-4-
LTMV6, 4.000% in the case of each Distribution Date through and including the
Distribution Date on which the aggregate Principal Balance of the Mortgage Loans
(and properties acquired in respect thereof) remaining in the Trust Fund is
reduced to less than 10% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans and 6.000% in the case of each Distribution Date thereafter.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or a Non-United States Person shall not be a Holder of
a Residual Certificate for any purposes hereof and, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or the Servicer or any Affiliate thereof shall be deemed
not to be outstanding and the Voting Rights to which it is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent has been obtained, except as
otherwise provided in Section 11.01. The Trustee and the NIMS Insurer may
conclusively rely upon a certificate of the Depositor or the Servicer in
determining whether a Certificate is held by an Affiliate thereof. All
references herein to "Holders" or "Certificateholders" shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee and the NIMS Insurer shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to each Class A
Certificate, Mezzanine Certificate or Class P Certificate as of any date of
determination, the Certificate Principal Balance of such Certificate on the
Distribution Date immediately prior to such date of determination, minus all
distributions allocable to principal made thereon and Realized Losses allocated
thereto on such immediately prior Distribution Date (or, in the case of any date
of determination up to and including the first Distribution Date, the initial
Certificate Principal Balance of such Certificate, as stated on the face
thereof). 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 (A) the then aggregate Uncertificated
Balances of the REMIC I Regular Interests over (B) the then aggregate
Certificate Principal Balances of the Class A Certificates, the Mezzanine
Certificates and the Class P Certificates then outstanding.
"Certificate Register": The register maintained pursuant to Section
5.02.
"Class": Collectively, all of the Certificates bearing the same class
designation.
"Class A Certificates": Any Class A-1 Certificate, Class A-2
Certificate or Class A-3 Certificate.
"Class A Principal Distribution Amount": With respect to any
Distribution Date, the
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sum of (i) the Class X-0 Xxxxxxxxx Xxxxxxxxxxxx Xxxxxx, (xx) the Class A-2
Principal Distribution Amount and (iii) the Class A-3 Principal Distribution
Amount.
"Class A-1 Allocation Percentage": With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is (i) the
Group I Principal Remittance Amount for such Distribution Date, and the
denominator of which is (ii) the Principal Remittance Amount for such
Distribution Date.
"Class A-1 Certificate": Any one of the Class A-1 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-1 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class A-1 Principal Distribution Amount": The excess of (x) the
Certificate Principal Balance of the Class A-1 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 62.00% and
(ii) the aggregate Stated Principal Balance of the Group I Mortgage Loans as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Group I Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus $1,741,905.54.
"Class A-2 Allocation Percentage": With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is (i) the
Group II Principal Remittance Amount for such Distribution Date, and the
denominator of which is (ii) the Principal Remittance Amount for such
Distribution Date.
"Class A-2 Certificate": Any one of the Class A-2 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-2 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class A-2 Principal Distribution Amount": The excess of (x) the
Certificate Principal Balance of the Class A-2 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 62.00% and
(ii) the aggregate Stated Principal Balance of the Group II Mortgage Loans as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus $750,157.33.
"Class A-3 Allocation Percentage": With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is (i) the
Group III Principal Remittance Amount for such Distribution Date, and the
denominator of which is (ii) the Principal Remittance
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Amount for such Distribution Date.
"Class A-3 Certificate": Any one of the Class A-3 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-3 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class A-3 Principal Distribution Amount": The excess of (x) the
Certificate Principal Balance of the Class A-3 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 62.00% and
(ii) the aggregate Stated Principal Balance of the Group III Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Group III Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus $1,228,561.05.
"Class CE Certificate": Any one of the Class CE Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-11 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class M-1 Certificate": Any one of the Class M-1 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-4 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class M-1 Principal Distribution Amount": The excess of (x) the sum
of (i) the Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Class A 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) 76.50% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus $3,720,623.92.
"Class M-2 Certificate": Any one of the Class M-2 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-5 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class M-2 Principal Distribution Amount": The excess of (x) the sum
of (i) the Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Class A Principal Distribution
Amount on such Distribution Date), (ii) the Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the distribution of the Class
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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 Date over (y) the lesser of (A) the product of (i) 87.00% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus $3,720,623.92.
"Class M-3 Certificate": Any one of the Class M-3 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-6 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class M-3 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution 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 distribution 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) 89.50% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus $3,720,623.92.
"Class M-4 Certificate": Any one of the Class M-4 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-7 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class M-4 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution 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 distribution 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
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (v) the Certificate Principal Balance of the Class M-4 Certificates
immediately prior to such Distribution Date over (y)
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the lesser of (A) the product of (i) 91.80% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus $3,720,623.92.
"Class M-5 Certificate": Any one of the Class M-5 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-8 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class M-5 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution 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 distribution 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
distribution 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 distribution 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 aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus $3,720,623.92.
"Class M-6 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (ii)
the Certificate Principal Balance of the Class M-1 Certificates (after taking
into account the distribution 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 distribution 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
distribution 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 distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date) and (vi) the aggregate
Certificate Principal Balance of the Class MV-6 Certificates and the Class MF-6
Certificates immediately prior
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to such Distribution Date over (y) the lesser of (A) the product of (i) 97.00%
and (ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus $3,720,623.92.
"Class MF-6 Certificate": Any one of the Class MF-6 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-10 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class MV-6 Certificate": Any one of the Class MV-6 Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-9 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class P Certificate": Any one of the Class P Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-12 and evidencing a Regular Interest in REMIC II for
purposes of the REMIC Provisions.
"Class R Certificate": Any one of the Class R Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-13 and evidencing the ownership of the Class R-I Interest
and the Class R-II Interest.
"Class R-I Interest": The uncertificated Residual Interest in REMIC I.
"Class R-II Interest": The uncertificated Residual Interest in REMIC
II.
"Closing Date": May 28, 2003.
"Code": The Internal Revenue Code of 1986.
"Collection Account": The account or accounts created and maintained,
or caused to be created and maintained, by the Servicer pursuant to Section
3.10(a), which shall be entitled "Chase Manhattan Mortgage Corporation, as
Servicer for U.S. Bank National Association, as Trustee, in trust for the
registered holders of MASTR Asset Backed Securities Trust 2003-WMC1, Mortgage
Pass-Through Certificates." The Collection Account must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
"Compensating Interest": As defined in Section 3.24 hereof.
"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 000 Xxxx Xxxxx
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Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, 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 Certificate": With respect to (i) REMIC I Regular
Interest I-LTA1, (ii) REMIC I Regular Interest I-LTA2, (iii) REMIC I Regular
Interest I-LTA3, (iv) REMIC I Regular Interest I-LTM1, (v) REMIC I Regular
Interest I-LTM2, (vi) REMIC I Regular Interest I-LTM3, (vii) REMIC I Regular
Interest I-LTM4, (viii) REMIC I Regular Interest I-LTM5, (ix) REMIC I Regular
Interest I-LTMV6, (x) REMIC I Regular Interest I-LTMF6 and (xi) REMIC I Regular
Interest I-LTP, (i) the Class A-1 Certificates, (ii) the Class A-2 Certificates,
(iii) the Class A-3 Certificates, (iv) the Class M-1 Certificates, (v) the Class
M-2 Certificates, (vi) the Class M-3 Certificates, (vii) the Class M-4
Certificates, (viii) the Class M-5 Certificates, (ix) the Class MV-6
Certificates, (x) the Class MF-6 Certificates and (xi) the Class P Certificates,
respectively.
"Credit Enhancement Percentage": For any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the sum of the
aggregate Certificate Principal Balances of the Mezzanine Certificates and the
Class CE Certificates, and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans, calculated prior to taking into account
distributions of principal on the Mortgage Loans and distribution of the Group I
Principal Distribution Amount, the Group II Principal Distribution Amount and
the Group III Principal Distribution Amount to the Certificates then entitled to
distributions of principal on such Distribution Date.
"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 to the last day of the
preceding calendar month and the denominator of which is the sum of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Custodial Agreement": The custodial agreement, dated May 1, 2003,
entered into among the Trustee, the Custodian and the Servicer in the form of
Exhibit K attached hereto.
"Custodian": Xxxxx Fargo Bank Minnesota, National Association, a
national banking association, or its successor in interest as Custodian pursuant
to the Custodial Agreement.
"Cut-off Date": With respect to each Original Mortgage Loan, May 1,
2003. With respect to all Qualified Substitute Mortgage Loans, their respective
dates of substitution. References herein to the "Cut-off Date," when used with
respect to more than one Mortgage Loan, shall be to the respective Cut-off Dates
for such Mortgage Loans.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the unpaid principal balance thereof as of the Cut-off Date of such Mortgage
Loan (or as of the applicable date of substitution with respect to a Qualified
Substitute Mortgage Loan), after giving effect to scheduled payments due on or
before the Cut-off Date, whether or not received.
"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
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Valuation.
"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 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced by
a Qualified Substitute Mortgage Loan.
"Delinquency Percentage": As of the last day of the related Due
Period, the percentage equivalent of a fraction, the numerator of which is the
aggregate Stated Principal Balance of all Mortgage Loans that, as of the last
day of the previous calendar month, are 60 or more days delinquent, are in
foreclosure, have been converted to REO Properties or have been discharged by
reason of bankruptcy, and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties as of the last day of
the previous calendar month.
"Depositor": Mortgage Asset Securitization Transactions, Inc., a
Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
CEDE & Co. 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 and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
"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 REMIC I other than through an
Independent Contractor; provided, however, that the Trustee (or the Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Servicer on behalf of the Trustee)
establishes rental terms, 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.
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"Disqualified Organization": Any of the following: (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers'cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an "electing
large partnership" and (vi) any other Person so designated by the Trustee based
upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause any of REMIC I or REMIC II or any
Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.10(b), which shall be entitled
"U.S. Bank National Association, as Trustee, in trust for the registered holders
of MASTR Asset Backed Securities Trust 2003-WMC1, Mortgage Pass-Through
Certificates." The Distribution Account must be an Eligible Account.
"Distribution Date": The 25th day of any month, or if such 25th day is
not a Business Day, the Business Day immediately following such 25th day,
commencing in June 2003.
"Due Date": With respect to each Distribution Date, the first day of
the calendar month in which such Distribution Date occurs, which is generally
the day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the month immediately preceding the month in
which such Distribution Date occurs and ending on the related Due Date.
"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 P-1 by Xxxxx'x, F-1 by Fitch or A-1+ by S&P (or comparable ratings if
Xxxxx'x, Fitch and S&P are not the Rating Agencies) at the time any amounts are
held on deposit therein, (ii) with respect to any Escrow Account, an account or
accounts the deposits in which are fully insured by the FDIC (to the limits
established by such corporation), the uninsured deposits in which account are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the NIMS Insurer, the Trustee and to each Rating Agency, the Certificateholders
will have a claim with respect to the funds in such account or a perfected first
priority security interest against such collateral (which shall be limited
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to Permitted Investments) securing such funds that is superior to claims of any
other depositors or creditors of the depository institution with which such
account is maintained, (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 the NIMS Insurer and to each Rating
Agency without reduction or withdrawal of their then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the Trustee and
the NIMS Insurer. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Account": The account or accounts created and maintained
pursuant to Section 3.09.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, 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 land.
"Excess Overcollateralized Amount": With respect to the Class A
Certificates and the Mezzanine Certificates and any Distribution Date, the
excess, if any, of (i) the Overcollateralized Amount for such Distribution Date,
assuming that 100% of the Principal Remittance Amount is applied as a principal
payment on such Distribution Date over (ii) the Overcollateralization Target
Amount for such Distribution Date.
"Extra Principal Distribution Amount": With respect to any
Distribution Date, the lesser of (x) the Monthly Interest Distributable Amount
payable on the Class CE Certificates on such Distribution Date as reduced by
Realized Losses allocated thereto with respect to such Distribution Date
pursuant to Section 4.04 and (y) the Overcollateralization Deficiency Amount for
such Distribution Date.
"Extraordinary Trust Fund Expense": Any amounts reimbursable to the
Trustee, or any director, officer, employee or agent of the Trustee from the
Trust Fund pursuant to Section 8.05 or Section 10.01(c) and any amounts payable
from the Distribution Account in respect of taxes pursuant to Section
10.01(g)(iii).
"Xxxxxx Xxx": Xxxxxx Xxx, formally known as the Federal National
Mortgage Association, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Originator, the Seller, the Depositor or the Servicer pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01), a determination
made by the Servicer that all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries which the Servicer, in its reasonable good faith
judgment,
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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 Ratings, or its successor in interest.
"Fixed-Rate Mortgage Loan": Each of the Mortgage Loans identified in
the Mortgage Loan Schedule as having a Mortgage Rate that is fixed.
"Formula Rate": For any Distribution Date and the Class A-1
Certificates and the Mezzanine Certificates, the lesser of (i) One-Month LIBOR
plus the related Certificate Margin and (ii) the Maximum Cap Rate.
For any Distribution Date and the Class A-2 Certificates, the lesser
of (i) One-Month LIBOR plus the related Certificate Margin and (ii) beginning on
the 21st Distribution Date, the Maximum Cap Rate.
For any Distribution Date and the Class A-3 Certificates and the
Mezzanine Certificates, the lesser of (i) One-Month LIBOR plus the related
Certificate Margin and (ii) the Maximum Cap Rate.
"Xxxxxxx Mac": Xxxxxxx Mac, formally known as the Federal Home Loan
Mortgage Corporation, or any successor thereto.
"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 Rate for such Adjustable-Rate
Mortgage Loan.
"Group I Basic Principal Distribution Amount": With respect to any
Distribution Date, the excess of (i) the Group I Principal Remittance Amount for
such Distribution Date over (ii)(a) the Overcollateralization Release Amount, if
any, for such Distribution Date multiplied by (b) the Class A-1 Allocation
Percentage.
"Group I Interest Remittance Amount": With respect to any Distribution
Date, that portion of the Available Funds for such Distribution Date
attributable to interest received or advanced with respect to the Group I
Mortgage Loans.
"Group I Mortgage Loan": A Mortgage Loan assigned to Loan Group I with
a principal balance that conforms to Xxxxxx Xxx and Xxxxxxx Mac loan limits.
"Group I Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group I Basic Principal Distribution
Amount for such Distribution Date and (ii)(a) the Extra Principal Distribution
Amount for such Distribution Date multiplied by (b) the Class A-1 Allocation
Percentage.
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"Group I Principal Remittance Amount": With respect to any
Distribution Date, the sum of (i) each scheduled payment of principal collected
or advanced on the Group I Mortgage Loans by the Servicer that were due during
the related Due Period, (ii) the principal portion of all partial and full
principal prepayments of the Group I Mortgage Loans applied by the Servicer
during the related Prepayment Period, (iii) the principal portion of all related
Net Liquidation Proceeds and Insurance Proceeds received during such Prepayment
Period with respect to the Group I Mortgage Loans, (iv) that portion of the
Purchase Price, representing principal of any repurchased Group I Mortgage Loan,
deposited to the Collection Account during such Prepayment Period, (v) the
principal portion of any related Substitution Adjustment Amounts deposited in
the Collection Account during such Prepayment Period with respect to the Group I
Mortgage Loans and (vi) on the Distribution Date on which the Trust Fund is to
be terminated pursuant to Section 9.01, that portion of the Termination Price,
in respect of principal on the Group I Mortgage Loans.
"Group II Basic Principal Distribution Amount": With respect to any
Distribution Date, the excess of (i) the Group II Principal Remittance Amount
for such Distribution Date over (ii)(a) the Overcollateralization Release
Amount, if any, for such Distribution Date multiplied by (b) the Class A-2
Allocation Percentage.
"Group II Interest Remittance Amount": With respect to any
Distribution Date, that portion of the Available Funds for such Distribution
Date attributable to interest received or advanced with respect to the Group II
Mortgage Loans.
"Group II Mortgage Loan": A Mortgage Loan assigned to Loan Group II
with a principal balance that conforms to Xxxxxx Mae and Xxxxxxx Mac loan
limits.
"Group II Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group II Basic Principal Distribution
Amount for such Distribution Date and (ii)(a) the Extra Principal Distribution
Amount for such Distribution Date multiplied by (b) the Class A-2 Allocation
Percentage.
"Group II Principal Remittance Amount": With respect to any
Distribution Date, the sum of (i) each scheduled payment of principal collected
or advanced on the Group II Mortgage Loans by the Servicer that were due during
the related Due Period, (ii) the principal portion of all partial and full
principal prepayments of the Group II Mortgage Loans applied by the Servicer
during the related Prepayment Period, (iii) the principal portion of all related
Net Liquidation Proceeds and Insurance Proceeds received during such Prepayment
Period with respect to the Group II Mortgage Loans, (iv) that portion of the
Purchase Price, representing principal of any repurchased Group II Mortgage
Loan, deposited to the Collection Account during such Prepayment Period, (v) the
principal portion of any related Substitution Adjustment Amounts deposited in
the Collection Account during such Prepayment Period with respect to the Group
II Mortgage Loans and (vi) on the Distribution Date on which the Trust Fund is
to be terminated pursuant to Section 9.01, that portion of the Termination
Price, in respect of principal on the Group II Mortgage Loans.
"Group III Basic Principal Distribution Amount": With respect to any
Distribution Date, the excess of (i) the Group III Principal Remittance Amount
for such Distribution Date over (ii)(a) the Overcollateralization Release
Amount, if any, for such Distribution Date multiplied by (b)
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the Class A-3 Allocation Percentage.
"Group III Interest Remittance Amount": With respect to any
Distribution Date, that portion of the Available Funds for such Distribution
Date attributable to interest received or advanced with respect to the Group III
Mortgage Loans.
"Group III Mortgage Loan": A Mortgage Loan assigned to Loan Group III
with a principal balance that may or may not conform to Xxxxxx Mae and Xxxxxxx
Mac loan limits.
"Group III Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Group III Basic Principal Distribution
Amount for such Distribution Date and (ii)(a) the Extra Principal Distribution
Amount for such Distribution Date multiplied by (b) the Class A-3 Allocation
Percentage.
"Group III Principal Remittance Amount": With respect to any
Distribution Date, the sum of (i) each scheduled payment of principal collected
or advanced on the Group III Mortgage Loans by the Servicer that were due during
the related Due Period, (ii) the principal portion of all partial and full
principal prepayments of the Group III Mortgage Loans applied by the Servicer
during the related Prepayment Period, (iii) the principal portion of all related
Net Liquidation Proceeds and Insurance Proceeds received during such Prepayment
Period with respect to the Group III Mortgage Loans, (iv) that portion of the
Purchase Price, representing principal of any repurchased Group III Mortgage
Loan, deposited to the Collection Account during such Prepayment Period, (v) the
principal portion of any related Substitution Adjustment Amounts deposited in
the Collection Account during such Prepayment Period with respect to the Group
III Mortgage Loans and (vi) on the Distribution Date on which the Trust Fund is
to be terminated pursuant to Section 9.01, that portion of the Termination
Price, in respect of principal on the Group III Mortgage Loans.
"Indenture": An indenture relating to the issuance of notes secured by
the Class CE Certificates, the Class P Certificates and/or the Class R
Certificates (or any portion thereof) which may or may not be guaranteed by the
NIMS Insurer.
"Independent": When used with respect to any specified Person, any
such Person who (a) is in fact independent of the Depositor, the Seller, the
Servicer, the Originator and their respective Affiliates, (b) does not have any
direct financial interest in or any material indirect financial interest in the
Depositor, the Seller, the Originator, the Servicer or any Affiliate thereof,
and (c) is not connected with the Depositor, the Seller, the Originator, 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, the Seller, the Originator, the Servicer or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, the Seller, the Originator, 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 REMIC I
within the meaning of Section 856(d)(3) of the Code if REMIC I 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% or
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more of any Class of Certificates), so long as REMIC I does not receive or
derive any income from such Person and provided that the relationship between
such Person and REMIC I 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 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.
"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 Determination Date": With respect to the Class A
Certificates, the Mezzanine Certificates (other than the Class MF-6
Certificates), REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2,
REMIC I Regular Interest I-LTA3, REMIC I Regular Interest I- LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM5 and REMIC I Regular Interest
I-LTMV6 and any Accrual Period therefor, the second London Business Day
preceding the commencement of such Accrual Period.
"Late Collections": With respect to any Mortgage Loan and any Due
Period, all amounts received subsequent to the Determination Date immediately
following such Due Period, whether as late payments of Monthly Payments or as
Insurance 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 for such Due Period and not previously recovered.
"Liquidated Mortgage Loan": As to any Distribution Date, any Mortgage
Loan in respect of which the Servicer has determined, in its reasonable
judgment, as of the end of the related Prepayment Period, that all Liquidation
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 Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from REMIC I by reason of its being purchased, sold or replaced pursuant
to or as contemplated by Section 2.03, Section 3.16(c) or Section 9.01. With
respect to any REO Property, either of the following events: (i) a Final
Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from REMIC
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I by reason of its being purchased pursuant to Section 9.01.
"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, (ii) the
liquidation of a defaulted Mortgage Loan through a trustee's sale, foreclosure
sale or otherwise, or (iii) the repurchase, substitution or sale of a Mortgage
Loan or an REO Property pursuant to or as contemplated by Section 2.03, Section
3.16(c), Section 3.23 or Section 9.01.
"Loan-to-Value Ratio": As of any date of determination, the fraction,
expressed as a percentage, the numerator of which is the principal balance of
the related Mortgage Loan at such date and the denominator of which is the Value
of the related Mortgaged Property.
"Loan Group": Any of Loan Group I, Loan Group II or Loan Group III, as
the context requires.
"Loan Group I": The group of Mortgage Loans identified in the Mortgage
Loan Schedule as having been assigned to Loan Group I.
"Loan Group II": The group of Mortgage Loans identified in the
Mortgage Loan Schedule as having been assigned to Loan Group II.
"Loan Group III": The group of Mortgage Loans identified in the
Mortgage Loan Schedule as having been assigned to Loan Group III.
"London Business Day": Any day on which banks in the City of London
are open and conducting transactions in United States dollars.
"Loss Severity Percentage": With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the amount of
Realized Losses incurred on a Mortgage Loan and the denominator of which is the
principal balance of such Mortgage Loan immediately prior to the liquidation of
such Mortgage Loan.
"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 REMIC I Remittance Rate for each of REMIC I Regular Interests X-XXX0,
X-XXX0, X-XXX0, X-XXX0, X-XXX0, X-XXX0, X-XXX0, X-XXX0, X-XXXX0, X-XXXX0 and
I-LTZZ, with the rate on each such REMIC I Regular Interest subject to a cap
equal to (i) the lesser of (a) One-Month LIBOR plus the related margin and (b)
the Net WAC Cap rate or (ii) the Pass-Through Rate (in the case of REMIC I
Regular Interest I-LTMF6) for the purpose of this calculation for such
Distribution Date and with the rate on REMIC I Regular Interest I-LTZZ subject
to a cap of zero for the purpose of this calculation; provided, however, that
solely for this purpose, calculations of the REMIC I Remittance Rate and the
related caps with respect to such REMIC I Regular Interests (other than REMIC I
Regular Interest I-LTMF6 and REMIC I Regular Interest I-LTZZ) 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.
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"Maximum Cap Rate": For any Distribution Date with respect to the
Offered Certificates, a per annum rate equal to the weighted average of the
Adjusted Net Maximum Mortgage Rates of the Mortgage Loans multiplied by a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days elapsed in the related Accrual Period.
"Maximum I-LTZZ Uncertificated Interest Deferral Amount": With respect
to any Distribution Date, the excess of (i) accrued interest at the REMIC I
Remittance Rate applicable to REMIC I Regular Interest I-LTZZ for such
Distribution Date on a balance equal to the Uncertificated Balance of REMIC I
Regular Interest I-LTZZ minus the REMIC I Overcollateralization Amount, in each
case for such Distribution Date, over (ii) Uncertificated Interest on REMIC I
Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular
Interest I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC
I Regular Interest I-LTM5, REMIC I Regular Interest I-LTMV6 and REMIC I Regular
Interest I-LTMF6 for such Distribution Date, with (A) the rate on REMIC I
Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular
Interest I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC
I Regular Interest I-LTM5 and REMIC I Regular Interest I-LTMV6 subject to a cap
equal to the related Formula Rate; provided, however, each cap shall be
multiplied by a fraction, the numerator of which is the actual number of days in
the related Interest Accrual Period and the denominator of which is 30; and (B)
the rate on REMIC I Regular Interest I-LTMF6, subject to a cap equal to the
related Pass-Through Rate.
"Maximum Mortgage Rate": With respect to each Adjustable-Rate Mortgage
Loan, the percentage set forth in the related Mortgage Note as the maximum
Mortgage Rate thereunder.
"MERS": Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
"MERS(R) System": The system of recording transfers of Mortgages
electronically maintained by MERS.
"MIN": The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R)System.
"MOM Loan": With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
"Mezzanine Certificate": Any Class M-1 Certificate, Class M-2
Certificate, Class M- 3 Certificate, Class M-4 Certificates, Class M-5
Certificates, Class MV-6 Certificate or Class MF-6 Certificate.
"Minimum Mortgage Rate": With respect to each Adjustable-Rate Mortgage
Loan, the percentage set forth in the related Mortgage Note as the minimum
Mortgage Rate thereunder.
"Monthly Interest Distributable Amount": With respect to the Class A
Certificates,
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the Mezzanine Certificates and the Class CE Certificates and any Distribution
Date, the amount of interest accrued during the related Accrual Period at the
related Pass-Through Rate on the Certificate Principal Balance (or Notional
Amount in the case of the Class CE Certificates) of such Class immediately prior
to such Distribution Date, reduced by any Prepayment Interest Shortfalls (to the
extent not covered by payments made by the Servicer pursuant to Section 3.24)
and Relief Act Interest Shortfalls (allocated to such Certificate based on its
respective entitlements to interest irrespective of any Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls for such Distribution Date).
"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; (b) without giving effect to any extension granted or agreed to by
the Servicer pursuant to Section 3.07 and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when due.
"Monthly Statement": The statement prepared by the Trustee pursuant to
Section 4.02.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest.
"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 Loan": Each mortgage loan transferred and assigned to the
Trustee and delivered to the Trustee pursuant to Section 2.01 or Section 2.03(b)
of this Agreement, as held from time to time as a part of the Trust, the
Mortgage Loans so held being identified in the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The agreement among the Seller,
the Originator and the Depositor, regarding the sale of the Mortgage Loans by
the Seller to the Depositor, substantially in the form of Exhibit D annexed
hereto.
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in REMIC I on such date, attached hereto as Schedule 1. The Mortgage
Loan Schedule shall set forth the following information with respect to each
Mortgage Loan:
(1) the Mortgage Loan identifying number;
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(2) [reserved];
(3) the state and zip code of the Mortgaged Property;
(4) a code indicating whether the Mortgaged Property was represented
by the borrower, at the time of origination, as being owner-occupied;
(5) the type of Residential Dwelling constituting the Mortgaged
Property;
(6) the original months to maturity;
(7) the stated remaining months to maturity from the Cut-off Date
based on the original amortization schedule;
(8) the Loan-to-Value Ratio at origination;
(9) the Mortgage Rate in effect immediately following the Cut-off
Date;
(10) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(11) the stated maturity date;
(12) the amount of the Monthly Payment at origination;
(13) the amount of the Monthly Payment due on the first Due Date after
the Cut-off Date;
(14) the last Due Date on which a Monthly Payment was actually applied
to the unpaid Stated Principal Balance;
(15) the original principal amount of the Mortgage Loan;
(16) the Stated Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date;
(17) a code indicating the purpose of the Mortgage Loan (I.E.,
purchase financing, rate/term refinancing, cash-out refinancing);
(18) the Mortgage Rate at origination;
(19) a code indicating the documentation program (I.E., full
documentation, limited documentation, stated income documentation);
(20) the risk grade;
(21) the Value of the Mortgaged Property;
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(22) the sale price of the Mortgaged Property, if applicable;
(23) the actual unpaid principal balance of the Mortgage Loan as of
the Cut-off Date;
(24) the type and term of the related Prepayment Charge;
(25) the rounding code;
(26) the program code;
(27) a code indicating the lien priority for Mortgage Loans;
(28) with respect to each Adjustable Rate Mortgage Loan, the Minimum
Mortgage Rate;
(29) with respect to each Adjustable Rate Mortgage Loan, the Maximum
Mortgage Rate;
(30) with respect to each Adjustable Rate Mortgage Loan, the Gross
Margin;
(31) with respect to each Adjustable Rate Mortgage Loan, the next
Adjustment Date;
(32) with respect to each Adjustable Rate Mortgage Loan, the Periodic
Rate Cap;
(33) [reserved];
(34) the credit score ("FICO") of such Mortgage Loan; and
(35) the total amount of points and fees charged such Mortgage Loan.
The Mortgage Loan Schedule shall set forth the following information
with respect to the Mortgage Loans in the aggregate and for each Loan Group as
of the Cut-off Date: (1) the number of Mortgage Loans (separately identifying
the number of Fixed-Rate Mortgage Loans and the number of Adjustable-Rate
Mortgage Loans); (2) the current Principal Balance of the Mortgage Loans; (3)
the weighted average Mortgage Rate of the Mortgage Loans and (4) the weighted
average maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be
amended from time to time by the Depositor in accordance with the provisions of
this Agreement. With respect to any Qualified Substitute Mortgage Loan, the
Cut-off Date shall refer to the related Cut-off Date for such Mortgage Loan,
determined in accordance with the definition of Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on Schedule 1
and existing
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from time to time thereafter, and any REO Properties acquired in respect
thereof.
"Mortgage 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 with respect to the
Adjustable-Rate Mortgage Loans, (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 Mortgage Loan Schedule as the Mortgage 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 equal to the sum, rounded to
the nearest or next highest 0.125% as provided in the Mortgage Note, of the
Index, as most recently available as of a date prior to the Adjustment Date as
set forth in the related Mortgage Note, plus the related Gross Margin; provided
that the Mortgage Rate on such Adjustable-Rate Mortgage Loan on any Adjustment
Date shall never be more than the lesser of (i) the sum of the Mortgage Rate in
effect immediately prior to the Adjustment Date plus the related Periodic Rate
Cap, if any, and (ii) the related Maximum Mortgage Rate, and shall never be less
than the greater of (i) the Mortgage Rate in effect immediately prior to the
Adjustment Date less the Periodic Rate Cap, if any, and (ii) the related Minimum
Mortgage Rate. 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.
"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 and Insurance Proceeds net of
Advances, 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 Monthly Excess Cashflow": With respect to each Distribution Date,
the sum of (a) any Overcollateralization Release Amount for such Distribution
Date and (b) the excess of (x) Available Funds for such Distribution Date over
(y) the sum for such Distribution Date of (A) the Monthly Interest Distributable
Amounts for the Class A Certificates and the Mezzanine Certificates, (B) the
Unpaid Interest Shortfall Amounts for the Class A Certificates and (C) the
Principal Remittance Amount.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the related
REO Property) as of any date of determination, a per annum rate of interest
equal to the then applicable Mortgage Rate for such Mortgage Loan minus the
Servicing Fee Rate.
"Net WAC Rate": For any Distribution Date with respect to the Class
A-1 Certificates, a per annum rate equal to the product of (x) the weighted
average of the Adjusted Net Mortgage Rates of the Group I Mortgage Loans,
weighted based on their outstanding Principal Balances as of the first day of
the calendar month preceding the month in which the Distribution
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Date occurs and (y) a fraction, the numerator of which is 30 and the denominator
of which is the actual number of days elapsed in the related Accrual Period. For
federal income tax purposes, the economic equivalent of such rate shall be
expressed as the weighted average of the REMIC I Remittance Rate on REMIC I
Regular Interest I-LT1GRP, weighted on the basis of the Uncertificated Balance
of such REMIC I Regular Interest.
For any Distribution Date with respect to the Class A-2 Certificates,
a per annum rate equal to the product of (x) the weighted average of the
Adjusted Net Mortgage Rates of the Group II Mortgage Loans, weighted based on
their outstanding Principal Balances as of the first day of the calendar month
preceding the month in which the Distribution Date occurs and (y) a fraction,
the numerator of which is 30 and the denominator of which is the actual number
of days elapsed in the related Accrual Period. For federal income tax purposes,
the economic equivalent of such rate shall be expressed as the weighted average
of the REMIC I Remittance Rate on REMIC I Regular Interest I-LT2GRP, weighted on
the basis of the Uncertificated Balance of such REMIC I Regular Interest.
For any Distribution Date with respect to the Class A-3 Certificates,
a per annum rate equal to the product of (x) the weighted average of the
Adjusted Net Mortgage Rates of the Group III Mortgage Loans, weighted based on
their outstanding Principal Balances as of the first day of the calendar month
preceding the month in which the Distribution Date occurs and (y) a fraction,
the numerator of which is 30 and the denominator of which is the actual number
of days elapsed in the related Accrual Period. For federal income tax purposes,
the economic equivalent of such rate shall be expressed as the weighted average
of the REMIC I Remittance Rate on REMIC I Regular Interest I-LT3GRP, weighted on
the basis of the Uncertificated Balance of such REMIC I Regular Interest.
For any Distribution Date with respect to the Mezzanine Certificates,
a per annum rate equal to the product of (x) the weighted average of the
Adjusted Net Mortgage Rates of the Group I Mortgage Loans, the Group II Mortgage
Loans and the Group III Mortgage Loans, weighted in proportion to the results of
subtracting from the aggregate Stated Principal Balance of each Loan Group the
Certificate Principal Balance of the related Class of Class A Certificates and
(y) for each Class of Mezzanine Certificates (other than the Class MF-4
Certificates) a fraction, the numerator of which is 30 and the denominator of
which is the actual number of days elapsed in the related Accrual Period. For
federal income tax purposes, the economic equivalent of such rate shall be
expressed as the weighted average of the REMIC I Remittance Rates on (a) REMIC I
Regular Interest I-LT1SUB, subject to a cap and a floor equal to the Adjusted
Net Mortgage Rates of the Group I Mortgage Loans, (b) REMIC I Regular Interest
I-LT2SUB, subject to a cap and a floor equal to the Adjusted Net Mortgage Rates
of the Group II Mortgage Loans and (c) REMIC I Regular Interest I-LT3SUB,
subject to a cap and a floor equal to the Adjusted Net Mortgage Rates of the
Group III Mortgage Loans, weighted on the basis of the Uncertificated Balance of
each such REMIC I Regular Interest.
"Net WAC Rate Carryover Amount": With respect to the Class A
Certificates and the Mezzanine Certificates and any Distribution Date, the sum
of (A) the positive excess of (i) the amount of interest accrued on such Class
of Certificates on such Distribution Date calculated at the related Formula Rate
(in the case of the Class A Certificates and Mezzanine Certificates other than
the Class MF-6 Certificates) or the fixed rate (in the case of the Class MF-6
Certificates), over (ii) the amount of interest accrued on such Class of
Certificates at the Net WAC Rate for such
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Distribution Date and (B) the Net WAC Rate Carryover Amount for the previous
Distribution Date not previously paid, together with interest thereon at a rate
equal to the Formula Rate (in the case of the Class A Certificates and Mezzanine
Certificates other than the Class MF-6 Certificates) or the fixed rate (in the
case of the Class MF-6 Certificates) for such Class of Certificates for such
Distribution Date and for such Accrual Period.
"Net WAC Rate Carryover Reserve Account": The account established and
maintained pursuant to Section 4.07.
"New Lease": Any lease of REO Property entered into on behalf of REMIC
I, including any lease renewed or extended on behalf of REMIC I, if REMIC I has
the right to renegotiate the terms of such lease.
"NIMS Insurer": Any insurer that is guaranteeing certain payments
under notes secured by collateral which includes all or a portion of the Class
CE Certificates, the Class P Certificates and/or the Class R Certificates.
"Nonrecoverable Advance": Any Advance previously made or proposed to
be made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Servicer, will not or, in the case of a proposed
Advance, would not be ultimately recoverable from related Late Collections,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property that,
in the good faith business judgment of the Servicer, will not or, in the case of
a proposed Servicing Advance, would not be ultimately recoverable from related
Late Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage
Loan or REO Property as provided herein.
"Non-United States Person": Any Person other than a United States
Person.
"Notional Amount": With respect to the Class CE Certificates and any
Distribution Date, the Uncertificated Balance of the REMIC I Regular Interests
for such Distribution Date.
"Officer's Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a vice president
(however denominated), and by the Treasurer, the Secretary, or one of the
assistant treasurers or assistant secretaries of the Servicer, the Originator,
the Seller or the Depositor, as applicable.
"One-Month LIBOR": With respect to the Class A Certificates, the
Mezzanine Certificates (other than the Class MF-6 Certificates), REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest
I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5 and REMIC I Regular Interest I-LTMV6 and any Accrual Period
therefor, the rate determined by the Trustee on the related Interest
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits, as such rate appears on
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Telerate Page 3750 as of 11:00 a.m. (London time) on such Interest Determination
Date; provided that if such rate does not appear on Telerate Page 3750, the rate
for such date will be determined on the basis of the offered rates of the
Reference Banks for one-month U.S. dollar deposits, as of 11:00 a.m. (London
time) on such Interest Determination Date. In such event, the Trustee will
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If on such Interest Determination Date, two or more
Reference Banks provide such offered quotations, One- Month LIBOR for the
related Accrual Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16%). If on
such Interest Determination Date, fewer than two Reference Banks provide such
offered quotations, One-Month LIBOR for the related Accrual Period shall be the
higher of (i) LIBOR as determined on the previous Interest Determination Date
and (ii) the Reserve Interest Rate. Notwithstanding the foregoing, if, under the
priorities described above, LIBOR for an Interest Determination Date would be
based on LIBOR for the previous Interest Determination Date for the third
consecutive Interest Determination Date, the Trustee shall select, after
consultation with the NIMS Insurer, an alternative comparable index (over which
the Trustee has no control), used for determining one-month Eurodollar lending
rates that is calculated and published (or otherwise made available) by an
independent party.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor or the Servicer, acceptable to
the Trustee, except that any opinion of counsel relating to (a) the
qualification of any of Trust REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
"Original Mortgage Loan": Any of the Mortgage Loans included in REMIC
I as of the Closing Date.
"Originator": WMC Mortgage Corp., a California corporation.
"Overcollateralization Deficiency Amount": With respect to any
Distribution Date, the amount, if any, by which the Overcollateralization Target
Amount exceeds the Overcollateralized Amount on such Distribution Date (after
giving effect to distributions in respect of the Group I Basic Principal
Distribution Amount, the Group II Basic Principal Distribution Amount and the
Group III Basic Principal Distribution Amount on such Distribution Date).
"Overcollateralization Release Amount": With respect to any
Distribution Date, the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the Excess Overcollateralized Amount.
"Overcollateralization Target Amount": With respect to any
Distribution Date, (i) 1.50% of the Cut-off Date Principal Balance of the
Mortgage Loans, (ii) on or after the Stepdown Date provided a Trigger Event is
not in effect, the greater of (x) 3.00% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (y) $3,720,623.92,
or (iii) on or after the Stepdown Date if a Trigger Event is in effect, the
Overcollateralization Target Amount for the immediately preceding Distribution
Date.
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"Overcollateralized Amount": For any Distribution Date, the amount
equal to (i) the aggregate Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) as of the related Determination Date minus (ii) the sum of the aggregate
Certificate Principal Balance of the Class A Certificates, the Mezzanine
Certificates and the Class P Certificates as of such Distribution Date after
giving effect to distributions to be made on such Distribution Date.
"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 Class A Certificates and the
Mezzanine Certificates (other than the Class MF-6 Certificates) and any
Distribution Date, a rate per annum equal to the lesser of (i) the related
Formula Rate for such Distribution Date and (ii) the Net WAC Rate for such
Distribution Date.
With respect to the Class MF-6 Certificates and each Distribution Date
through and including the Distribution Date on which the aggregate Principal
Balance of the Mortgage Loans (and properties acquired in respect thereof)
remaining in the Trust Fund is reduced to less than 10% of the aggregate Cut-off
Date Principal Balance of the Mortgage Loans, the lesser of (x) 6.500% per annum
and (y) the Net WAC Rate for such class for such Distribution Date and in the
case of each Distribution Date thereafter will equal the lesser of (x) 7.000%
per annum on each Distribution Date and (y) the Net WAC Rate for such
Distribution Date.
With respect to the Class CE Certificates and any Distribution Date, a
rate per annum equal to the percentage equivalent of a fraction, the numerator
of which is the sum of the amounts calculated pursuant to clauses (A) through
(M) below, and the denominator of which is the aggregate Uncertificated Balance
of REMIC I Regular Interest X-XXXX, X-XXX0, X-XXX0, X-XXX0, X-XXX0, X-XXX0,
X-XXX0, X-XXX0, X-XXX0, X-XXXX0, X-XXXX0 and I-LTMZZ. 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 REMIC I Remittance Rate for REMIC I Regular Interest I-LTAA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTAA;
(B) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTA1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTA1;
(C) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTA2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTA2;
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(D) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTA2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTA3;
(E) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTM1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM1;
(F) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTM2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM2;
(G) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTM3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM3;
(H) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTM4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM4;
(I) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTM5
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM5;
(J) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTMV6
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTMV6;
(K) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTMF6
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTMF6;
(L) the REMIC I Remittance Rate for REMIC I Regular Interest I-LTZZ
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTZZ; and
(M) 100% of the interest on REMIC I Regular Interest I-LTP.
"Percentage Interest": With respect to any Class of Certificates
(other than the Residual Certificates), the undivided percentage ownership in
such Class evidenced by such Certificate, expressed as a percentage, the
numerator of which is the initial Certificate Principal Balance or Notional
Amount represented by such Certificate and the denominator of which is the
aggregate initial Certificate Principal Balance or Notional Amount of all of the
Certificates of such Class. The Class A Certificates and the Mezzanine
Certificates are issuable only in minimum Percentage Interests corresponding to
minimum initial Certificate Principal Balances of $25,000 and integral multiples
of $1.00 in excess thereof. The Class P Certificates are issuable only in
Percentage
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Interests corresponding to initial Certificate Principal Balances of $20 and
integral multiples thereof. The Class CE Certificates are issuable only in
minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $10,000 and integral multiples of $1.00 in excess thereof;
provided, however, that a single Certificate of each such Class of Certificates
may be issued having a Percentage Interest corresponding to the remainder of the
aggregate initial Certificate Principal Balance or Notional Amount of such Class
or to an otherwise authorized denomination for such Class plus such remainder.
With respect to any Residual Certificate, the undivided percentage ownership in
such Class evidenced by such Certificate, as set forth on the face of such
Certificate. The Residual Certificates are issuable in Percentage Interests of
20% and multiples thereof.
"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 Rate
for such Mortgage Loan may increase or decrease (without regard to the Maximum
Mortgage Rate or the Minimum Mortgage Rate) on such Adjustment Date from the
Mortgage Rate in effect immediately prior to such Adjustment Date.
"Permitted 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 NIMS Insurer,
the Trustee or any of their respective Affiliates or for which an Affiliate of
the NIMS Insurer or 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 agent 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, if the only
Rating Agency is S&P, in the case of the principal depository institution
in a depository institution holding company, debt obligations of the
depository institution holding company) or its ultimate parent has a
short-term uninsured debt rating in the highest available rating category
of Xxxxx'x, Fitch and S&P and provided that each such investment has an
original maturity of no more than 365 days; and provided further that, if
the only Rating Agency is S&P and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations of
such subsidiary are not separately rated, the applicable rating shall be
that of the bank holding company; and, provided further that, if the
original maturity of such short-term obligations of a domestic branch of a
foreign depository institution or trust company shall exceed 30 days, the
short- term rating of such institution shall be A-1+ in the case of S&P if
S&P is the Rating Agency; 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
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company (acting as principal) rated A-1+ or higher by S&P, F-1+ or higher
by Fitch and A2 or higher by Xxxxx'x, 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, (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 a Rating Agency in its
highest long-term unsecured rating category 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 a Rating Agency in its highest short- term unsecured debt
rating available at the time of such investment;
(vi) units of money market funds, including those managed or advised
by the Trustee or its Affiliates, that have been rated "AAA" by S&P, "AAA"
by Fitch (if so rated by Fitch) and "Aaa" by Xxxxx'x; and
(vii) if previously confirmed in writing to the Trustee and consented
to by the NIMS Insurer, 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 a permitted investment of funds backing
securities having ratings equivalent to its highest initial rating of the
Class A 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.
"Permitted Transferee": Any Transferee of a Residual Certificate other
than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Plan": Any employee benefit plan or certain other retirement plans
and arrangements, including individual retirement accounts and annuities, Xxxxx
plans and bank collective investment funds and insurance company general or
separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA or Section 4975 of the Code.
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"Prepayment Assumption": As defined in the Prospectus Supplement.
"Prepayment Charge": With respect to any Prepayment Period, any
prepayment premium, fee, penalty or charge payable by a Mortgagor in connection
with any full or partial Principal Prepayment on a Mortgage Loan pursuant to the
terms of the related Mortgage Note (other than any Servicer Prepayment Charge
Payment Amount).
"Prepayment Charge Schedule": As of any date, the list of Prepayment
Charges on the Mortgage Loans included in REMIC I on such date, attached hereto
as Schedule 2 (including the Prepayment Charge Summary attached thereto). The
Prepayment Charge Schedule shall set forth the following information with
respect to each related Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination of the related Mortgage Loan;
(iv) the date on which the first monthly payment was due on the
related Mortgage Loan;
(v) the term of the related Mortgage Loan; and
(vi) the principal balance of the related Mortgage Loan as of the
Cut-off Date.
The Prepayment Charge Schedule shall be amended from time to time by
the Depositor in accordance with the provisions of this Agreement and a copy of
such amended Prepayment Charge Schedule shall be furnished by the Servicer to
the NIMS Insurer.
"Prepayment Interest Excess": With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a Principal Prepayment in full
during the portion of the related Prepayment Period occurring between the first
day and the Determination Date of the calendar month in which such Distribution
Date occurs, an amount equal to interest (to the extent received) at the
applicable Net Mortgage Rate on the amount of such Principal Prepayment for the
number of days commencing on the first day of the calendar month in which such
Distribution Date occurs and ending on the date on which such prepayment is so
applied.
"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 portion of the related Prepayment Period occurring between the
first day of the related Prepayment Period and the last day of the calendar
month preceding the month in which such Distribution Date occurs, an amount
equal to interest at the applicable Net Mortgage Rate on the amount of such
Principal Prepayment for the number of days commencing on the date on which the
prepayment is applied and ending on the last day of the calendar month preceding
the month in which such Distribution Date occurs.
"Prepayment Period": With respect to any Distribution Date, the period
commencing
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on the day after the Determination Date in the calendar month preceding the
calendar month in which such Distribution Date occurs (or, in the case of the
first Distribution Date, commencing on May 1, 2003) and ending on the
Determination Date of the calendar month in which such Distribution Date occurs.
"Prime Rate": The lesser of (i) the per annum rate of interest,
publicly announced from time to time by Chase Manhattan Bank at its principal
office in the City of New York, as its prime or base lending rate (any change in
such rate of interest to be effective on the date such change is announced by
Chase Manhattan Bank) and (ii) the maximum rate permissible under applicable
usury or similar laws limiting interest rates.
"Principal Balance": As to any Mortgage Loan other than a Liquidated
Mortgage Loan, and any day, the related Cut-off Date Principal Balance, minus
all collections credited against the Cut-off Date Principal Balance of any such
Mortgage Loan. 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 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 I Principal Remittance Amount, the Group II Principal
Remittance Amount and the Group III Principal Remittance Amount.
"Prospectus Supplement": That certain Prospectus Supplement dated May
22, 2003 relating to the public offering of the Class A Certificates and the
Mezzanine Certificates.
"PTCE": A Prohibited Transaction Class Exemption issued by the United
States Department of Labor which provides that exemptive relief is available to
any party to any transaction which satisfies the conditions of the exemption.
"Purchase Price": With respect to any Mortgage Loan or REO Property to
be purchased pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 9.01, and as confirmed by an Officer's Certificate from the Servicer and
to the Trustee an amount equal to the sum of (i) 100% of the Stated Principal
Balance thereof as of the date of purchase (or such other price as provided in
Section 9.01), (ii) in the case of (x) a Mortgage Loan, accrued interest on such
Stated Principal Balance at the applicable Net Mortgage 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, the sum of (1) accrued interest on such Stated Principal Balance at
the applicable
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Net Mortgage 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 through the end of the calendar month immediately preceding the
calendar month in which such REO Property was acquired, plus (2) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the total of all
net rental income, Insurance Proceeds, Liquidation Proceeds and Advances that as
of the date of purchase had been distributed as or to cover REO Imputed Interest
pursuant to Section 4.01, (iii) any unreimbursed Servicing Advances and Advances
(including Nonrecoverable Advances and Nonrecoverable Servicing 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 3.11(a)(ix) and Section
3.16(b), and (v) in the case of a Mortgage Loan required to be purchased
pursuant to Section 2.03, expenses reasonably incurred or to be incurred by the
Servicer, the NIMS Insurer or the Trustee in respect of the breach or defect
giving rise to the purchase obligation including any costs and damages incurred
by the Trust in connection with any violation by such loan of any predatory or
abusive lending law.
"Qualified Substitute Mortgage Loan": A mortgage loan substituted for
a Deleted 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 the Principal Balance of
the Deleted Mortgage Loan as of the Due Date in the calendar month during which
the substitution occurs, (ii) have a Mortgage Rate not less than (and not more
than one percentage point in excess of) the Mortgage Rate of the Deleted
Mortgage Loan, (iii) with respect to any Adjustable- Rate Mortgage Loan, have a
Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the Deleted
Mortgage Loan, (iv) with respect to any Adjustable-Rate Mortgage Loan, have a
Minimum Mortgage Rate not less than the Minimum Mortgage Rate of the Deleted
Mortgage Loan, (v) with respect to any Adjustable-Rate Mortgage Loan, have a
Gross Margin equal to the Gross Margin of the Deleted Mortgage Loan, (vi) with
respect to any Adjustable-Rate Mortgage Loan, have a next Adjustment Date not
more than two months later than the next Adjustment Date on the Deleted Mortgage
Loan, (vii) have a remaining term to maturity not greater than (and not more
than one year less than) that of the Deleted Mortgage Loan, (viii) have the same
Due Date as the Due Date on the Deleted Mortgage Loan, (ix) have a Loan-to-Value
Ratio as of the date of substitution equal to or lower than the Loan-to-Value
Ratio of the Deleted Mortgage Loan as of such date, (x) have a risk grading
determined by the Originator at least equal to the risk grading assigned on the
Deleted Mortgage Loan, (xi) have a Prepayment Charge provision at least equal to
the Prepayment Charge provision in the Deleted Mortgage Loan, (xii) [reserved]
and (xiii) conform to each representation and warranty set forth in Section 6 of
the Mortgage Loan Purchase Agreement applicable to the Deleted Mortgage Loan. In
the event that one or more mortgage loans are substituted for one or more
Deleted Mortgage Loans, the amounts described in clause (i) hereof shall be
determined on the basis of aggregate principal balances, the Mortgage Rates
described in clause (ii) hereof shall be determined on the basis of weighted
average Mortgage Rates, the terms described in clause (vii) hereof shall be
determined on the basis of weighted average remaining term to maturity, the
Loan-to- Value Ratios described in clause (ix) hereof shall be satisfied as to
each such mortgage loan, the risk gradings described in clause (x) 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
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clause (xi) hereof must be satisfied as to each Qualified Substitute Mortgage
Loan or in the aggregate, as the case may be.
"Rating Agency or Rating Agencies": Xxxxx'x and S&P or their
successors. If such agencies or their successors are no longer in existence,
"Rating Agencies" shall be such nationally recognized statistical rating
agencies, or other comparable Persons, designated by the Depositor, notice of
which designation shall be given to the Trustee and the Servicer.
"Realized Loss": With respect to each Mortgage Loan as to which a
Final Recovery Determination has been made, an amount (not less than zero) equal
to (i) the unpaid Principal Balance of such Mortgage Loan as of the commencement
of the calendar month in which the Final Recovery Determination was made, plus
(ii) accrued interest from the Due Date as to which interest was last paid by
the Mortgagor through the end of the calendar month in which such Final Recovery
Determination was made, calculated in the case of each calendar month during
such period (A) at an annual rate equal to the annual rate at which interest was
then accruing on such Mortgage Loan and (B) on a principal amount equal to the
Stated Principal Balance of such Mortgage Loan as of the close of business on
the Distribution Date during such calendar month, plus (iii) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan pursuant to Section 3.11(a)(ix) and Section 3.16(b), minus (iv) the
proceeds, if any, received in respect of such Mortgage Loan during the calendar
month in which such Final Recovery Determination was made, net of amounts that
are payable therefrom to the Servicer with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii).
With respect to any REO Property as to which a Final Recovery
Determination has been made, an amount (not less than zero) equal to (i) the
unpaid principal balance of the related Mortgage Loan as of the date of
acquisition of such REO Property on behalf of REMIC I, plus (ii) accrued
interest from the Due Date as to which interest was last paid by the Mortgagor
in respect of the related Mortgage Loan through the end of the calendar month
immediately preceding the calendar month in which such REO Property was
acquired, calculated in the case of each calendar month during such period (A)
at an annual rate equal to the annual rate at which interest was then accruing
on the related Mortgage Loan and (B) on a principal amount equal to the Stated
Principal Balance of the related Mortgage Loan as of the close of business on
the Distribution Date during such calendar month, plus (iii) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such Final Recovery Determination was made, plus (iv)
any amounts previously withdrawn from the Collection Account in respect of the
related Mortgage Loan pursuant to Section 3.11(a)(ix) and Section 3.16(b), minus
(v) the aggregate of all Advances and Servicing Advances (in the case of
Servicing Advances, without duplication of amounts netted out of the rental
income, Insurance Proceeds and Liquidation Proceeds described in clause (vi)
below) made by the Servicer in respect of such REO Property or the related
Mortgage Loan for which the Servicer has been or, in connection with such Final
Recovery Determination, will be reimbursed pursuant to Section 3.23 out of
rental income, Insurance Proceeds and Liquidation Proceeds received in respect
of such REO Property, minus (vi) the total of all net rental income, Insurance
Proceeds and Liquidation Proceeds received in respect of such REO Property that
has been, or in connection with such Final Recovery Determination, will be
transferred to the Distribution Account pursuant to Section 3.23.
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With respect to each Mortgage Loan which has become the subject of a
Deficient Valuation, the difference between the principal balance of the
Mortgage Loan outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient Valuation.
With respect to each Mortgage Loan which has become the subject of a
Debt Service Reduction, the portion, if any, of the reduction in each affected
Monthly Payment attributable to a reduction in the Mortgage Rate imposed by a
court of competent jurisdiction. Each such Realized Loss shall be deemed to have
been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Distribution Date and any
Book-Entry Certificate (other than the Class MF-6 Certificates), the Business
Day immediately preceding such Distribution Date. With respect to each
Distribution Date and any other Certificates, including the Class MF-6
Certificates and any Definitive Certificates, the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"Reference Banks": Bankers Trust Company, Xxxxxxx'x Bank PLC, The
Tokyo Mitsubishi Bank and National Westminster Bank PLC and their successors in
interest; provided, however, that if any of the foregoing banks are not suitable
to serve as a Reference Bank, then any leading banks selected by the Trustee
(after consultation with the NIMS Insurer) which are engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (i) with an
established place of business in London, (ii) not controlling, under the control
of or under common control with the Depositor or any Affiliate thereof and (iii)
which have been designated as such by the Trustee.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
"Regular Certificate": Any Class A Certificate, Mezzanine Certificate,
Class CE Certificate or Class P Certificate.
"Regular Interest": A "regular interest" in a REMIC within the meaning
of Section 860G(a)(1) of the Code.
"Relief Act": The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
"Relief Act Interest Shortfall": With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended calendar month as a result of the
application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to which a REMIC election is to be made, consisting of: (i) such Mortgage Loans
and Prepayment Charges as from time to time are subject to this Agreement,
together with the Mortgage Files relating thereto, and together with
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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 Mortgage Loan Purchase Agreement (including any
security interest created thereby); (v) the Collection Account (other than any
amounts representing any Servicer Prepayment Charge Payment Amount), the
Distribution Account (other than any amounts representing any Servicer
Prepayment Charge Payment Amount) and any REO 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. Notwithstanding
the foregoing, however, REMIC I specifically excludes the Net WAC Rate Carryover
Reserve Account, the Cap Contract, all payments and other collections of
principal and interest due on the Mortgage Loans on or before the Cut-off Date
and all Prepayment Charges payable in connection with Principal Prepayments made
before the Cut-off Date.
"REMIC I Interest Loss Allocation Amount": With respect to any
Distribution Date, an amount (subject to adjustment based on the actual number
of days elapsed in the respective Accrual Periods for the indicated Regular
Interests for such Distribution Date) equal to (a) the product of (i) 50% of the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) the REMIC I Remittance Rate for REMIC I Regular Interest I-
LTAA minus the Marker Rate, divided by (b) 12.
"REMIC I Marker Allocation Percentage": 50% of any amount payable or
loss attributable from the Mortgage Loans, which shall be allocated to REMIC I
Regular Interest I-LTAA, REMIC I Regular Interest I-LTA1, REMIC I Regular
Interest I-LTA2, REMIC I Regular Interest I- LTA3, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC
I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular
Interest I-LTMV6, REMIC I Regular Interest I-LTMF6, REMIC I Regular Interest
I-LTZZ and REMIC I Regular Interest I-LTP.
"REMIC I Overcollateralized Amount": With respect to any date of
determination, (i) 0.50% of the aggregate Uncertificated Balances of the REMIC I
Regular Interests minus (ii) the aggregate of the Uncertificated Balances of
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest
I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest I-LTMV6 and
REMIC I Regular Interest I-LTMF6, in each case as of such date of determination.
"REMIC I Principal Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to the product of (i) 50% of the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which is two times the
aggregate of the Uncertificated Balances of REMIC I Regular Interest I-LTA1,
REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I
Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTMV6 and REMIC I Regular Interest I-LTMF6
and the denominator of which is the aggregate of the Uncertificated Balances of
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular
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Interest I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC
I Regular Interest I-LTM5, REMIC I Regular Interest I-LTMV6, REMIC I Regular
Interest I-LTMF6 and REMIC I Regular Interest I-LTZZ.
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance 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
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC I Regular Interests are set forth in the Preliminary
Statement hereto.
"REMIC I Regular Interest I-LTAA": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTAA
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTA1": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTA1
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTA2": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTA2
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTA3": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTA3
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM1": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTM1
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in
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the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM2": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTM2
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM3": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTM3
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM4": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTM4
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTM5": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTM5
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTMV6": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTMV6
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTMF6": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTMF6
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTP": One of the separate non-certificated
beneficial
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ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTP shall be entitled to any
Prepayment Charges collected by the Servicer and to a distribution of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTZZ": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTZZ
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LT1SUB": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT1SUB
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LT1GRP": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT1GRP
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LT2SUB": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT2SUB
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LT2GRP": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT2GRP
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LT3SUB": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT3SUB
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
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"REMIC I Regular Interest I-LT3GRP": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT3GRP
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTXX": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTXX
shall accrue interest at the related REMIC I Remittance 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 Balance as set forth in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to REMIC I Regular Interest
I-LTAA, REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC
I Regular Interest I- LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, , REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTMV6, REMIC I Regular Interest I-LTMF6,
REMIC I Regular Interest I-LTZZ, REMIC I Regular Interest I-LTP, REMIC I Regular
Interest I-LT1SUB, REMIC I Regular Interest I-LT2SUB, REMIC I Regular Interest
I-LT3SUB and REMIC I Regular Interest I-LTXX, the weighted average of the
Adjusted Net Mortgage Rates of the Mortgage Loans. With respect to REMIC I
Regular Interest I-LT1GRP, the weighted average of the Adjusted Net Mortgage
Rates of the Group I Mortgage Loans, with respect REMIC I Regular Interest
I-LT2GRP, the weighted average of the Adjusted Net Mortgage Rates of the Group
II Mortgage Loans and with respect REMIC I Regular Interest I-LT3GRP, the
weighted average of the Adjusted Net Mortgage Rates of the Group III Mortgage
Loans.
"REMIC I Subordinated Balance Ratio": The ratio among the
Uncertificated Balances of each REMIC I Regular Interest ending with the
designation "SUB,", equal to the ratio among, with respect to each such REMIC I
Regular Interest, the excess of (x) the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group over (y) the Current Principal
Amount of the Class A Certificates in the related Loan Group.
"REMIC I Sub WAC Allocation Percentage": 50% of any amount payable or
loss attributable from the Mortgage Loans, which shall be allocated to REMIC I
Regular Interest I- LT1SUB, REMIC I Regular Interest I-LT1GRP, REMIC I Regular
Interest I-LT2SUB, REMIC I Regular Interest I-LT2GRP, REMIC I Regular Interest
I-LT3SUB, REMIC I Regular Interest I- LT3GRP and REMIC I Regular Interest
I-LTXX.
"REMIC I Required Overcollateralized Amount": 1.00% of the
Overcollateralization Target Amount.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests conveyed in trust to the Trustee, for the benefit of
the REMIC II Certificateholders pursuant to Section 2.07, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
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"REMIC II Certificate": Any Regular Certificate or Class R
Certificate.
"REMIC II Certificateholder": The Holder of any REMIC II Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of the Code, and related provisions, and proposed, temporary and
final regulations and published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time.
"Remittance Report": A report prepared by the Servicer and delivered
to the Trustee and the NIMS Insurer pursuant to Section 4.03.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code as being
included in the term "rents from real property."
"REO Account": The account or accounts maintained, or caused to be
maintained, by the Servicer in respect of an REO Property pursuant to Section
3.23.
"REO Disposition": The sale or other disposition of an REO Property on
behalf of REMIC I.
"REO Imputed Interest": As to any REO Property, for any calendar month
during which such REO Property was at any time part of REMIC I, one month's
interest at the applicable Net Mortgage Rate on the Stated Principal Balance of
such REO Property (or, in the case of the first such calendar month, of the
related Mortgage Loan, if appropriate) as of the close of business on the
Distribution Date in such calendar month.
"REO Principal Amortization": With respect to any REO Property, for
any calendar month, the excess, if any, of (a) 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 9.01 that is allocable
to such REO Property) or otherwise, net of any portion of such amounts (i)
payable pursuant to Section 3.23(c) in respect of the proper operation,
management and maintenance of such REO Property or (ii) payable or reimbursable
to the Servicer pursuant to Section 3.23(d) 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, over (b) the REO
Imputed Interest in respect of such REO Property for such calendar month.
"REO Property": A Mortgaged Property acquired by the Servicer on
behalf of REMIC I through foreclosure or deed-in-lieu of foreclosure, as
described in Section 3.23.
"Request for Release": A release signed by a Servicing Officer, in the
form of Exhibit E attached hereto.
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"Reserve Interest Rate": With respect to any Interest Determination
Date, the rate per annum that the Trustee determines to be either (i) the
arithmetic mean (rounded upwards if necessary to the nearest whole multiple of
1/16%) of the one-month U.S. dollar lending rates which New York City banks
selected by the Trustee are quoting on the relevant Interest Determination Date
to the principal London offices of leading banks in the London interbank market
or (ii) in the event that the Trustee can determine no such arithmetic mean, the
lowest one-month U.S. dollar lending rate which New York City banks selected by
the Trustee are quoting on such Interest Determination Date to leading European
banks.
"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 Xxxxxx Xxx 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 Certificate": Any one of the Class R Certificates.
"Residual Interest": The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman or
Vice Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the Chairman of the Committee on Trust Matters, any
vice president, any assistant vice president, the Secretary, any assistant
secretary, the Treasurer, any assistant treasurer, the Cashier, any assistant
cashier, any trust officer or assistant trust officer, the Controller and any
assistant controller or any other officer of the Trustee, customarily performing
functions similar to those performed by any of the above designated officers
and, with respect to a particular matter, to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"S&P": Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"Seller": UBS Warburg Real Estate Securities Inc. or its successor in
interest, in its capacity as seller under the Mortgage Loan Purchase Agreement.
"Servicer": Chase Manhattan Mortgage Corporation or any successor
servicer appointed as herein provided, in its capacity as Servicer hereunder.
"Servicer Event of Default": One or more of the events described in
Section 7.01.
"Servicer Prepayment Charge Payment Amount": The amounts payable by
the Servicer in respect of any Prepayment Charges pursuant to Section 2.05 or
Section 3.01.
"Servicer Remittance Date": With respect to any Distribution Date, by
1:00 p.m. New York time the Business Day immediately preceding the related
Distribution Date.
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"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and expenses)
incurred by the Servicer 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, in respect of a particular
Mortgage Loan, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS(R)
System, (iii) the management and liquidation of the REO Property and (iv)
compliance with the obligations under Sections 3.01, 3.09, 3.16, and 3.23.
"Servicing Fee": With respect to each Mortgage Loan 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 or in part
made by the 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. A portion of such Servicing Fee may be retained by any
Sub-Servicer as its servicing compensation.
"Servicing Fee Rate": 0.500% 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": Shall mean the standards set forth in Section
3.01.
"Servicing Transfer Costs": Shall mean all reasonable costs and
expenses incurred by the Trustee in connection with the transfer of servicing
from a predecessor servicer, including, without limitation, any reasonable costs
or expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee to service the Mortgage Loans properly and
effectively.
"Single Certificate": With respect to any Class of Certificates (other
than the Class P Certificates and the Residual Certificates), a hypothetical
Certificate of such Class evidencing a Percentage Interest for such Class
corresponding to an initial Certificate Principal Balance of $1,000. With
respect to the Class P Certificates and the Residual Certificates, a
hypothetical Certificate of such Class evidencing a 100% Percentage Interest in
such Class.
"Startup Day": With respect to each Trust REMIC, the day designated as
such pursuant to Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan: (a) as
of any date of determination up to but not including the Distribution Date on
which the proceeds, if any, of a Liquidation Event with respect to such Mortgage
Loan would be distributed, the Cut-off Date Principal Balance of such Mortgage
Loan, as shown in the Mortgage Loan Schedule, minus the sum
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of (i) the principal portion of each Monthly Payment due on a Due Date
subsequent to the Cut-off Date, to the extent received from the Mortgagor or
advanced by the Servicer and distributed pursuant to Section 4.01 on or before
such date of determination, (ii) all Principal Prepayments received after the
Cut-off Date, to the extent distributed pursuant to Section 4.01 on or before
such date of determination, (iii) all Liquidation Proceeds and Insurance
Proceeds applied by the Servicer as recoveries of principal in accordance with
the provisions of Section 3.16, to the extent distributed pursuant to Section
4.01 on or before such date of determination, and (iv) any Realized Loss
incurred with respect thereto as a result of a Deficient Valuation made during
or prior to the Prepayment Period for the most recent Distribution Date
coinciding with or preceding such date of determination; and (b) as of any date
of determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero. With respect to any REO Property: (a) as of any date
of determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of REMIC I, minus the sum of (i) if such REO Property was
acquired before the Distribution Date in any calendar month, the principal
portion of the Monthly Payment due on the Due Date in the calendar month of
acquisition, to the extent advanced by the Servicer and distributed pursuant to
Section 4.01 on or before such date of determination, and (ii) the aggregate
amount of REO Principal Amortization in respect of such REO Property for all
previously ended calendar months, to the extent distributed pursuant to Section
4.01 on or before such date of determination; and (b) as of any date of
determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such REO Property
would be distributed, zero.
"Stepdown Date": The earlier to occur of (i) the Distribution Date on
which the aggregate Certificate Principal Balance of the Class A Certificates
has been reduced to zero and (ii) the later to occur of (x) the Distribution
Date occurring in June 2006 and (y) the first Distribution Date on which the
Credit Enhancement Percentage (calculated for this purpose only after taking
into account payments of principal on the Mortgage Loans but prior to
distribution of the Group I Principal Distribution Amount and the Group II
Principal Distribution Amount to the Certificates then entitled to distributions
of principal on such Distribution Date) is equal to or greater than 38.00%.
"Sub-Servicer": Any Person with which the Servicer has entered into a
Sub-Servicing Agreement and which meets the qualifications of a Sub-Servicer
pursuant to Section 3.02.
"Sub-Servicing Account": An account established by a Sub-Servicer
which meets the requirements set forth in Section 3.08 and is otherwise
acceptable to the Servicer.
"Sub-Servicing Agreement": The written contract between the Servicer
and a Sub- Servicer relating to servicing and administration of certain Mortgage
Loans as provided in Section 3.02.
"Substitution Adjustment Amount": As defined in Section 2.03(b).
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"Tax Returns": The federal income tax return 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 REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of the Trust Fund due to the classification of portions
thereof as REMICs 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.
"Telerate Page 3750": The display designated as page "3750" on the Dow
Xxxxx Telerate Capital Markets Report (or such other page as may replace page
3750 on that report for the purpose of displaying London interbank offered rates
of major banks).
"Termination Price": As defined in Section 9.01.
"Terminator": As defined in Section 9.01.
"Three Month Rolling Delinquency Percentage": With respect to the
Mortgage Loans and any Distribution Date, the average for the three most recent
calendar months of the fraction, expressed as a percentage, the numerator of
which is (x) the sum (without duplication) of the aggregate of the Principal
Balances of all Mortgage Loans that are (i) 60 or more days Delinquent, (ii) in
bankruptcy and 60 or more days Delinquent, (iii) in foreclosure and 60 or more
days Delinquent or (iv) REO Properties, and the denominator of which is (y) the
sum of the Principal Balances of the Mortgage Loans, in the case of both (x) and
(y), as of the Close of Business on the last Business Day of each of the three
most recent calendar months.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
"Trigger Event": A Trigger Event is in effect with respect to any
Distribution Date on or after the Stepdown Date if:
(a) the Delinquency Percentage exceeds 45.00% of the Credit
Enhancement Percentage; or
(b) the aggregate amount of Realized Losses incurred since the Cut-off
Date through the last day of the related Due Period divided by the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date exceeds the
applicable percentages set forth below with respect to such Distribution Date:
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DISTRIBUTION DATE OCCURRING IN PERCENTAGE
------------------------------ ----------
June 2006 through May 2007 2.75%
June 2007 through May 2008 4.50%
June 2008 through May 2009 5.75%
June 2009 through May 2010 6.50%
June 2010 and thereafter 6.75%
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II,
the Net WAC Rate Carryover Reserve Account, the Cap Contract and the other
assets conveyed by the Depositor to the Trustee pursuant to Section 2.01.
"Trust REMIC": Either REMIC I or REMIC II.
"Trustee": U.S. Bank National Association, a national banking
association, or its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": The amount payable to the Trustee on each Distribution
Date pursuant to Section 8.05 as compensation for all services rendered by it in
the execution of the trust hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder, which amount shall equal
the Trustee Fee Rate accrued for one month on the aggregate Principal Balance of
the Mortgage Loans and any REO Properties as of the second preceding Due Date
(or, in the case of the initial Distribution Date, as of the Cut-off Date),
calculated on the basis of a 360-day year consisting of twelve 30-day months.
"Trustee Fee Rate": 0.200% per annum.
"Uncertificated Balance": The amount of any REMIC I Regular Interest
outstanding as of any date of determination. As of the Closing Date, the
Uncertificated Balance of each REMIC I Regular Interest shall equal the amount
set forth in the Preliminary Statement hereto as its initial uncertificated
balance. On each Distribution Date, the Uncertificated Balance of each REMIC I
Regular Interest shall be reduced by all distributions of principal made on such
REMIC I Regular Interest on such Distribution Date pursuant to Section 4.01 and,
if and to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 4.04. The
Uncertificated Balance of REMIC I Regular Interest I-LTZZ shall be increased by
interest deferrals as provided in Section 4.01(a)(1)(i). The Uncertificated
Balance of each REMIC I Regular Interest shall never be less than zero.
"Uncertificated Interest": With respect to any REMIC I Regular
Interest for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Balance thereof immediately
prior to such Distribution Date. Uncertificated Interest in respect of any REMIC
I Regular Interest shall accrue on the basis of a 360-day year consisting of
twelve 30-day months. Uncertificated Interest with respect to each Distribution
Date, as to any REMIC I Regular Interest, shall be reduced by an amount equal to
the sum of (a) the aggregate Prepayment Interest Shortfall,
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if any, for such Distribution Date to the extent not covered by payments
pursuant to Section 3.24 and (b) the aggregate amount of any Relief Act Interest
Shortfall, if any allocated, in each case, to such REMIC I Regular Interest
pursuant to Section 1.02. In addition, Uncertificated Interest with respect to
each Distribution Date, as to any REMIC I Regular Interest shall be reduced by
Realized Losses, if any, allocated to such REMIC I Regular Interest pursuant to
Section 1.02 and Section 4.04.
"Underwriters' Exemption": As defined in the Prospectus Supplement.
"Uninsured Cause": Any cause of damage to a Mortgaged Property such
that the complete restoration of such property is not fully reimbursable by the
hazard insurance policies required to be maintained pursuant to Section 3.14.
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any state thereof or, District of Columbia (except,
in the case of a partnership, to the extent provided in regulations) provided
that, for purposes solely of the restrictions on the transfer of Class R
Certificates, no partnership or other entity treated as a partnership for United
States federal income tax purposes shall be treated as a United States Person
unless all persons that own an interest in such partnership either directly or
through any entity that is not a corporation for United States federal income
tax purposes are required by the applicable operative agreement to be United
States Persons or an estate whose income is subject to United States federal
income tax regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust. To the extent prescribed in regulations by
the Secretary of the Treasury, which have not yet been issued, a trust which was
in existence on August 20, 1996 (other than a trust treated as owned by the
grantor under subpart E of part I of subchapter J of chapter 1 of the Code), and
which was treated as a United States person on August 20, 1996 may elect to
continue to be treated as a United States person notwithstanding the previous
sentence. The term "United States" shall have the meaning set forth in Section
7701 of the Code.
"Unpaid Interest Shortfall Amount": With respect to the Class A
Certificates and the Mezzanine Certificates and (i) the first Distribution Date,
zero, and (ii) any Distribution Date after the first Distribution Date, the
amount, if any, by which (a) the sum of (1) the Monthly Interest Distributable
Amount for such Class for the immediately preceding Distribution Date and (2)
the outstanding Unpaid Interest Shortfall Amount, if any, for such Class for
such preceding Distribution Date exceeds (b) the aggregate amount distributed on
such Class in respect of interest pursuant to clause (a) of this definition on
such preceding Distribution Date, plus interest on the amount of interest due
but not paid on the Certificates of such Class on such preceding Distribution
Date, to the extent permitted by law, at the Pass-Through Rate for such Class
for the related Accrual Period.
"Value": With respect to any Mortgage Loan, and the related Mortgaged
Property, the lesser of:
(i) the lesser of (a) the value thereof as determined by an appraisal made
for the originator of the Mortgage Loan at the time of origination of
the Mortgage Loan by an appraiser who met the minimum requirements of
Xxxxxx Xxx and Xxxxxxx Mac,
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and (b) the value thereof as determined by a review appraisal
conducted by the Originator in the event any such review appraisal
determines an appraised value more than 10% lower than the value
thereof, in the case of a Mortgaged Loan with a Loan- to-Value Ratio
less than or equal to 80%, or more than 5% lower than the value
thereof, in the case of a Mortgage Loan with a Loan-to-Value Ratio
greater than 80%, as determined by the appraisal referred to in clause
(i)(a) above; and
(ii) the purchase price paid for the related Mortgaged Property by the
Mortgagor with the proceeds of the Mortgage Loan; provided, however,
that in the case of a refinanced Mortgage Loan (which is a Mortgage
Loan the proceeds of which were not used to purchase the related
Mortgaged Property) or a Mortgage Loan originated in connection with a
"lease option purchase" if the "lease option purchase price" was set
12 months or more prior to origination, such value of the Mortgaged
Property is based solely upon clause (i) above..
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. With respect to any date of
determination, 98% of all Voting Rights will be allocated among the holders of
the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates in proportion to the then outstanding Certificate Principal
Balances of their respective Certificates, 1% of all Voting Rights will be
allocated to the holders of the Class P Certificates and 1% of all Voting Rights
will be allocated among the holders of the Residual Certificates. The Voting
Rights allocated to each Class of Certificate shall be allocated among Holders
of each such Class in accordance with their respective Percentage Interests as
of the most recent Record Date.
SECTION 1.02. Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of the Monthly Interest
Distributable Amount for the Class A Certificates, the Mezzanine Certificates
and the Class CE Certificates for any Distribution Date, (1) the aggregate
amount of any Prepayment Interest Shortfalls (to the extent not covered by
payments by the Servicer pursuant to Section 3.24) and any Relief Act Interest
Shortfall incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated first, to the Class CE Certificates based on, and to the
extent of, one month's interest at the then applicable respective Pass-Through
Rate on the respective Notional Amount of each such Certificate and, thereafter,
among the Class A Certificates and the Mezzanine Certificates on a PRO RATA
basis based on, and to the extent of, one month's interest at the then
applicable respective Pass-Through Rate on the respective Certificate Principal
Balance of each such Certificate and (2) the aggregate amount of any Realized
Losses and Net WAC Rate Carryover Amounts incurred for any Distribution Date
shall be allocated to the Class CE Certificates based on, and to the extent of,
one month's interest at the then applicable respective Pass-Through Rate on the
respective Notional Amount of each such Certificate.
For purposes of calculating the amount of Uncertificated Interest for
the REMIC I Regular Interests for any Distribution Date:
(A) The REMIC I Marker Allocation Percentage of the aggregate amount of
any
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Prepayment Interest Shortfalls (to the extent not covered by payments
by the Servicer pursuant to Section 3.24) and the REMIC I 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 Interest
payable to REMIC I Regular Interest I-LTAA and REMIC I Regular
Interest I-LTZZ up to an aggregate amount equal to the REMIC I
Interest Loss Allocation Amount, 98% and 2%, respectively, and
thereafter among REMIC I Regular Interest I-LTA1, REMIC I Regular
Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular Interest I-LTMV6, REMIC I Regular
Interest I- LTMF6 and REMIC I Regular Interest I-LTZZ PRO RATA based
on, and to the extent of, one month's interest at the then applicable
respective Pass-Through Rate on the respective Uncertificated Balance
of each such REMIC I Regular Interest; and
(B) The REMIC I Sub WAC Allocation Percentage of the aggregate amount of
any Prepayment Interest Shortfalls (to the extent not covered by
payments by the Servicer pursuant to Section 3.24) and the REMIC I Sub
WAC 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 Interest
payable to REMIC I Regular Interest I-LT1SUB, REMIC I Regular Interest
I-LT1GRP, REMIC I Regular Interest I-LT2SUB, REMIC I Regular Interest
I- LT2GRP, REMIC I Regular Interest I-LT3SUB, REMIC I Regular Interest
I- LT3GRP and REMIC I Regular Interest I-LTXX, pro rata based on, and
to the extent of, one month's interest at the then applicable
respective Pass-Through Rate on the respective Uncertificated Balance
of each such REMIC I Regular Interest.
SECTION 1.03 Rights of the NIMS Insurer.
Each of the rights of the NIMS Insurer set forth in this Agreement
shall exist so long as (i) the NIMS Insurer has undertaken to guarantee certain
payments of notes issued pursuant to the Indenture and (ii) the notes issued
pursuant to the Indenture remain outstanding or the NIMS Insurer is owed amounts
in respect of its guarantee of payment on such notes; provided, however, the
NIMS Insurer shall not have any rights hereunder (except pursuant to Section
11.01 and any rights to indemnification hereunder in the case of clause (ii)
below) so long as (i) the NIMS Insurer has not undertaken to guarantee certain
payments of notes issued pursuant to the Indenture or (ii) any default has
occurred and is continuing under the insurance policy issued by the NIMS Insurer
with respect to such notes.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of the Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse, for the benefit of the Certificateholders, all the right,
title and interest of the Depositor, including any security interest therein for
the benefit of the Depositor, in and to the Mortgage Loans identified on the
Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan
Purchase Agreement, and all other assets included or to be included in REMIC I.
Such assignment includes all interest and principal received by the Depositor or
the Servicer on or with respect to the Mortgage Loans (other than payments of
principal and interest due on such Mortgage Loans on or before the Cut-off
Date). The Depositor herewith delivers to the Trustee an executed original
Mortgage Loan Purchase Agreement.
In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, the Trustee (or the Custodian on behalf of
the Trustee) the following documents or instruments with respect to each
Mortgage Loan so transferred and assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank or in the following
form: "Pay to the order of U.S. Bank National Association, as Trustee under
the applicable agreement, without recourse," with all prior and intervening
endorsements showing a complete chain of endorsement from the originator to
the Person so endorsing to the Trustee;
(ii) the original Mortgage, noting the presence of the MIN of the
Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan
if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and
the original recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording thereon;
(iii) unless the Mortgage Loan is registered on the MERS(R)System, an
original Assignment in blank;
(iv) the original recorded Assignment or Assignments showing a
complete chain of assignment from the originator to the Person assigning
the Mortgage to the Trustee (or to MERS, if the Mortgage Loan is registered
on the MERS(R) System and noting the presence of the MIN) as contemplated
by the immediately preceding clause (iii);
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy, together with all
endorsements or riders that were issued with or subsequent to the issuance
of such policy, insuring the priority
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of the Mortgage as a first or second lien on the Mortgaged Property
represented therein as a fee interest vested in the Mortgagor, or in the
event such original title policy is unavailable, a written commitment or
uniform binder or preliminary report of title issued by the title insurance
or escrow company.
With respect to a maximum of approximately 2.0% of the Original
Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans
as of the Cut-off Date, if any original Mortgage Note referred to in Section
2.01(i) above cannot be located, the obligations of the Depositor to deliver
such documents shall be deemed to be satisfied upon delivery to the Trustee (or
the Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if
available, with a lost note affidavit substantially in the form of Exhibit I
attached hereto. If any of the original Mortgage Notes for which a lost note
affidavit was delivered to the Trustee (or the Custodian on behalf of the
Trustee) is subsequently located, such original Mortgage Note shall be delivered
to the Trustee (or the Custodian on behalf of the Trustee) within three Business
Days.
Except with respect to any Mortgage Loan for which MERS is identified
on the Mortgage or on a properly recorded assignment of the Mortgage as the
mortgagee of record, the Trustee shall promptly (within sixty Business Days
following the later of the Closing Date and the date of receipt by the Trustee
or the Custodian of the recording information for a Mortgage, but in no event
later than ninety days following the Closing Date) enforce the obligations of
the Originator pursuant to the terms of the Mortgage Loan Purchase Agreement to
submit or cause to be submitted for recording, at no expense to the Trust Fund,
the Trustee, the Custodian or the Depositor, in the appropriate public office
for real property records, each Assignment referred to in Sections 2.01(iii) and
(iv) above and in connection therewith, the Trustee shall enforce the obligation
of the Originator pursuant to the terms of the Mortgage Loan Purchase Agreement
to execute each original Assignment in the following form: "U.S. Bank National
Association, as Trustee under the applicable agreement." In the event that any
such Assignment is lost or returned unrecorded because of a defect therein, the
Trustee shall enforce the obligation of the Originator pursuant to the Mortgage
Loan Purchase Agreement to promptly prepare or cause to be prepared a substitute
Assignment or cure or cause to be cured such defect, as the case may be, and
thereafter cause each such Assignment to be duly recorded.
In connection with the assignment of any Mortgage Loan registered on
the MERS(R) System, the Depositor further agrees that it will cause, within 30
Business Days after the Closing Date, the MERS(R) System to indicate that such
Mortgage Loans have been assigned by the Depositor to the Trustee in accordance
with this Agreement for the benefit of the Certificateholders by including (or
deleting, in the case of Mortgage Loans which are repurchased in accordance with
this Agreement) in such computer files (a) the code in the field which
identifies the specific Trustee and (b) the code in the field "Pool Field" which
identifies the series of the Certificates issued in connection with such
Mortgage Loans. The Depositor further agrees that it will not, and will not
permit the Servicer to, and the Servicer agrees that it will not, alter the
codes referenced in this paragraph with respect to any Mortgage Loan during the
term of this Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
If any of the documents referred to in Sections 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
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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 documents shall be deemed to be satisfied upon (1)
delivery to the Trustee (or the Custodian on behalf of the Trustee) of a copy of
each such document certified by the Originator 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 Originator, delivery to the Trustee (or the Custodian
on behalf of 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. Pursuant to the Mortgage Loan
Purchase Agreement, notice shall be provided to the Trustee and the Rating
Agencies by the Originator if delivery pursuant to clause (2) above will be made
more than 180 days after the Closing Date.
If the original lender's title insurance policy was not delivered
pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be
delivered to the Trustee (or the Custodian on behalf of the Trustee), promptly
after receipt thereof, the original lender's title insurance policy. The
Depositor shall deliver or cause to be delivered to the Trustee (or the
Custodian on behalf of the Trustee) promptly upon receipt thereof any other
original 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.
All original documents relating to the Mortgage Loans that are not
delivered to the Trustee (or the Custodian on behalf of the Trustee) are and
shall be held by or on behalf of the Originator, the Seller, the Depositor or
the Servicer, as the case may be, in trust for the benefit of the Trustee on
behalf of the Certificateholders. In the event that any such original document
is required pursuant to the terms of this Section 2.01 to be a part of a
Mortgage File, such document shall be delivered promptly to the Trustee (or the
Custodian on behalf of the Trustee). Any such original document delivered to or
held by the Depositor that is not required pursuant to the terms of this Section
to be a part of a Mortgage File, shall be delivered promptly to the Servicer.
SECTION 2.02. Acceptance of REMIC I by Trustee.
The Trustee acknowledges receipt (or receipt by the Custodian as the
duly appointed agent of the Trustee), subject to the provisions of Section 2.01
and subject to any exceptions noted on the exception report described in the
next paragraph below, the documents referred to in Section 2.01 (other than such
documents described in Section 2.01(v)) above and all other assets included in
the definition of "REMIC I" under clauses (i), (iii), (iv) and (v) (to the
extent of amounts deposited into the Distribution Account) 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 "REMIC I" in trust for the
exclusive use and benefit of all present and future Certificateholders.
The Trustee (or the Custodian on behalf of the Trustee) agrees to
execute and deliver to the Depositor and the NIMS Insurer on or prior to the
Closing Date an acknowledgment of receipt of the original Mortgage Note (with
any exceptions noted), substantially in the form attached as Exhibit C-3 hereto.
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The Trustee (or the Custodian on behalf of the Trustee) agrees, for
the benefit of the Certificateholders and the NIMS Insurer, to review each
Mortgage File and, within 45 days of the Closing Date, to certify in
substantially the form attached hereto as Exhibit C-1 (or cause the Custodian to
certify in the form of the Initial Certification attached to the Custodial
Agreement) that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(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 constituting part of such Mortgage File (other
than such documents described in Section 2.01(v)) required to be delivered to it
pursuant to this Agreement are in its possession, (ii) such documents have been
reviewed by it or the Custodian and appear regular on their face and relate to
such Mortgage Loan and (iii) based on its or the Custodian's examination and
only as to the foregoing, the information set forth in the Mortgage Loan
Schedule that corresponds to items (1), (3), (12), (15) and (18) of the
definition of "Mortgage Loan Schedule" accurately reflects information set forth
in the Mortgage File. It is herein acknowledged that, in conducting such review,
the Trustee (or the Custodian on behalf of the Trustee) is under no duty or
obligation (i) to inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine, enforceable,
or appropriate for the represented purpose or whether they have actually been
recorded or that they are other than what they purport to be on their face or
(ii) to determine whether any Mortgage File should include any of the documents
specified in clause (v) of Section 2.01.
Prior to the first anniversary date of this Agreement the Trustee
shall deliver to the Depositor, the NIMS Insurer and the Servicer a final
certification in the form annexed hereto as Exhibit C-2 (or shall cause the
Custodian to deliver to the Depositor, the NIMS Insurer and the Servicer a final
certification in the form attached to the Custodial Agreement) evidencing the
completeness of the Mortgage Files, with any applicable exceptions noted
thereon, and the Servicer shall forward a copy thereof to any Sub-Servicer.
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
(or the Custodian on behalf of 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 (or the Custodian
on behalf of the Trustee) shall so notify the Depositor, the NIMS Insurer and
the Servicer. In addition, upon the discovery by the Depositor, the NIMS
Insurer, the Servicer or the Trustee of a breach of any of the representations
and warranties made by the Originator 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 Trustee (or the Custodian on behalf of the Trustee) shall, at the
written request and expense of any Certificateholder, provide a written report
to such Certificateholder of all Mortgage Files released to the Servicer for
servicing purposes.
The Depositor and the Trustee intend that the assignment and transfer
herein contemplated constitute a sale of the Mortgage Loans, the related
Mortgage Notes and the related documents, conveying good title thereto free and
clear of any liens and encumbrances, from the Depositor to the Trustee in trust
for the benefit of the Certificateholders and that such property not
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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 a first
priority perfected security interest in all of the Depositor's right, title and
interest in and to the Mortgage Loans, the related Mortgage Notes 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 notice of any materially defective
document in, or that a document is missing from, a Mortgage File or of the
breach by the Originator or the Seller of any representation, warranty or
covenant under the Mortgage Loan Purchase Agreement (including any
representation, warranty or covenant regarding the Prepayment Charge Schedule)
in respect of any Mortgage Loan that materially adversely affects the value of
such Mortgage Loan or the interest therein of the Certificateholders, the
Trustee shall promptly notify the Originator, the NIMS Insurer, the Seller and
the Servicer of such defect, missing document or breach and request that the
Originator or the Seller, as applicable, deliver such missing document or cure
such defect or breach within 90 days from the date the Originator or the Seller,
as applicable, was notified of such missing document, defect or breach, and if
the Originator or the Seller, as applicable, does not deliver such missing
document or cure such defect or breach in all material respects during such
period, the Trustee shall enforce the obligations of the Originator or the
Seller, as applicable, under the Mortgage Loan Purchase Agreement to repurchase
such Mortgage Loan from REMIC I at the Purchase Price within 90 days after the
date on which the Originator or the Seller, as applicable, was notified (subject
to Section 2.03(c)) of such missing document, defect or breach, if and to the
extent that the Originator or the Seller, as applicable, is obligated to do so
under the Mortgage Loan Purchase Agreement. The Purchase Price for the
repurchased Mortgage Loan shall be remitted to the Servicer for deposit in the
Collection Account and the Trustee (or the Custodian on behalf of the Trustee),
upon receipt of written certification from the Servicer of such deposit, shall
release to the Originator or the Seller, as applicable, the related Mortgage
File and the Trustee (or the Custodian on behalf of the Trustee) 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
applicable, any Mortgage Loan released pursuant hereto. In furtherance of the
foregoing, if the Originator or the Seller, as applicable, is not a member of
MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System,
the Originator or the Seller, as applicable, at its own expense and without any
right of reimbursement, shall cause MERS to execute and deliver an assignment of
the Mortgage in recordable form to transfer the Mortgage from MERS to the
Originator or the Seller, as applicable, and shall cause such Mortgage to be
removed from registration on the MERS(R) System in accordance with MERS' rules
and regulations. Neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File. In lieu of repurchasing any
such Mortgage Loan as provided above, if so provided in the Mortgage Loan
Purchase Agreement, the Originator or the Seller, as applicable, may cause such
Mortgage Loan to be removed from REMIC I (in which case it shall become a
Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage
Loans in the manner and subject to the limitations set forth in Section 2.03(b).
It is understood and agreed that the obligation of the Originator or the Seller,
as applicable, to cure or to
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repurchase (or to substitute for) any Mortgage Loan as to which a document is
missing, a material defect in a constituent document exists or as to which such
a breach has occurred and is continuing shall constitute the sole remedy
respecting such omission, defect or breach available to the Trustee and the
Certificateholders.
(b) Any substitution of Qualified Substitute Mortgage Loans for
Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior
to the date which is two years after the Startup Day for REMIC I.
As to any Deleted Mortgage Loan for which the Originator or the
Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or
Loans, such substitution shall be effected by the Originator or the Seller, as
applicable, delivering to the Trustee (or the Custodian on behalf of the
Trustee), for such Qualified 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 Qualified
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 (or the Custodian on behalf of the Trustee) shall
acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and,
within ten Business Days thereafter, review such documents as specified in
Section 2.02 and deliver to the Depositor, the NIMS Insurer and the Servicer,
with respect to such Qualified Substitute Mortgage Loan or Loans, a
certification substantially in the form attached hereto as Exhibit C-1, with any
applicable exceptions noted thereon. Within one year of the date of
substitution, the Trustee (or the Custodian on behalf of the Trustee) shall
deliver to the Depositor, the NIMS Insurer and the Servicer a certification
substantially in the form of Exhibit C-2 hereto with respect to such Qualified
Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the
month of substitution are not part of REMIC I and will be retained by the
Originator or the Seller, as applicable. For the month of substitution,
distributions to Certificateholders will reflect the Monthly Payment due on such
Deleted Mortgage Loan on or before the Due Date in the month of substitution,
and the Originator or the Seller, as applicable, shall thereafter be entitled to
retain all amounts subsequently received in respect of such Deleted Mortgage
Loan. The Depositor shall give or cause to be given written notice to the
Certificateholders and the NIMS Insurer that such substitution has taken place,
shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted
Mortgage Loan from the terms of this Agreement and the substitution of the
Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such
amended Mortgage Loan Schedule to the Trustee, the Custodian and the NIMS
Insurer. Upon such substitution, such Qualified 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 the Mortgage Loan Purchase
Agreement, including, all applicable representations and warranties thereof
included in the Mortgage Loan Purchase Agreement.
For any month in which the Originator or the Seller, as applicable,
substitutes one or more Qualified Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Servicer will determine the amount (the
"Substitution Adjustment Amount"), if any, by which the aggregate Purchase Price
of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such
Qualified Substitute Mortgage Loan, the Principal Balance thereof as of the date
of substitution,
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together with one month's interest on such Principal Balance at the applicable
Net Mortgage Rate, plus all outstanding Advances and Servicing Advances
(including Nonrecoverable Advances and Nonrecoverable Servicing Advances)
related thereto. On the date of such substitution, the Originator or the Seller,
as applicable, 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 (or the Custodian on behalf of the Trustee), upon
receipt of the related Qualified Substitute Mortgage Loan or Loans and
certification by the Servicer of such deposit, shall release to the Originator
or the Seller, as applicable, the related Mortgage File or Files and the Trustee
(or the Custodian on behalf of the Trustee) shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, the
Originator or the Seller, as applicable, shall deliver to it and as shall be
necessary to vest therein any Deleted Mortgage Loan released pursuant hereto.
In addition, the Originator or the Seller, as applicable, shall obtain
at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of
Counsel to the effect that such substitution will not cause (a) any federal tax
to be imposed on any Trust REMIC, including without limitation, any federal tax
imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code, or
(b) any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(c) Upon discovery by the Depositor, the NIMS Insurer, 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, the Seller or the Depositor shall repurchase or, subject to the
limitations set forth in Section 2.03(b), substitute one or more Qualified
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. Such repurchase or substitution shall be made by (i) the
Originator or the Seller, as the case may be, if the affected Mortgage Loan's
status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Originator or the Seller, as
the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the
Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is
a breach of no representation or warranty. Any such repurchase or substitution
shall be made in the same manner as set forth in Section 2.03(a). The Trustee
(or the Custodian on behalf of the Trustee) shall reconvey to the Depositor, the
Originator or the Seller, as the case may be, 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. Reserved
SECTION 2.05. Representations, Warranties and Covenants of the
Servicer.
The Servicer hereby represents, warrants and covenants to the Trustee,
for the benefit of the Certificateholders and to the Depositor that as of the
Closing Date or as of such date specifically provided herein:
(i) The Servicer is duly organized, validly existing, and in good
standing under
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the laws of the jurisdiction of its formation and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in the states where the Mortgaged Property
is located (or is otherwise exempt under applicable law from such
qualification) 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) and all documents and instruments contemplated
hereby which are executed and delivered by the Servicer and the
consummation of the transactions contemplated hereby have been duly and
validly authorized; this Agreement and all documents and instruments
contemplated hereby which are executed and delivered by the Servicer,
assuming due authorization, execution and delivery by the other parties
hereto, evidences the valid, binding and enforceable obligation of the
Servicer, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally; and all requisite corporate action has been taken by the
Servicer to make this Agreement and all documents and instruments
contemplated hereby which are executed and delivered by the Servicer 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 charter 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 or 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 execution and delivery of this Agreement by the Servicer and
the performance and compliance with its obligations and covenants hereunder
do not require the consent or approval of any governmental authority or, if
such consent or approval is required, it has been obtained;
(iv) [Reserved];
(v) [Reserved];
(vi) 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;
(vii) There is no action, suit, proceeding or investigation pending
or, to its knowledge, threatened against the Servicer that, either
individually or in the aggregate, (A) may result in any change in the
business, operations, financial condition, properties or assets of the
Servicer that might prohibit or materially and adversely affect the
performance by such Servicer of its obligations under, or validity or
enforceability of, this Agreement, or (B) may result in any material
impairment of the right or ability of the Servicer to carry on its business
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substantially as now conducted, or (C) 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 (D) would otherwise be likely to impair materially the ability
of the Servicer to perform under the terms of this Agreement;
(viii) Neither this Agreement 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 any untrue statement of a material fact;
(ix) [Reserved];
(x) [Reserved];
(xi) The Servicer will not waive any Prepayment Charge unless it is
waived in accordance with the standard set forth in Section 3.01;
(xii) The Servicer has accurately and fully reported, and will
continue to accurately and fully report on a monthly basis, its borrower
credit files to each of the credit repositories in a timely manner; and
(xiii) The Servicer is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered
with MERS.
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 or the Custodian and shall inure to the benefit of the
Trustee, the Depositor and the Certificateholders. Upon discovery by any of the
Depositor, the Servicer, the NIMS Insurer 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 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 NIMS Insurer and the Trustee. Subject to Section 7.01, unless such breach
shall not be susceptible of cure within 90 days, the obligation of the Servicer
set forth in this Section 2.05 to cure breaches shall constitute the sole remedy
against the Servicer available to the Certificateholders, the Depositor and the
Trustee on behalf of the Certificateholders respecting a breach of the
representations, warranties and covenants contained in this Section 2.05.
Notwithstanding the foregoing, within 90 days of the earlier of discovery by the
Servicer or receipt of notice by the Servicer of the breach of the covenant of
the Servicer set forth in Section 2.05(xi) above which materially and adversely
affects the interests of the Holders of the Class P Certificates in any
Prepayment Charge, the Servicer shall pay the amount of such waived Prepayment
Charge, for the benefit of the Holders of the Class P Certificates, by
depositing such amount into the Collection Account.
SECTION 2.06. Issuance of the REMIC I Regular Interests and the Class
R-I Interest.
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The Trustee acknowledges the assignment to it of the Mortgage Loans
and the delivery to it, or the Custodian on its behalf, of the Mortgage Files,
subject to the provisions of Section 2.01 and Section 2.02, together with the
assignment to it of all other assets included in REMIC I, the receipt of which
is hereby acknowledged. Concurrently with such assignment and delivery and in
exchange therefor, the Trustee, pursuant to the written request of the Depositor
executed by an officer of the Depositor, has executed, authenticated and
delivered to or upon the order of the Depositor, the Class R-I Interest in
authorized denominations. The interests evidenced by the Class R-I Interest,
together with the REMIC I Regular Interests, constitute the entire beneficial
ownership interest in REMIC I. The rights of the Class R-I Interest and REMIC II
(as holder of the REMIC I Regular Interests) to receive distributions from the
proceeds of REMIC I in respect of the Class R-I Interest and the REMIC I Regular
Interests, respectively, and all ownership interests evidenced or constituted by
the Class R-I Interest and the REMIC I Regular Interests, shall be as set forth
in this Agreement.
SECTION 2.07. Conveyance of the REMIC I Regular Interests; Acceptance
of REMIC II by the Trustee.
The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee,
without recourse all the right, title and interest of the Depositor in and to
the REMIC I Regular Interests for the benefit of the Class R Certificateholders
(as holder of the Class R-I Interest and Class R-II Interest) and REMIC II (as
holder of the REMIC I Regular Interest). The Trustee acknowledges receipt of the
REMIC I Regular Interests and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Class R
Certificateholders (as holder of the Class R-I Interest and Class R-II Interest)
and REMIC II (as holder of the REMIC I Regular Interests). The rights of the
Class R Certificateholders (as holder of the Class R-I Interest and Class R-II
Interest) and REMIC II (as holder of the REMIC I Regular Interest) to receive
distributions from the proceeds of REMIC II in respect of the Class R-II
Interest and the Certificates, respectively, and all ownership interests
evidenced or constituted by the Class R-II Interest and the REMIC I Regular
Interests, shall be as set forth in this Agreement.
SECTION 2.08. Issuance of Class R Certificates.
The Trustee acknowledges the assignment to it of the REMIC I Regular
Interests and, concurrently therewith and in exchange therefor, pursuant to the
written request of the Depositor executed by an officer of the Depositor, the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, the Class R Certificates in authorized denominations. The interests
evidenced by the Class R Certificates, together with the REMIC II Certificates,
constitute the entire beneficial ownership interest in REMIC II.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer.
The Servicer shall service and administer the Mortgage Loans on behalf
of the Trust Fund and in the best interests of and for the benefit of the
Certificateholders (as determined by the Servicer in its reasonable judgment) in
accordance with the terms of this Agreement and the Mortgage Loans and, in the
same manner in which it services and administers similar mortgage loans for its
own portfolio, giving due consideration to customary and usual standards of
practice of mortgage lenders and loan servicers administering similar mortgage
loans but without regard to:
(A) any relationship that the Servicer, any Sub-Servicer or any
Affiliate of the Servicer or any Sub-Servicer may have with the related
Mortgagor;
(B) the ownership or non-ownership of any Certificate by the Servicer
or any Affiliate of the Servicer;
(C) the Servicer's obligation to make Advances or Servicing Advances;
or
(D) the Servicer's or any Sub-Servicer's right to receive compensation
for its services hereunder or with respect to any particular transaction.
To the extent consistent with the foregoing, the Servicer (a) shall
seek the timely and complete recovery of principal and interest on the Mortgage
Notes and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment
Charge only under the following circumstances: (i) such waiver is standard and
customary in servicing similar Mortgage Loans and such waiver relates to a
default or a reasonably foreseeable default and would, in the reasonable
judgment of the Servicer, maximize recovery of total proceeds taking into
account the value of such Prepayment Charge and the related Mortgage Loan or
(ii) the collection of such Prepayment Charge would be in violation of
applicable laws. Subject only to the above-described servicing standards and the
terms of this Agreement and of the Mortgage Loans, the Servicer shall have full
power and authority, acting alone or through Sub-Servicers as provided in
Section 3.02, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, the Servicer in the name of
the Trust Fund is hereby authorized and empowered by the Trustee when the
Servicer believes it appropriate in its best judgment in accordance with the
servicing standards set forth above, to execute and deliver, on behalf of the
Certificateholders and the Trustee, and upon notice to the Trustee, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee and Certificateholders. The Servicer shall service and administer
the Mortgage Loans in accordance with applicable state and federal law and shall
provide to the Mortgagors any reports
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required to be provided to them thereby. The Servicer shall also comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any standard hazard insurance policy. Subject to Section 3.17, the
Trustee shall execute and furnish to the Servicer and any Sub-Servicer any
special or limited powers of attorney for each county in which a Mortgaged
Property is located and other documents necessary or appropriate to enable the
Servicer or any Sub- Servicer to carry out their servicing and administrative
duties hereunder; PROVIDED, such limited powers of attorney or other documents
shall be prepared by the Servicer and submitted to the Trustee for execution.
The Trustee shall not be liable for the actions of the Servicer or any
Sub-Servicers under such powers of attorney.
Subject to Section 3.09 hereof, in accordance with the standards of
the preceding paragraph, the Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
Any cost incurred by the Servicer or by Sub-Servicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not, for the
purpose of calculating distributions to Certificateholders, be added to the
unpaid Principal Balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit.
The Servicer further is authorized and empowered by the Trustee, on
behalf of the Certificateholders and the Trustee, in its own name or in the name
of the Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its reasonable 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 instruments of
assignment 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. Any reasonable expenses incurred in
connection with the actions described in the preceding sentence or as a result
of MERS discontinuing or becoming unable to continue operations in connection
with the MERS(R) System, shall be subject to withdrawal by the Servicer from the
Collection Account.
Notwithstanding anything in this Agreement to the contrary, the
Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.03) and the Servicer shall not (i) permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Rate, reduce or increase the Principal Balance (except for reductions resulting
from actual payments of principal) or change the final maturity date on such
Mortgage Loan (unless, as provided in Section 3.07, the Mortgagor is in default
with respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or
Treasury regulations promulgated thereunder) and (B) cause any REMIC created
hereunder to fail to qualify as a REMIC under the Code or the imposition of any
tax on "prohibited transactions" or "contributions after the startup date" under
the REMIC Provisions.
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SECTION 3.02. Sub-Servicing Agreements Between Servicer and Sub-
Servicers.
(a) The Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers, which may be an Affiliate of the Servicer, for the servicing and
administration of the Mortgage Loans; PROVIDED, HOWEVER, that (i) such
sub-servicing arrangement and the terms of the related Sub- Servicing Agreement
must provide for the servicing of the Mortgage Loans in a manner consistent with
the servicing arrangement contemplated hereunder and (ii) the NIMS Insurer shall
have consented to such Sub-Servicing Agreement. The Trustee is hereby authorized
to acknowledge, at the request of the Servicer, any Sub-Servicing Agreement that
meets the requirements applicable to Sub-Servicing Agreements set forth in this
Agreement and that is otherwise permitted under this Agreement.
Each Sub-Servicer shall be (i) authorized to transact business in the
state or states where the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the Sub- Servicing
Agreement and (ii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Each
Sub- Servicing Agreement must impose on the Sub-Servicer requirements conforming
to the provisions set forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Agreement. The Servicer will
examine each Sub-Servicing Agreement and will be familiar with the terms
thereof. The terms of any Sub-Servicing Agreement will not be inconsistent with
any of the provisions of this Agreement. Any variation in any Sub-Servicing
Agreements from the provisions set forth in Section 3.08 relating to insurance
or priority requirements of Sub-Servicing Accounts, or credits and charges to
the Sub-Servicing Accounts or the timing and amount of remittances by the
Sub-Servicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the NIMS
Insurer and the Trustee copies of all Sub-Servicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(b) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall enforce the
obligations of each Sub-Servicer under the related Sub-Servicing Agreement,
including, without limitation, any obligation to make advances in respect of
delinquent payments as required by a Sub-Servicing Agreement, or to purchase a
Mortgage Loan on account of missing or defective documentation or on account of
a breach of a representation, warranty or covenant, as described in Section
2.03(a). Such enforcement, including, without limitation, the legal prosecution
of claims, termination of Sub-Servicing Agreements, and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Servicer, in its good faith business judgment, would
require were it the owner of the related Mortgage Loans. The Servicer shall pay
the costs of such enforcement at its own expense, and shall be reimbursed
therefor only (i) from a general recovery resulting from such enforcement, to
the extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loans, or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed.
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SECTION 3.03. Successor Sub-Servicers.
The Servicer, with the consent of the NIMS Insurer, shall be entitled
to terminate any Sub-Servicing Agreement and the rights and obligations of any
Sub-Servicer pursuant to any Sub- Servicing Agreement in accordance with the
terms and conditions of such Sub-Servicing Agreement. In the event of
termination of any Sub-Servicer, all servicing obligations of such Sub-Servicer
shall be assumed simultaneously by the Servicer without any act or deed on the
part of such Sub-Servicer or the Servicer, and the Servicer either shall service
directly the related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a successor Sub-Servicer which qualifies under Section 3.02.
Any Sub-Servicing Agreement shall include the provision that such
agreement may be immediately terminated by the Trustee (if the Trustee is acting
as Servicer) without fee, in accordance with the terms of this Agreement, in the
event that the Servicer (or the Trustee, if such party is then acting as
Servicer) shall, for any reason, no longer be the Servicer (including
termination due to a Servicer Event of Termination).
SECTION 3.04. Liability of the Servicer.
Notwithstanding any Sub-Servicing Agreement or the provisions of this
Agreement relating to agreements or arrangements between the Servicer and a
Sub-Servicer or reference to actions taken through a Sub-Servicer or otherwise,
the Servicer shall remain obligated and primarily liable to the Trustee and the
Certificateholders for the servicing and administering of the Mortgage Loans in
accordance with the provisions of Section 3.01 without diminution of such
obligation or liability by virtue of such Sub-Servicing Agreements or
arrangements or by virtue of indemnification from the Sub-Servicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Mortgage Loans. The Servicer shall be
entitled to enter into any agreement with a Sub-Servicer for indemnification of
the Servicer by such Sub- Servicer and nothing contained in this Agreement shall
be deemed to limit or modify such indemnification.
SECTION 3.05. No Contractual Relationship Between Sub-Servicers and
the NIMS Insurer, the Trustee or Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such shall be deemed to be between the Sub-Servicer and the
Servicer alone, and the NIMS Insurer, the Trustee or Certificateholders shall
not be deemed parties thereto and shall have no claims, rights, obligations,
duties or liabilities with respect to the Sub-Servicer except as set forth in
Section 3.06. The Servicer shall be solely liable for all fees owed by it to any
Sub-Servicer, irrespective of whether the Servicer's compensation pursuant to
this Agreement is sufficient to pay such fees.
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements by
Trustee.
In the event the Servicer shall for any reason no longer be the
servicer (including by reason of the occurrence of a Servicer Event of
Termination), the Trustee, in addition to its duties
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under Section 7.02 herein, shall thereupon assume all of the rights and
obligations of the Servicer under each Sub-Servicing Agreement that the Servicer
may have entered into, unless the Trustee elects to terminate any Sub-Servicing
Agreement in accordance with its terms as provided in Section 3.03. Upon such
assumption, the Trustee (or the successor servicer appointed pursuant to Section
7.02) shall be deemed, subject to Section 3.03, to have assumed all of the
departing Servicer's interest therein and to have replaced the departing
Servicer as a party to each Sub-Servicing Agreement to the same extent as if
each Sub-Servicing Agreement had been assigned to the assuming party, except
that (i) the departing Servicer shall not thereby be relieved of any liability
or obligations under any Sub-Servicing Agreement that arose before it ceased to
be the Servicer and (ii) neither the Trustee nor any successor Servicer shall be
deemed to have assumed any liability or obligation of the Servicer that arose
before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of Trustee, deliver to
the assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreements to the assuming party. All Servicing Transfer Costs shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs, and if such predecessor Servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor Servicer or the Trustee (in
which case the successor Servicer or the Trustee, as applicable, shall be
entitled to reimbursement therefor from the assets of the Trust Fund).
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Servicer shall make reasonable efforts in accordance with the
Servicing Standard to collect all payments called for under the terms and
provisions of the Mortgage Loans and the terms and provisions of any applicable
insurance policies. Consistent with the foregoing, the Servicer may in its
discretion (i) waive any late payment charge or, if applicable, any penalty
interest, or (ii) extend the due dates for the Monthly Payments due on a
Mortgage Note for a period of not greater than 180 days; PROVIDED, HOWEVER, that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below; provided further that the NIMS Insurer's prior written
consent shall be required for any modification, waiver or amendment if the
amendment if the aggregate number of outstanding Mortgage Loans which have been
modified, waived or amended exceeds 5% of the number of Mortgage Loans as of the
Cut-off Date. In the event of any such arrangement pursuant to clause (ii)
above, the Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.03 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangement. Notwithstanding the foregoing, in the event that any Mortgage Loan
is in default or, in the judgment of the Servicer, such default is reasonably
foreseeable, the Servicer, consistent with the standards set forth in Section
3.01, may also waive, modify or vary any term 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 Stated
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
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indulgences collectively referred to herein as "forbearance"), PROVIDED,
HOWEVER, that in no event shall the Servicer grant any such forbearance (other
than as permitted by the second sentence of this Section) with respect to any
one Mortgage Loan more than once in any 12 month period or more than three times
over the life of such Mortgage Loan. The Servicer's analysis supporting any
forbearance and the conclusion that any forbearance meets the standards of
Section 3.01 shall be reflected in writing in the Mortgage File.
SECTION 3.08. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage Loan
pursuant to a Sub- Servicing Agreement, the Sub-Servicer will be required to
establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account and shall
comply with all requirements of this Agreement relating to the Collection
Account. The Sub-Servicer shall deposit in the clearing account in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Sub-Servicer's receipt thereof, all
proceeds of Mortgage Loans received by the Sub-Servicer less its servicing
compensation to the extent permitted by the Sub-Servicing Agreement, and shall
thereafter deposit such amounts in the Sub-Servicing Account, in no event more
than two Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Servicer for deposit in the Collection Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
SECTION 3.09. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
To the extent required by the related Mortgage Note, the Servicer
shall establish and maintain, or cause to be established and maintained, one or
more accounts (the "Escrow Accounts"), into which all Escrow Payments shall be
deposited and retained. Escrow Accounts shall be Eligible Accounts. The Servicer
shall deposit in the clearing account in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities, all Escrow Payments collected on account of the Mortgage Loans and
shall deposit such Escrow Payments in the Escrow Accounts, in no event more than
two Business Days after the receipt of such Escrow Payments, all Escrow Payments
collected on account of the Mortgage Loans for the purpose of effecting the
timely payment of any such items as required under the terms of this Agreement.
Withdrawals of amounts from a Escrow Account may be made only to (i) 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); (ii) reimburse the Servicer (or a
Sub-Servicer to the extent provided in the related Sub-Servicing Agreement) out
of related collections for any Servicing Advances made pursuant to Section 3.01
(with respect to taxes and assessments) and Section 3.14 (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Mortgagors
on
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balances in the Escrow Account; or (v) clear and terminate the Escrow Account at
the termination of the Servicer's obligations and responsibilities in respect of
the Mortgage Loans under this Agreement in accordance with Article IX. In the
event the Servicer shall deposit in a Escrow Account any amount not required to
be deposited therein, it may at any time withdraw such amount from such Escrow
Account, any provision herein to the contrary notwithstanding. The Servicer will
be responsible for the administration of the Escrow Accounts and will be
obligated to make Servicing Advances to such accounts when and as necessary to
avoid the lapse of insurance coverage on the Mortgaged Property, or which the
Servicer knows, or in the exercise of the required standard of care of the
Servicer hereunder should know, 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. If any
such payment has not been made and the Servicer receives notice of a tax lien
with respect to the Mortgage being imposed, the Servicer will, within 10
business days of such notice, advance or cause to be advanced funds necessary to
discharge such lien on the Mortgaged Property. As part of its servicing duties,
the Servicer or Sub-Servicers shall pay to the Mortgagors interest on funds in
the Escrow Accounts, to the extent required by law and, to the extent that
interest earned on funds in the Escrow Accounts is insufficient, to pay such
interest from its or their own funds, without any reimbursement therefor. The
Servicer may pay to itself any excess interest on funds in the Escrow Accounts,
to the extent such action is in conformity with the Servicing Standard, is
permitted by law and such amounts are not required to be paid to Mortgagors or
used for any of the other purposes set forth above.
SECTION 3.10. Collection Account and Distribution Account.
(a) On behalf of the Trust Fund, the Servicer shall establish and
maintain, or cause to be established and maintained, one or more accounts (such
account or accounts, the "Collection Account"), held in trust for the benefit of
the Trustee and the Certificateholders. On behalf of the Trust Fund, the
Servicer shall deposit or cause to be deposited in the Collection Account, in no
event more than two Business Days after the Servicer's receipt thereof, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the Mortgage Loans due on or before the
Cut-off Date) or payments (other than Principal Prepayments) received by it on
or prior to the Cut-off Date, but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments (but not Prepayment Charges), on the Mortgage Loans;
(ii) all payments on account of interest (net of the related Servicing
Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds, Liquidation Proceeds and condemnation
proceeds (other than proceeds collected in respect of any particular REO
Property and amounts paid in connection with a purchase of Mortgage Loans
and REO Properties pursuant to Section 9.01);
(iv) any amounts required to be deposited pursuant to Section 3.12 in
connection with any losses realized on Permitted Investments with respect
to funds held in the Collection Account;
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(v) any amounts required to be deposited by the Servicer pursuant to
the second paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with Section 2.03 or Section 9.01;
(vii) all amounts required to be deposited in connection with
Substitution Adjustments pursuant to Section 2.03;
(viii) all Prepayment Charges collected by the Servicer and any
Servicer Prepayment Charge Payment Amounts in connection with the Principal
Prepayment of any of the Mortgage Loans; and
(ix) [reserved].
The foregoing requirements for deposit in the Collection Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of Servicing Fees, late
payment charges, assumption fees, insufficient funds charges and ancillary
income (other than Prepayment Charges) need not be deposited by the Servicer in
the Collection Account and may be retained by the Servicer as additional
compensation. 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.
(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 Trustee and 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 on or before 1:00 p.m. New York time (i) on the Servicer Remittance
Date, that portion of the Available Funds (calculated without regard to the
references in the definition thereof to amounts that may be withdrawn from the
Distribution Account) for the related Distribution Date then on deposit in the
Collection Account, the amount of all Prepayment Charges collected during the
applicable Prepayment Period by the Servicer and Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans then on deposit in the Collection Account and the amount of any
funds reimbursable to an Advancing Person pursuant to Section 3.29.
(c) Funds in the Collection Account and the Distribution Account may
be invested in Permitted Investments in accordance with the provisions set forth
in Section 3.12. The Servicer shall give notice to the NIMS Insurer and 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 NIMS Insurer, the Servicer and the Depositor of the location of the
Distribution Account when established and prior to any change thereof.
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(d) Funds held in the Collection Account at any time may be delivered
by the Servicer to the Trustee for deposit in an account (which may be the
Distribution Account and must satisfy the standards for the Distribution Account
as set forth in the definition thereof) and for all purposes of this Agreement
shall be deemed to be a part of the Collection Account; PROVIDED, HOWEVER, that
the Trustee shall have the sole authority to withdraw any funds held pursuant to
this subsection (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 it any such amount, any provision herein
to the contrary notwithstanding. In addition, the Servicer, with respect to
items (i) through (iv) below, shall deliver to the Trustee from time to time for
deposit, and the Trustee, with respect to items (i) through (iv) below, shall so
deposit, in the Distribution Account:
(i) any Advances, as required pursuant to Section 4.03;
(ii) any amounts required to be deposited pursuant to Section 3.23(d)
or (f) in connection with any REO Property;
(iii) any amounts to be paid in connection with a purchase of Mortgage
Loans and REO Properties pursuant to Section 9.01;
(iv) any Compensating Interest to be deposited pursuant to Section
3.24 in connection with any Prepayment Interest Shortfall; and
(v) any amounts required to be paid to the Trustee pursuant to the
Agreement, including, but not limited to Section 3.06 and Section
7.02.
(e) The Servicer shall deposit in the Collection Account any amounts
required to be deposited pursuant to Section 3.12(b) in connection with losses
realized on Permitted Investments with respect to funds held in the Collection
Account.
SECTION 3.11. Withdrawals from the Collection Account and Distribution
Account.
(a) The Servicer shall, from time to time, make withdrawals from the
Collection Account for any of the following purposes or as described in Section
4.03:
(i) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be so remitted pursuant to Section 3.10(b) or
permitted to be so remitted pursuant to the first sentence of Section
3.10(d);
(ii) subject to Section 3.16(d), to reimburse the Servicer 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 4.03; or (b) any unreimbursed Advances with respect to the final
liquidation of a Mortgage Loan that are Nonrecoverable Advances, but only
to the extent that
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Late Collections, Liquidation Proceeds and Insurance Proceeds received with
respect to such Mortgage Loan are insufficient to reimburse the Servicer
for such unreimbursed Advances;
(iii) subject to Section 3.16(d), to pay the Servicer or any
Sub-Servicer (a) any unpaid Servicing Fees, (b) 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, and (c) 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 or any
Sub-Servicer for Servicing Advances;
(iv) to pay to the Servicer as additional servicing compensation (in
addition to the Servicing Fee) on the Servicer Remittance Date any interest
or investment income earned on funds deposited in the Collection Account;
(v) to pay to the Originator, with respect to each Mortgage Loan that
has previously been purchased or replaced pursuant to Section 2.03 or
Section 3.16(c) all amounts received thereon subsequent to the date of
purchase or substitution, as the case may be;
(vi) to reimburse the Servicer for any Advance or Servicing Advance
previously made which the Servicer has determined to be a Nonrecoverable
Advance in accordance with the provisions of Section 4.03;
(vii) to pay, or to reimburse the Servicer for Servicing Advances in
respect of, expenses incurred in connection with any Mortgage Loan pursuant
to Section 3.16(b);
(viii) to reimburse the Servicer for expenses incurred by or
reimbursable to the Servicer pursuant to Section 6.03(b);
(ix) to reimburse the NIMS Insurer, the Servicer (if the Servicer is
not an Affiliate of the Originator) or the Trustee, as the case may be, for
enforcement expenses reasonably incurred in respect of the breach or defect
giving rise to the purchase obligation under Section 2.03 of this Agreement
that were included in the Purchase Price of the Mortgage Loan, including
any expenses arising out of the enforcement of the purchase obligation;
(x) to pay itself any Prepayment Interest Excess; and
(xi) to clear and terminate the Collection Account pursuant to Section
9.01.
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.
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The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (ii), (iii), (iv), (v), (vi), (vii) and (viii) above.
The Servicer shall provide written notification to the NIMS Insurer and the
Trustee, on or prior to the next succeeding Servicer Remittance Date, upon
making any withdrawals from the Collection Account pursuant to subclause (vi)
above; PROVIDED that an Officers' Certificate in the form described under
Section 4.03(d) shall suffice for such written notification to the Trustee in
respect hereof.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without priority:
(i) to make distributions in accordance with Section 4.01;
(ii) to pay itself the Trustee Fee and any Extraordinary Trust Fund
Expenses pursuant to Section 8.05;
(iii) to pay any amounts in respect of taxes pursuant to Section
10.01(g);
(iv) to clear and terminate the Distribution Account pursuant to
Section 9.01;
(v) to pay any amounts required to be paid to the Trustee pursuant to
this Agreement, including but not limited to funds required to be paid
pursuant to Section 3.06 and Section 7.02;
(vi) to pay to the Trustee, any interest or investment income earned
on funds deposited in the Distribution Account;
(vii) to pay to an Advancing Person reimbursements for Advances and/or
Servicing Advances pursuant to Section 3.29; and
(viii) [reserved].
The foregoing requirements for withdrawal from the Distribution
Account shall be exclusive. In the event the Trustee shall deposit in the
Distribution Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Distribution Account, any provision
herein to the contrary notwithstanding.
SECTION 3.12. Investment of Funds in the Collection Account and the
Distribution Account.
(a) The Servicer may direct any depository institution maintaining the
Collection Account and any REO Account to invest the funds on deposit in such
accounts, and the Trustee may invest the funds on deposit in the Distribution
Account (each such account, for the purposes of this Section 3.12 an "Investment
Account"). All investments pursuant to this Section 3.12 shall be in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless
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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 or
if such investment is managed or advised by a Person other than the Trustee or
an Affiliate of the Trustee, 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 or any Affiliate. All such Permitted Investments shall be held to
maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee (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 or any REO Account and any income and gain realized thereon)
over each such investment, 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 an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Trustee shall:
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted 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 Permitted
Investment would not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and any REO Account held by or on behalf of
the Servicer shall be for the benefit of the Servicer and shall be subject to
its withdrawal in accordance with Section 3.11 or Section 3.23, as applicable.
The Servicer shall deposit in the Collection Account or any REO Account, as
applicable, the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such account immediately upon
realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account shall be for the benefit of the Trustee.
The Trustee shall deposit in the Distribution Account the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.01 and Section 8.02(a)(v),
upon the request of the NIMS Insurer or 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 3.13. [Reserved].
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SECTION 3.14. Maintenance of Hazard Insurance and Errors and Omissions
and Fidelity Coverage.
(a) The Servicer shall cause to be maintained for each Mortgage Loan
hazard insurance with extended coverage on the Mortgaged Property in an amount
which is at least equal to the lesser of (i) the current Principal Balance of
such Mortgage Loan and (ii) the amount necessary to fully compensate for any
damage or loss to the improvements that are a part of such property on a
replacement cost basis, in each case in an amount not less than such amount as
is necessary to avoid the application of any coinsurance clause contained in the
related hazard insurance policy. The Servicer shall also cause to be maintained
hazard insurance with extended coverage on each REO Property in an amount which
is at least equal to the lesser of (i) the maximum insurable value of the
improvements which are a part of such property and (ii) the outstanding
Principal Balance of the related Mortgage Loan at the time it became an REO
Property. The Servicer will comply in the performance of this Agreement with all
reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by the Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor in
accordance with the procedures that the Servicer would follow in servicing loans
held for its own account, subject to the terms and conditions of the related
Mortgage and Mortgage Note) shall be deposited in the Collection Account,
subject to withdrawal pursuant to Section 3.11, if received in respect of a
Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to Section
3.23, if received in respect of an REO Property. Any cost incurred by the
Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
Principal Balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. Such costs shall be recoverable by the Servicer
out of late payments by the related mortgagor or out of Liquidation Proceeds,
but only to the extent that all amounts owed to the Holders, the Trustee and the
Trust Fund have been remitted by the Servicer. It is understood and agreed that
no earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. If the Mortgaged
Property or REO Property is at any time in an area identified in the Federal
Register by the Federal 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 in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the unpaid Principal Balance of
the related Mortgage Loan and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
In the event that the Servicer shall obtain and maintain a blanket
policy insuring against hazard losses on all of the Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first two sentences of this Section 3.14, it being understood and agreed that
such policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by competent servicers, 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 the
first two sentences of this Section 3.14, and there shall have been one or more
losses which would have been covered by such policy, deposit to the Collection
Account from its own funds the amount not otherwise payable under the blanket
policy because of
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such deductible clause. In connection with its activities as servicer of the
Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself,
the Depositor, the Trustee and Certificateholders, claims under any such blanket
policy in a timely fashion in accordance with the terms of such policy.
(b) The Servicer shall keep in force during the term of this Agreement
a policy or policies of insurance covering errors and omissions for failure in
the performance of the Servicer's obligations under this Agreement, which policy
or policies shall be in such form and amount that would meet the requirements of
Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall provide the Trustee and the NIMS Insurer, upon
request, with copies of such insurance policies and fidelity bond. The Servicer
shall also maintain a fidelity bond in the form and amount that would meet the
requirements of Xxxxxx Xxx or Xxxxxxx Mac, unless the Servicer has obtained a
waiver of such requirements from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall
be deemed to have complied with this provision if an Affiliate of the Servicer
has such errors and omissions and fidelity bond coverage and, by the terms of
such insurance policy or fidelity bond, the coverage afforded thereunder extends
to the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days' prior written notice to the
Trustee and the NIMS Insurer. The Servicer shall also cause each Sub-Servicer to
maintain a policy of insurance covering errors and omissions and a fidelity bond
which would meet such requirements.
SECTION 3.15. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
The Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; PROVIDED, HOWEVER, that the
Servicer shall not be required to take such action if in its sole business
judgment the Servicer believes it is not in the best interests of the Trust Fund
and shall not exercise any such rights if prohibited by law from doing so. If
the Servicer reasonably believes it is unable under applicable law to enforce
such "due- on-sale" clause, or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
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 the Mortgagor and becomes liable under the Mortgage
Note, provided that no such substitution shall be effective unless such person
satisfies the then current underwriting criteria of the Servicer for mortgage
loans similar to the Mortgage Loans. In connection with any assumption or
substitution, the Servicer shall apply such underwriting standards and follow
such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. The Servicer shall not take or enter into any assumption and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
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effectiveness of any applicable hazard insurance policy. Any fee collected by
the Servicer in respect of an assumption, modification or substitution of
liability agreement shall be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Rate and the
amount of the Monthly Payment) may be amended or modified, except as otherwise
required pursuant to the terms thereof. The Servicer shall notify the Trustee
and the Custodian that any such substitution, modification or assumption
agreement has been completed by forwarding to the Custodian the executed
original of such substitution, modification or assumption agreement, which
document shall be added to the related Mortgage File and 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.
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 by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatever. For purposes of this Section 3.15, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
SECTION 3.16. Realization Upon Defaulted Mortgage Loans.
(a) The Servicer shall use its reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments pursuant to Section 3.07. The Servicer shall
be responsible for all costs and expenses incurred by it in any such
proceedings; PROVIDED, HOWEVER, that such costs and expenses will be recoverable
as Servicing Advances by the Servicer as contemplated in Section 3.11 and
Section 3.23. The foregoing is subject to the provision that, in any case in
which a Mortgaged Property shall have suffered damage from an Uninsured Cause,
the Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion that
such restoration will increase the proceeds of liquidation of the related
Mortgage Loan after reimbursement to itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section 3.16 or
any other provision of this Agreement, 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, on behalf of the Trustee, 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 Trustee, the Trust Fund or the Certificateholders 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 report prepared by a Person
who regularly conducts environmental audits using customary industry standards,
that:
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(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to bring
the Mortgaged Property into compliance therewith; and
(2) 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, 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
Trust Fund to take such actions with respect to the affected Mortgaged
Property.
Notwithstanding the foregoing, if such environmental audit reveals, or
if the Servicer has actual knowledge or notice, that such Mortgaged Property
contains such wastes or substances, the Servicer shall not foreclose or accept a
deed in lieu of foreclosure without the prior written consent of the NIMS
Insurer.
The cost of the environmental audit report contemplated by this
Section 3.16 shall be advanced by the Servicer, subject to the Servicer's right
to be reimbursed therefor from the Collection Account as provided in Section
3.11(a)(vii), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Collection Account received in
respect of the affected Mortgage Loan or other Mortgage Loans.
If the Servicer determines, as described above, that it is in the best
economic interest of the Trust Fund 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 Trust Fund; PROVIDED that any amounts disbursed by the Servicer pursuant
to this Section 3.16(b) shall constitute Servicing Advances, subject to Section
4.03(d). The cost of any such compliance, containment, cleanup 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
3.11(a)(iii) and (a)(vii), such right of reimbursement being prior to the rights
of Certificateholders to receive any amount in the Collection Account received
in respect of the affected Mortgage Loan or other Mortgage Loans.
(c) The Servicer or the NIMS Insurer may, at the option of each,
purchase a Mortgage Loan which has become 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(c)(i), the Servicer shall be required to continue
to make Advances pursuant to Section 4.03. The Servicer or the NIMS Insurer
shall not use any procedure in selecting Mortgage Loans to be repurchased which
is materially adverse to the interests of the Certificateholders. The Servicer
or the NIMS Insurer shall purchase such delinquent Mortgage Loan at a price
equal to the Purchase Price of such Mortgage Loan. Any such purchase of a
Mortgage Loan pursuant to this Section 3.16(c)(i) shall be accomplished, by
remittance to the Servicer for deposit in the Collection Account of the amount
of the Purchase Price. Notwithstanding the foregoing, the Servicer shall
purchase Mortgage Loans that
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are delinquent the greatest number of days before it may purchase any that are
delinquent any fewer number of days. The Trustee shall immediately effectuate
the conveyance of such delinquent Mortgage Loan to the Servicer or the NIMS
Insurer, as applicable, to the extent necessary to vest in the Servicer or the
NIMS Insurer, as applicable, title to such Mortgage Loan, including the prompt
delivery of all documentation to the Servicer or the NIMS Insurer, as
applicable.
(d) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds, Liquidation Proceeds or condemnation proceeds, in respect of
any Mortgage Loan, will be applied in the following order of priority: FIRST, to
unpaid Servicing Fees; SECOND, to reimburse the Servicer or any Sub-Servicer for
any related unreimbursed Servicing Advances pursuant to Section 3.11(a)(iii) and
Advances pursuant to Section 3.11(a)(ii); THIRD, to accrued and unpaid interest
on the Mortgage Loan, to the date of the Final Recovery Determination, or to the
Due Date prior to the Distribution Date on which such amounts are to be
distributed if not in connection with a Final Recovery Determination; and
FOURTH, as a recovery of principal of the Mortgage Loan. The portion of the
recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
Servicer or any Sub-Servicer pursuant to Section 3.11(a)(iii).
SECTION 3.17. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Servicer will immediately notify or
cause to be notified the Custodian by a certification and shall deliver to the
Custodian, in written or electronic format, a Request for Release in the form of
Exhibit E (which certification shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Collection Account pursuant to Section 3.10 have
been or will be so deposited) signed by a Servicing Officer (or in a mutually
agreeable electronic format that will, in lieu of a signature on its face,
originate from a Servicing Officer) and shall request delivery to it of the
Mortgage File. Upon receipt of such certification and request and pursuant to
the terms of the Custodial Agreement, the Custodian shall, within three Business
Days, release and send by overnight mail, at the expense of the Servicer, or, at
the expense of the related mortgagor, the related Mortgage File to the Servicer
and the Servicer is authorized to cause the removal from the registration on the
MERS(R) System of any such Mortgage, if applicable, and to execute and deliver,
on behalf of the Trustee and the Certificateholders or any of them, any and all
instruments of satisfaction or cancellation or of partial or full release. The
Trustee agrees to indemnify the Servicer, out of its own funds, for any loss,
liability or expense (other than special, indirect, punitive or consequential
damages which will not be paid by the Trustee) incurred by the Servicer as a
proximate result of the Trustee's breach of its obligations pursuant to this
Section 3.17. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account or the Distribution Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Custodian, pursuant to
the terms of the Custodial Agreement, shall, upon any request made by or on
behalf of the Servicer and delivery to the Custodian, in written (with two
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executed copies) or electronic format, of a Request for Release in the form of
Exhibit E signed by a Servicing Officer (or in a mutually agreeable electronic
format that will, in lieu of a signature on its face, originate from a Servicing
Officer), release the related Mortgage File to the Servicer within three
Business Days, and the Custodian shall, at the direction of the Servicer,
execute such documents as shall be necessary to the prosecution of any such
proceedings. Such Request for Release shall obligate the Servicer to return each
and every document previously requested from the Mortgage File to the Custodian
when the need therefor by the Servicer no longer exists, unless the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the Collection Account or the Mortgage File or such
document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing legal
action or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Servicer has delivered, or caused to be
delivered, to the Custodian an additional Request for Release certifying as to
such liquidation or action or proceedings. Upon the request of the Trustee, the
Servicer shall provide notice to the Trustee of the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a Request for Release, in
written (with two executed copies) or electronic format, from a Servicing
Officer stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation that are required
to be deposited into the Collection Account have been so deposited, or that such
Mortgage Loan has become an REO Property, such Mortgage Loan shall be released
by the Custodian to the Servicer or its designee.
(c) Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the Servicer or the Sub-Servicer, as the case may
be, copies of, any court pleadings, requests for trustee's sale or other
documents necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency judgment,
or to enforce any other remedies or rights provided by the Mortgage Note or
Mortgage or otherwise available at law or in equity. Each such certification
shall include a request that such pleadings or documents be executed by the
Trustee and a statement as to the reason such documents or pleadings are
required and that the execution and delivery thereof by the Trustee will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.18. Servicing Compensation.
As compensation for its activities hereunder, the Servicer shall be
entitled to the Servicing Fee with respect to each Mortgage Loan payable solely
from payments of interest in respect of such Mortgage Loan, subject to Section
3.24. In addition, the Servicer shall be entitled to recover unpaid Servicing
Fees out of Insurance Proceeds, Liquidation Proceeds or condemnation proceeds to
the extent permitted by Section 3.11(a)(iii) and out of amounts derived from the
operation and sale of an REO Property to the extent permitted by Section 3.23.
Except as provided in Section 3.29, 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;
PROVIDED, HOWEVER, that the Servicer may pay from the Servicing Fee any amounts
due to a Sub-Servicer pursuant to a Sub-Servicing Agreement entered into under
Section 3.02.
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Additional servicing compensation in the form of assumption fees, late
payment charges, insufficient funds charges, ancillary income or otherwise
(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 3.11(a)(iv) to withdraw from the Collection
Account and pursuant to Section 3.23(b) to withdraw from any REO Account, as
additional servicing compensation, interest or other income earned on deposits
therein, subject to Section 3.12 and Section 3.24. The Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder (including premiums for the insurance required by Section
3.14, to the extent such premiums are not paid by the related Mortgagors or by a
Sub-Servicer and servicing compensation of each Sub-Servicer) and shall not be
entitled to reimbursement therefor except as specifically provided herein.
The Servicer shall be entitled to any Prepayment Interest Excess,
which it may withdraw from the Collection Account pursuant to Section
3.11(a)(ix).
SECTION 3.19. Reports to the Trustee; Collection Account Statements.
Not later than twenty days after each Distribution Date, the Servicer
shall forward to the Trustee, the NIMS Insurer and the Depositor the most
current available bank statement for the Collection Account. Copies of such
statement shall be provided by the Trustee to any Certificateholder and to any
Person identified to the Trustee as a prospective transferee of a Certificate,
upon request at the expense of the requesting party, provided such statement is
delivered by the Servicer to the Trustee.
SECTION 3.20. Statement as to Compliance.
The Servicer will deliver to the Trustee, the NIMS Insurer and the
Depositor not later than March 1st of each calendar year, commencing in 2004, an
Officers' Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Servicer during the preceding 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 of its obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. Copies of any such statement shall be provided by the Trustee to any
Certificateholder and to any Person identified to the Trustee as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party, provided such statement is delivered by the Servicer to the Trustee.
SECTION 3.21. Independent Public Accountants' Servicing Report.
Not later than March 1st 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 Servicer a report
stating that (i) it has obtained a letter of representation regarding certain
matters from the management of the Servicer which includes an assertion that the
Servicer has complied with certain minimum residential mortgage loan servicing
standards, identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers
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Association of America, 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. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within one year of such report)
with respect to those Sub-Servicers. Immediately upon receipt of such report,
the Servicer shall furnish a copy of such report to the Trustee, the NIMS
Insurer and each Rating Agency. 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.
SECTION 3.22. Access to Certain Documentation.
The Servicer shall provide to the Office of Thrift Supervision, the
FDIC, and any other federal or state banking or insurance regulatory authority
that may exercise authority over any Certificateholder, access to the
documentation regarding the Mortgage Loans required by applicable laws and
regulations. Such access shall be afforded without charge, but only upon
reasonable request and during normal business hours at the offices of the
Servicer designated by it. In addition, access to the documentation regarding
the Mortgage Loans will be provided to any Certificateholder, the Trustee, the
NIMS Insurer and to any Person identified to the Servicer as a prospective
transferee of a Certificate, upon reasonable request during normal business
hours at the offices of the Servicer designated by it at the expense of the
Person requesting such access.
SECTION 3.23. Title, Management and Disposition of REO Property.
(a) The deed or certificate of sale of any REO Property shall be taken
in the name of the Trustee, or its nominee, in trust for the benefit of the
Certificateholders. The Servicer, on behalf of REMIC I, shall sell any REO
Property as soon as practical and in any event no later than the end of the
third full taxable year after the taxable year in which such REMIC acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code or
request from the Internal Revenue Service, no later than 60 days before the day
on which the three-year grace period would otherwise expire, an extension of
such three-year period, unless the Servicer shall have delivered to the Trustee
and the NIMS Insurer an Opinion of Counsel acceptable to the NIMS Insurer and
addressed to the Trustee, the NIMS Insurer and the Depositor, to the effect that
the holding by the REMIC of such REO Property subsequent to three years after
its acquisition will not result in the imposition on the REMIC of taxes on
"prohibited transactions" thereof, as defined in Section 860F of the Code, or
cause any of the REMICs created hereunder to fail to qualify as a REMIC under
Federal law at any time that any Certificates are outstanding. The Servicer
shall manage, conserve, protect and operate each REO Property for the
Certificateholders 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 any of the REMICs created hereunder 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.
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(b) The Servicer shall separately account for all funds collected and
received in connection with the operation of any REO Property and shall
establish and maintain, or cause to be established and maintained, with respect
to REO Properties an account held in trust for the Trustee for the benefit of
the Certificateholders (the "REO Account"), which shall be an Eligible Account.
The Servicer shall be permitted to allow the Collection Account to serve as the
REO Account, subject to separate ledgers for each REO Property. The Servicer
shall be entitled to retain or withdraw any interest income paid on funds
deposited in the REO Account.
(c) The Servicer shall have full power and authority, subject only to
the specific requirements and prohibitions of this Agreement, to do any and all
things in connection with any REO Property as are consistent with the manner in
which the Servicer manages and operates similar property owned by the Servicer
or any of its Affiliates, all on such terms and for such period (subject to the
requirement of prompt disposition set forth in Section 3.23(a)) as the Servicer
deems to be in the best interests of Certificateholders. In connection
therewith, the Servicer shall deposit, or cause to be deposited in the REO
Account, in no event more than two Business Days after the Servicer's receipt
thereof, all revenues received by it with respect to an REO Property and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of such REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO Property.
To the extent that amounts on deposit in the REO Account with respect
to an REO Property are insufficient for the purposes set forth in clauses (i)
through (iii) above with respect to such REO Property, the Servicer shall
advance from its own funds such amount as is necessary for such purposes if, but
only if, the Servicer would make such advances if the Servicer owned the REO
Property and if in the Servicer's judgment, the payment of such amounts will be
recoverable from the rental or sale of the REO Property.
Notwithstanding the foregoing, neither the Servicer nor the Trustee
shall:
(A) authorize the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(B) authorize any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(C) authorize any construction on any REO Property, other than the
completion of a building or other improvement thereon, and then only if
more than ten percent of the construction of such building or other
improvement was completed before default on the
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related Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(D) authorize any Person to Directly Operate any REO Property on any
date more than 90 days after its date of acquisition by the Trust Fund;
unless, in any such case, the Servicer has obtained an Opinion of Counsel,
provided to the Trustee and the NIMS Insurer, to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code at any time that it is held
by the REMIC, in which case the Servicer may take such actions as are specified
in such Opinion of Counsel.
The Servicer may contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(1) the terms and conditions of any such contract shall not be
inconsistent herewith;
(2) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above and remit all related revenues (net
of such costs and expenses) to the Servicer as soon as practicable, but in
no event later than thirty days following the receipt thereof by such
Independent Contractor;
(3) none of the provisions of this Section 3.23(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Servicer of any of its duties and
obligations to the Trustee on behalf of the Certificateholders with respect
to the operation and management of any such REO Property; and
(4) the Servicer shall be obligated with respect thereto to the same
extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Servicer by such Independent
Contractor, and nothing in this Agreement shall be deemed to limit or modify
such indemnification. The Servicer shall be solely liable for all fees owed by
it to any such Independent Contractor, irrespective of whether the Servicer's
compensation pursuant to Section 3.18 is sufficient to pay such fees; PROVIDED,
HOWEVER, that to the extent that any payments made by such Independent
Contractor would constitute Servicing Advances if made by the Servicer, such
amounts shall be reimbursable as Servicing Advances made by the Servicer.
(d) In addition to the withdrawals permitted under Section 3.23(c),
the Servicer may from time to time make withdrawals from the REO Account for any
REO Property: (i) to pay itself or any Sub-Servicer unpaid Servicing Fees in
respect of the related Mortgage Loan; and (ii) to reimburse itself or any
Sub-Servicer for unreimbursed Servicing Advances and Advances made in
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respect of such REO Property or the related Mortgage Loan. On the Servicer
Remittance Date, the Servicer shall withdraw from each REO Account maintained by
it and deposit into the Distribution Account in accordance with Section
3.10(d)(ii), for distribution on the related Distribution Date in accordance
with Section 4.01, the income from the related REO Property received during the
prior calendar month, net of any withdrawals made pursuant to Section 3.23(c) or
this Section 3.23(d).
(e) Subject to the time constraints set forth in Section 3.23(a), each
REO Disposition shall be carried out by the Servicer in a manner, at such price
and upon such terms and conditions as shall be normal and usual in its Servicing
Standard.
(f) The proceeds from the REO Disposition, net of any amount required
by law to be remitted to the Mortgagor under the related Mortgage Loan and net
of any payment or reimbursement to the Servicer or any Sub-Servicer as provided
above, shall be deposited in the Distribution Account in accordance with Section
3.10(d)(ii) on the Servicer Remittance Date in the month following the receipt
thereof for distribution on the related Distribution Date in accordance with
Section 4.01. 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).
(g) The Servicer shall file information returns with respect to the
receipt of mortgage interest received in a trade or business, reports of
foreclosures and abandonments of any Mortgaged Property and cancellation of
indebtedness income with respect to any Mortgaged Property as required by the
Code. Such reports shall be in form and substance sufficient to meet the
reporting requirements of the Code.
SECTION 3.24. Obligations of the Servicer in Respect of Prepayment
Interest Shortfalls.
Not later than 1:00 p.m. New York time on each Servicer Remittance
Date, the Servicer shall remit to the Distribution Account an amount
("Compensating Interest") equal to the lesser of (A) the aggregate of the
Prepayment Interest Shortfalls for the related Distribution Date and (B) its
aggregate Servicing Fee received in the related Due Period. 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 3.25. [Reserved].
SECTION 3.26. Obligations of the Servicer in Respect of Mortgage Rates
and Monthly Payments.
In the event that a shortfall in any collection on or liability with
respect to the Mortgage Loans in the aggregate results from or is attributable
to adjustments to Mortgage Rates, Monthly Payments or Stated Principal Balances
that were made by the Servicer in a manner not consistent with the terms of the
related Mortgage Note and this Agreement, the Servicer, upon discovery or
receipt of notice thereof, immediately shall deposit in the Collection Account
from its
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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 3.26
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 3.27. [Reserved].
SECTION 3.28. [Reserved].
SECTION 3.29. Advance Facility.
(a) The Servicer and/or the Trustee on behalf of the Trust Fund, in
either case, with the consent of the NIMS Insurer and the Servicer in the case
of the Trustee, is hereby authorized to enter into a facility with any Person
which provides that such Person (an "Advancing Person") may fund Advances and/or
Servicing Advances to the Trust Fund under this Agreement, although no such
facility shall reduce or otherwise affect the Servicer's obligation to fund such
Advances and/or Servicing Advances. If the Servicer enters into such an Advance
Facility pursuant to this Section 3.29, upon reasonable request of the Advancing
Person, the Trustee shall execute a letter of acknowledgment, confirming its
receipt of notice of the existence of such Advance Facility. To the extent that
an Advancing Person funds any Advance or any Servicing Advance and provides the
Trustee with notice acknowledged by the Servicer that such Advancing Person is
entitled to reimbursement, such Advancing Person shall be entitled to receive
reimbursement pursuant to this Agreement for such amount to the extent provided
in Section 3.29(b). Such notice from the Advancing Person must specify the
amount of the reimbursement, the Section of this Agreement that permits the
applicable Advance or Servicing Advance to be reimbursed and the section(s) of
the Advance Facility that entitle the Advancing Person to request reimbursement
from the Trustee, rather than the Servicer, and include the Servicer's
acknowledgment thereto or proof of an Event of Default under the Advance
Facility. The Trustee shall have no duty or liability with respect to any
calculation of any reimbursement to be paid to an Advancing Person and shall be
entitled to rely without independent investigation on the Advancing Person's
notice provided pursuant to this Section 3.29. An Advancing Person whose
obligations hereunder are limited to the funding of Advances and/or Servicing
Advances shall not be required to meet the qualifications of a Servicer or a
Sub-Servicer pursuant to Section 6.06 hereof and will not be deemed to be a
Sub-Servicer under this Agreement. If the terms of a facility proposed to be
entered into with an Advancing Person by the Trust Fund would not materially and
adversely affect the interests of any Certificateholder, then the NIMS Insurer
shall not withhold its consent to the Trust Fund's entering such facility.
(b) If an Advancing Facility is entered into, then the Servicer shall
not be permitted to reimburse itself therefor under Section 3.11(a)(ii), Section
3.11(a)(iii), Section 3.11(a)(iv), Section 3.11(a)(vii), Section 3.11(a)(viii)
and Section 4.04(b) prior to the remittance to the Trust Fund, but instead the
Servicer shall include such amounts in the applicable remittance to the Trustee
made pursuant to Section 3.10(a). The Trustee is hereby authorized to pay to the
Advancing Person, reimbursements for Advances and Servicing Advances from the
Distribution Account to the same extent the Servicer would have been permitted
to reimburse itself for such
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Advances and/or Servicing Advances in accordance with Section 3.11(a)(ii),
Section 3.11(a)(iii), Section 3.11(a)(vi), Section 3.11(a)(vii), Section
3.11(a)(viii) or Section 4.04(b), as the case may be, had the Servicer itself
funded such Advance or Servicing Advance. The Trustee is hereby authorized to
pay directly to the Advancing Person such portion of the Servicing Fee as the
parties to any advance facility agree.
(c) All Advances and Servicing Advances made pursuant to the terms of
this Agreement shall be deemed made and shall be reimbursed on a "first in-first
out" (FIFO) basis.
(d) Any amendment to this Section 3.29 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 3.29, including
amendments to add provisions relating to a successor servicer, may be entered
into by the Trustee and the Servicer without the consent of any
Certificateholder but with the consent of the NIMS Insurer, notwithstanding
anything to the contrary in this Agreement.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a)(1) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC I to REMIC II on
account of the REMIC I Regular Interests or withdrawn from the Distribution
Account and distributed to the holders of the Class R Certificates (in respect
of the Class R-I Interest), as the case may be:
(i) (a) to Holders of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest
I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2,
REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I
Regular Interest I-LTM5, REMIC I Regular Interest I-LTMV6, REMIC I Regular
Interest I-LTMF6, REMIC I Regular Interest I-LTZZ and REMIC I Regular
Interest I-LTP, PRO RATA, in an amount equal to (A) the Uncertificated
Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates. Amounts payable
as Uncertificated Interest in respect of REMIC I Regular Interest I-LTZZ
shall be reduced and deferred when the REMIC I Overcollateralized Amount is
less than the REMIC I Required Overcollateralization Amount, by the lesser
of (x) the amount of such difference and (y) the Maximum I-LTZZ
Uncertificated Interest Deferral Amount and such amount will be payable to
the Holders of REMIC I Regular Interest I-LTA1, REMIC I Regular Interest
I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular Interest I-LTM1,
REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I
Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC Regular
Interest I-LTMV6 and REMIC I Regular Interest I-LTMF6 in the same
proportion as the Overcollateralization Deficiency Amount is allocated to
the Corresponding Certificates; and
(b) to Holders of REMIC I Regular Interest I-LT1SUB, REMIC I
Regular Interest I-LT1GRP, REMIC I Regular Interest I-LT2SUB, REMIC I
Regular Interest I- LT2GRP, REMIC I Regular Interest I-LT3SUB, REMIC I
Regular Interest I-LT3GRP and REMIC I Regular Interest I-LTXX, PRO RATA, in
an amount equal to (A) the Uncertificated Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates;
(ii) second, to the Holders of REMIC I Regular Interests, in an amount
equal to the remainder of the REMIC I Marker Allocation Percentage of
Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) above, allocated as follows:
(a) to the Holders of REMIC I Regular Interest I-LTAA and REMIC I
Regular Interest I-LTP, 98.00% of such remainder (other than amounts
payable under clause (d) below), until the Uncertificated Balance of such
REMIC I Regular Interest is reduced to zero, provided, however, that REMIC
I Regular Interest I-LTP shall not be reduced until the
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Distribution Date immediately following the expiration of the latest
Prepayment Charge as identified on the Prepayment Charge Schedule or any
Distribution Date thereafter, at which point such amount shall be
distributed to REMIC I Regular Interest I-LTP, until $100 has been
distributed pursuant to this clause;
(b) to the Holders of REMIC I Regular Interest I-LTA1, REMIC I
Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5,
REMIC Regular Interest I-LTMV6 and REMIC I Regular Interest I-LTMF6, 1.00%
of such remainder (other than amounts payable under clause (d) below), in
the same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Balances of such REMIC
I Regular Interests are reduced to zero;
(c) to the Holders of REMIC I Regular Interest I-LTZZ, 1.00% of
such remainder (other than amounts payable under clause (d) below), until
the Uncertificated Balance of such REMIC I Regular Interest is reduced to
zero; then
(d) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-I Interest);
provided, however, that (i) 98.00% and (ii) 2.00% of any principal payments
that are attributable to an Overcollateralization Release Amount shall be
allocated to Holders of (i) REMIC I Regular Interest I-LTAA and REMIC I
Regular Interest I-LTP, in that order and (ii) REMIC I Regular Interest
I-LTZZ, respectively; provided that REMIC I Regular Interest I-LTP shall
not be reduced until the Distribution Date immediately following the
expiration of the latest Prepayment Charge as identified on the Prepayment
Charge Schedule or any Distribution Date thereafter, at which point such
amount shall be distributed to REMIC I Regular Interest I-LTP, until $100
has been distributed pursuant to this clause.
On each Distribution Date, all amounts representing Prepayment Charges
in respect of the Mortgage Loans received during the related Prepayment
Period and any Servicer Prepayment Charge Payment Amount paid by the
Servicer during the related Prepayment Period will be distributed by REMIC
I to the Holders of REMIC I Regular Interest I-LTP. The payment of the
foregoing amounts to the Holders of REMIC I Regular Interest I-LTP shall
not reduce the Uncertificated Balance thereof.
(iii) to the Holders of REMIC I Regular Interests, in an amount equal
to the remainder of the REMIC I Sub WAC Allocation Percentage of Available
Funds for such Distribution Date after the distributions made pursuant to
clause (i) above, allocated so that:
distributions of principal shall be deemed to be made to the
REMIC I Regular Interests first, so as to keep the Uncertificated Balance
of each REMIC I 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 I Regular Interest ending
with the designation "SUB," so that the Uncertificated Balance of each such
REMIC
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I Regular Interest is equal to 0.01% of the excess of (x) the aggregate
Stated Principal Balance of the Mortgage Loans in the related Loan Group
over (y) the Certificate Principal Balance of the Class A Certificate in
the related Loan Group (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 I Regular Interests such that the REMIC
I Subordinated Balance Ratio is maintained); and third, any remaining
principal to REMIC I Regular Interest I-LTXX.
(2)(I) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account that portion of Available Funds for such Distribution Date
consisting of the Group I Interest Remittance Amount for such Distribution Date,
and make the following disbursements and transfers in the order of priority
described below, in each case to the extent of the Group I Interest Remittance
Amount remaining for such Distribution Date:
(i) to the Holders of the Class A-1 Certificates, the Monthly Interest
Distributable Amount and the Unpaid Interest Shortfall Amount, if any, for
such Certificates for such Distribution Date; and
(ii) to the Holders of the Class A-2 Certificates and the Class A-3
Certificates on a PRO RATA basis, based on the entitlement of each such
Class, an amount equal to the excess, if any, of (x) the amount required to
be distributed pursuant to Section 4.01(a)(2)(II)(i) and Section
4.01(a)(2)(III)(i) below, respectively, for such Distribution Date over (y)
the amount actually distributed pursuant to such section from the Group II
Interest Remittance Amount and the Group III Interest Remittance Amount,
respectively.
(II) On each Distribution Date the Trustee shall withdraw from the
Distribution Account that portion of Available Funds for such Distribution Date
consisting of the Group II Interest Remittance Amount for such Distribution
Date, and make the following disbursements and transfers in the order of
priority described below, in each case to the extent of the Group II Interest
Remittance Amount remaining for such Distribution Date:
(i) to the Holders of the Class A-2 Certificates, the Monthly Interest
Distributable Amount and the Unpaid Interest Shortfall Amount, if any, for
such Certificates for such Distribution Date; and
(ii) to the Holders of the Class A-1 Certificates and the Class A-3
Certificates on a PRO RATA basis, based on the entitlement of each such
Class, an amount equal to the excess, if any, of (x) the amount required to
be distributed pursuant to Section 4.01(a)(2)(I)(i) above and Section
4.01(a)(2)(III)(i) below, respectively, for such Distribution Date over (y)
the amount actually distributed pursuant to such section from the Group I
Interest Remittance Amount and the Group III Interest Remittance Amount,
respectively.
(III) On each Distribution Date the Trustee shall withdraw from the
Distribution Account that portion of Available Funds for such Distribution Date
consisting of the Group III Interest Remittance Amount for such Distribution
Date, and make the following disbursements and
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transfers in the order of priority described below, in each case to the extent
of the Group III Interest Remittance Amount remaining for such Distribution
Date:
(i) to the Holders of the Class A-3 Certificates, the Monthly Interest
Distributable Amount and the Unpaid Interest Shortfall Amount, if any, for
such Certificates for such Distribution Date; and
(ii) to the Holders of the Class A-1 Certificates and the Class A-2
Certificates on a PRO RATA basis, based on the entitlement of each such
Class, an amount equal to the excess, if any, of (x) the amount required to
be distributed pursuant to Section 4.01(a)(2)(I)(i) and Section
4.01(a)(2)(II)(i) above, respectively, for such Distribution Date over (y)
the amount actually distributed pursuant to such section from the Group I
Interest Remittance Amount and the Group II Interest Remittance Amount,
respectively.
(IV) On each Distribution Date, following the distributions made
pursuant to Section 4.01(a)(2)(I), (II) and (III) above, the Trustee shall make
the following disbursements and transfers in the order of priority described
below, in each case to the extent of the sum of the Group I Interest Remittance
Amount, the Group II Interest Remittance Amount and the Group III Interest
Remittance Amount remaining undistributed for such Distribution Date:
(i) to the Holders of the Class M-1 Certificates, the Monthly Interest
Distributable Amount allocable to such Certificates;
(ii) to the Holders of the Class M-2 Certificates, the Monthly
Interest Distributable Amount allocable to such Certificates;
(iii) to the Holders of the Class M-3 Certificates, the Monthly
Interest Distributable Amount allocable to such Certificates;
(iv) to the Holders of the Class M-4 Certificates, the Monthly
Interest Distributable Amount allocable to such Certificates;
(v) to the Holders of the Class M-5 Certificates, the Monthly Interest
Distributable Amount allocable to such Certificates; and
(vi) to the Holders of the Class MV-6 Certificates and the Class MF-6
Certificates on a PRO RATA basis based on the respective Monthly Interest
Distributable Amount allocable to such Classes Certificates.
(3)(I) On each Distribution Date (a) prior to the Stepdown Date or (b)
on which a Trigger Event is in effect, distributions in respect of principal to
the extent of the Group I Principal Distribution Amount shall be made in the
following amounts and order of priority:
(i) first, to the Holders of the Class A-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; and
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(ii) second, after taking into account the amount distributed to the
Holders of the Class A-2 Certificates and the Class A-3 Certificates
pursuant to Section 4.01(a)(3)(II)(i) and Section 4.01(a)(3)(III)(i) below,
respectively, on such Distribution Date, to the Holders of the Class A-2
Certificates and the Class A-3 Certificates, on a PRO RATA basis based on
the Class A-2 Allocation Percentage and the Class A-3 Allocation Percentage
(provided, that the Group I Principal Remittance Amount is not included in
the denominator for purposes of calculating the Class A-2 Allocation
Percentage and the Class A-3 Allocation Percentage), respectively, until
the Certificate Principal Balances thereof have been reduced to zero.
(II) On each Distribution Date (a) prior to the Stepdown Date or (b)
on which a Trigger Event is in effect, distributions in respect of principal to
the extent of the Group II Principal Distribution Amount shall be made in the
following amounts and order of priority:
(i) first, to the Holders of the Class A-2 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; and
(ii) second, after taking into account the amount distributed to the
Holders of the Class A-1 Certificates and the Class A-3 Certificates
pursuant to Section 4.01(a)(3)(I)(i) above and Section 4.01(a)(3)(III)(i)
below, respectively, on such Distribution Date, to the Holders of the Class
A-1 Certificates and the Class A-3 Certificates, on a PRO RATA basis based
on the Class A-1 Allocation Percentage and the Class A-3 Allocation
Percentage (provided, that the Group II Principal Remittance Amount is not
included in the denominator for purposes of calculating the Class A-1
Allocation Percentage and the Class A-3 Allocation Percentage),
respectively, until the Certificate Principal Balances thereof have been
reduced to zero.
(III) On each Distribution Date (a) prior to the Stepdown Date or (b)
on which a Trigger Event is in effect, distributions in respect of principal to
the extent of the Group III Principal Distribution Amount shall be made in the
following amounts and order of priority:
(i) first, to the Holders of the Class A-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; and
(ii) second, after taking into account the amount distributed to the
Holders of the Class A-1 Certificates and the Class A-2 Certificates
pursuant to Section 4.01(a)(3)(I)(i) and Section 4.01(a)(3)(II)(i) above,
respectively, on such Distribution Date, to the Holders of the Class A-1
Certificates and the Class A-2 Certificates, on a PRO RATA basis based on
the Class A-1 Allocation Percentage and the Class A-2 Allocation Percentage
(provided, that the Group III Principal Remittance Amount is not included
in the denominator for purposes of calculating the Class A-1 Allocation
Percentage and the Class A-2 Allocation Percentage), respectively, until
the Certificate Principal Balances thereof have been reduced to zero.
(IV) On each Distribution Date (a) prior to the Stepdown Date or (b)
on which a Trigger Event is in effect, distributions in respect of principal to
the extent of the sum of the Group I Principal Distribution Amount, the Group II
Principal Distribution Amount and the Group III
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Principal Distribution Amount remaining undistributed for such Distribution Date
shall be made in the following amounts and order of priority:
(i) first, to the Holders of the Class M-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
(ii) second, to the Holders of the Class M-2 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
(iii) third, to the Holders of the Class M-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
(iv) fourth, to the Holders of the Class M-4 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
(v) fifth, to the Holders of the Class M-5 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; and
(vi) sixth, to the Holders of the Class MV-6 Certificates and the
Class MF-6 Certificates on a PRO RATA basis, based on the respective
Certificate Principal Balances of such Classes of Certificates, until the
Certificate Principal Balance of such Certificates has been reduced to
zero.
(V) On each Distribution Date (a) on or after the Stepdown Date and
(b) on which a Trigger Event is not in effect, distributions in respect of
principal to the extent of the Group I Principal Distribution Amount shall be
made in the following amounts and order of priority:
(i) first, to the Holders of the Class A-1 Certificates, the Class A-1
Principal Distribution Amount until the Certificate Principal Balance
thereof has been reduced to zero;
(ii) second, to the extent of the portion, if any, of the Class A-1
Principal Distribution Amount remaining undistributed pursuant to Section
4.01(a)(3)(V)(i) above on such Distribution Date, and after taking into
account the amount distributed to the Holders of the Class A-2 Certificates
and the Class A-3 Certificates pursuant to Section 4.01(a)(3)(VI)(i) and
Section 4.01(a)(3)(VII)(i) below, respectively, to the holders of the Class
A-2 Certificates and the Class A-3 Certificates, on a PRO RATA basis based
on the Class A-2 Allocation Percentage and the Class A-3 Allocation
Percentage (calculated for this purpose only, that the Group I Principal
Remittance Amount is not included in the denominator for purposes of
calculating the Class A-2 Allocation Percentage and the Class A-3
Allocation Percentage), after taking into account the distribution of the
Group II Principal Distribution Amount and the Group III Principal
Distribution Amount, respectively, as described herein, until the
Certificate Principal Balances of such classes have been reduced to zero;
and
(iii) third, to the Holders of the Class A-2 Certificates and the
Class A-3 Certificates, on a PRO RATA basis based on amounts distributed
pursuant to Section
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4.01(a)(3)(VI)(i) and Section 4.01(a)(3)(VII)(i) below, after taking into
account the distributions of the Group II Principal Distribution Amount and
the Group III Distribution Amount, respectively, as described herein, up to
an amount equal to the Class A-2 Principal Distribution Amount or the Class
A-3 Principal Distribution Amount, as applicable, on such Distribution
Date, until the Certificate Principal Balances of such classes have been
reduced to zero.
(VI) On each Distribution Date (a) on or after the Stepdown Date and
(b) on which a Trigger Event is not in effect, distributions in respect of
principal to the extent of the Group II Principal Distribution Amount shall be
made in the following amounts and order of priority:
(i) first, to the Holders of the Class A-2 Certificates, the Class A-2
Principal Distribution Amount until the Certificate Principal Balance
thereof has been reduced to zero;
(ii) second, to the extent of the portion, if any, of the Class A-2
Principal Distribution Amount remaining undistributed pursuant to Section
4.01(a)(3)(VI)(i) above on such Distribution Date, and after taking into
account the amount distributed to the Holders of the Class A-1 Certificates
and the Class A-3 Certificates pursuant to Section 4.01(a)(3)(V)(i) above
and Section 4.01(a)(3)(VII)(i) below, respectively, to the holders of the
Class A-1 Certificates and the Class A-3 Certificates, on a PRO RATA basis
based on the Class A-1 Allocation Percentage and the Class A-3 Allocation
Percentage (calculated for this purpose only, that the Group II Principal
Remittance Amount is not included in the denominator for purposes of
calculating the Class A-1 Allocation Percentage and the Class A-3
Allocation Percentage), after taking into account the distribution of the
Group I Principal Distribution Amount and the Group III Principal
Distribution Amount, respectively, as described herein, until the
Certificate Principal Balances of such classes have been reduced to zero;
and
(iii) third, to the Holders of the Class A-1 Certificates and the
Class A-3 Certificates, on a PRO RATA basis based on amounts distributed
pursuant to Section 4.01(a)(3)(V)(i) above and Section 4.01(a)(3)(VII)(i)
below, after taking into account the distributions of the Group I Principal
Distribution Amount and the Group III Distribution Amount, respectively, as
described herein, up to an amount equal to the Class A-1 Principal
Distribution Amount or the Class A-3 Principal Distribution Amount, as
applicable, on such Distribution Date, until the Certificate Principal
Balances of such classes have been reduced to zero.
(VII) On each Distribution Date (a) on or after the Stepdown Date and
(b) on which a Trigger Event is not in effect, distributions in respect of
principal to the extent of the Group III Principal Distribution Amount shall be
made in the following amounts and order of priority:
(i) first, to the Holders of the Class A-3 Certificates, the Class A-3
Principal Distribution Amount until the Certificate Principal Balance
thereof has been reduced to zero;
(ii) second, to the extent of the portion, if any, of the Class A-3
Principal Distribution Amount remaining undistributed pursuant to Section
4.01(a)(3)(VII)(i) above on such Distribution Date, and after taking into
account the amount distributed to the Holders of the Class A-1 Certificates
and the Class A-2 Certificates pursuant to Section
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4.01(a)(3)(V)(i) and Section 4.01(a)(3)(VI)(i) above, respectively, to the
holders of the Class A-1 Certificates and the Class A-2 Certificates, on a
PRO RATA basis based on the Class A-1 Allocation Percentage and the Class
A-3 Allocation Percentage (calculated for this purpose only, that the Group
III Principal Remittance Amount is not included in the denominator for
purposes of calculating the Class A-1 Allocation Percentage and the Class
A-2 Allocation Percentage), after taking into account the distribution of
the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount, respectively, as described herein, until the
Certificate Principal Balances of such classes have been reduced to zero;
and
(iii) third, to the Holders of the Class A-1 Certificates and the
Class A-2 Certificates, on a PRO RATA basis based on amounts distributed
pursuant to Section 4.01(a)(3)(V)(i) and Section 4.01(a)(3)(VI)(i) above,
after taking into account the distributions of the Group I Principal
Distribution Amount and the Group II Distribution Amount, respectively, as
described herein, up to an amount equal to the Class A-1 Principal
Distribution Amount or the Class A-2 Principal Distribution Amount, as
applicable, on such Distribution Date, until the Certificate Principal
Balances of such classes have been reduced to zero.
(VIII) On each Distribution Date (a) on or after the Stepdown Date and
(b) on which a Trigger Event is not in effect, distributions in respect of
principal to the extent of the sum of the Group I Principal Distribution Amount,
the Group II Principal Distribution Amount and the Group III Principal
Distribution Amount remaining undistributed for such Distribution Date shall be
made in the following amounts and order of priority:
(i) first, to the Holders of the Class M-1 Certificates, the Class M-1
Principal Distribution Amount until the Certificate Principal Balance
thereof has been reduced to zero;
(ii) second, to the Holders of the Class M-2 Certificates, the Class
M-2 Principal Distribution Amount until the Certificate Principal Balance
thereof has been reduced to zero;
(iii) third, to the Holders of the Class M-3 Certificates, the Class
M-3 Principal Distribution Amount until the Certificate Principal Balance
thereof has been reduced to zero;
(iv) fourth, to the Holders of the Class M-4 Certificates, the Class
M-4 Principal Distribution Amount until the Certificate Principal Balance
thereof has been reduced to zero;
(v) fifth, to the Holders of the Class M-5 Certificates, the Class M-5
Principal Distribution Amount until the Certificate Principal Balance
thereof has been reduced to zero; and
(vi) sixth, to the Holders of the Class MV-6 Certificates and the
Class MF-6 Certificates, the Class M-4 Principal Distribution Amount, on a
PRO RATA basis, based on the respective Certificate Principal Balances of
such Classes of Certificates, until the Certificate Principal Balances of
such Certificates have been reduced to zero.
(4) On each Distribution Date, the Net Monthly Excess Cashflow shall
be distributed as follows:
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(i) to the Holders of the Class or Classes of Certificates then
entitled to receive distributions in respect of principal, in an amount
equal to any Extra Principal Distribution Amount, distributable to such
Holders as part of the Group I Principal Distribution Amount, the Group II
Principal Distribution Amount and/or the Group III Principal Distribution
Amount as described under Section 4.01(a)(3) above;
(ii) to the Holders of the Class M-1 Certificates, in an amount equal
to the Unpaid Interest Shortfall Amount allocable to such Certificates;
(iii) to the Holders of the Class M-1 Certificates, in an amount equal
to the Allocated Realized Loss Amount allocable to such Certificates;
(iv) to the Holders of the Class M-2 Certificates, in an amount equal
to the Unpaid Interest Shortfall Amount allocable to such Certificates;
(v) to the Holders of the Class M-2 Certificates, in an amount equal
to the Allocated Realized Loss Amount allocable to such Certificates;
(vi) to the Holders of the Class M-3 Certificates, in an amount equal
to the Unpaid Interest Shortfall Amount allocable to such Certificates;
(vii) to the Holders of the Class M-3 Certificates, in an amount equal
to the Allocated Realized Loss Amount allocable to such Certificates;
(viii) to the Holders of the Class M-4 Certificates, in an amount
equal to the Unpaid Interest Shortfall Amount allocable to such
Certificates;
(ix) to the Holders of the Class M-4 Certificates, in an amount equal
to the Allocated Realized Loss Amount allocable to such Certificates;
(x) to the Holders of the Class M-5 Certificates, in an amount equal
to the Unpaid Interest Shortfall Amount allocable to such Certificates;
(xi) to the Holders of the Class M-5 Certificates, in an amount equal
to the Allocated Realized Loss Amount allocable to such Certificates;
(xii) to the Holders of the Class MV-6 Certificates and the Class MF-6
Certificates, on a PRO RATA basis, based on the respective Unpaid Interest
Shortfall Amount allocable to such Classes of Certificates;
(xiii) to the Holders of the Class MV-6 Certificates and the Class
MF-6 Certificates, on a PRO RATA basis, based on the respective Allocated
Realized Loss Amount allocable to such Classes of Certificates;
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(xiv) to the Net WAC Rate Carryover Reserve Account, the amount of any
Net WAC Rate Carryover Amount and any other amounts required by Section
4.07, after taking into account amounts received under the Cap Contract;
(xv) to the Holders of the Class CE Certificates, the Monthly Interest
Distributable Amount for such Class and any remaining Overcollateralization
Release Amount for such Distribution Date;
(xvi) if such Distribution Date follows the Prepayment Period during
which occurs the latest date on which a Prepayment Charge may be required
to be paid in respect of any Mortgage Loans, to the Holders of the Class P
Certificates, in reduction of the Certificate Principal Balance thereof,
until the Certificate Principal Balance thereof is reduced to zero; and
(xvii) any remaining amounts to the Holders of the Residual
Certificates (in respect of the appropriate Class R Interest).
Without limiting the provisions of Section 9.01(b), by acceptance of
the Residual Certificates the Holders of the Residual Certificates agree, and it
is the understanding of the parties hereto, that for so long as any of the notes
issued pursuant to the Indenture are outstanding or any amounts are reimbursable
or payable to the NIMS Insurer in accordance with the terms of the Indenture, to
pledge their rights to receive any amounts otherwise distributable to the
Holders of the Class R Certificates (and such rights are hereby assigned and
transferred) to the Holders of the Class CE Certificates.
(b) On each Distribution Date, after making the distributions of the
Available Funds as set forth above, the Trustee will FIRST, withdraw from the
Net WAC Rate Carryover Reserve Account all income from the investment of funds
in the Net WAC Rate Carryover Reserve Account and distribute such amount to the
Holders of the Class CE Certificates, and SECOND, withdraw from the Net WAC Rate
Carryover Reserve Account, to the extent of amounts remaining on deposit
therein, the amount of any Net WAC Rate Carryover Amount for such Distribution
Date and distribute such amount FIRST, concurrently to the Class A-1
Certificates, the Class A-2 Certificates and the Class A-3 Certificates, on a
PRO RATA basis based on the Net WAC Rate Carryover Amounts for each such Class,
until each such amount has been distributed in full; SECOND, to the Class M-1
Certificates, THIRD, to the Class M-2 Certificates, FOURTH, to the Class M-3
Certificates, FIFTH, to the Class M-4 Certificates, SIXTH, to the Class M-5
Certificates, SEVENTH, to the Class MV-6 Certificates and the Class MF-6
Certificates on a PRO RATA basis based on the respective Net WAC Carryover
Amount allocable to each such Class.
On each Distribution Date, the Trustee shall withdraw any amounts then
on deposit in the Distribution Account that represent (i) Prepayment Charges
collected by the Servicer in connection with the Principal Prepayment of any of
the Mortgage Loans or (ii) any Servicer Prepayment Charge Payment Amount, and
shall distribute such amounts to the Holders of the Class P Certificates. Such
distributions shall not be applied to reduce the Certificate Principal Balance
of the Class P Certificates.
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(c) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated PRO RATA among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Distributions in respect of each Class of Certificates on each Distribution Date
will be made to the Holders of the respective Class of record on the related
Record Date (except as otherwise provided in Section 4.01(e) or Section 9.01
respecting the final distribution on such Class), based on the aggregate
Percentage Interest represented by their respective Certificates, and shall be
made by wire transfer of immediately available funds to the account of any such
Holder at a bank or other entity having appropriate facilities therefor, if such
Holder 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 Certificates having an initial aggregate Certificate
Principal Balance or Notional Amount that is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the initial Certificate Principal Balance or
Notional Amount of such Class of Certificates, or otherwise by check mailed by
first class mail to the address of such Holder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or such other location specified in the
notice to Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting 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. None of the Trustee, the Depositor
or the Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(d) The rights of the Certificateholders to receive distributions in
respect of the Certificates, and all interests of the Certificateholders in such
distributions, shall be as set forth in this Agreement. None of the Holders of
any Class of Certificates, the Trustee or the Servicer shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(e) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Trustee shall, no later than
three (3) days before the related Distribution Date, mail to each Holder on such
date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the
Trustee therein specified, and
(ii) no interest shall accrue on such Certificates from and after the
end of the related Accrual Period.
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Any funds not distributed to any Holder or Holders of Certificates of
such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust by the Trustee and credited to the account of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(e) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee shall, directly or through an agent, mail a final
notice to the remaining non-tendering Certificateholders concerning surrender of
their Certificates but shall continue to hold any remaining funds for the
benefit of non-tendering Certificateholders. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in the Trust Fund. If within one year after
the final notice any such Certificates shall not have been surrendered for
cancellation, the Trustee shall pay to UBS Warburg LLC all such amounts, and all
rights of non-tendering Certificateholders in or to such amounts shall thereupon
cease. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust by the Trustee as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with this Section 4.01(e). Any such amounts held in trust by the Trustee shall
be held in an Eligible Account and the Trustee may direct any depository
institution maintaining such account to invest the funds in one or more
Permitted Investments. All income and gain realized from the investment of funds
deposited in such accounts held in trust by the Trustee shall be for the benefit
of the Trustee; provided, however, that the Trustee shall deposit in such
account the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such accounts immediately upon the
realization of such loss.
(f) Notwithstanding anything to the contrary herein, (i) in no event
shall the Certificate Principal Balance of a Class A Certificate or a Mezzanine
Certificate be reduced more than once in respect of any particular amount both
(a) allocated to such Certificate in respect of Realized Losses pursuant to
Section 4.04 and (b) distributed to the Holder of such Certificate in reduction
of the Certificate Principal Balance thereof pursuant to this Section 4.01 from
Net Monthly Excess Cashflow and (ii) in no event shall the Uncertificated
Balance of a REMIC I Regular Interest be reduced more than once in respect of
any particular amount both (a) allocated to such REMIC I Regular Interest in
respect of Realized Losses pursuant to Section 4.04 and (b) distributed on such
REMIC I Regular Interest in reduction of the Uncertificated Balance thereof
pursuant to this Section 4.01.
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date, the Trustee shall prepare and make
available on its website at xxx.xxxxxx.xxx/xxx for access by each Holder of the
Regular Certificates and the NIMS Insurer, a statement as to the distributions
made on such Distribution Date setting forth:
(i) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to principal, and
the amount of the distribution
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made on such Distribution Date to the Holders of the Class P Certificates
allocable to Prepayment Charges and Servicer Prepayment Charge Payment
Amounts;
(ii) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to interest;
(iii) the aggregate Servicing Fee received by the Servicer during the
related Due Period and such other customary information as the Trustee
deems necessary or desirable, or which a Certificateholder reasonably
requests, to enable Certificateholders to prepare their tax returns;
(iv) the aggregate amount of Advances for such Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Properties as of the close of business on such Distribution Date;
(vi) the number, aggregate Principal Balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of Mortgage
Loans (a) delinquent 30 to 59 days, (b) delinquent 60 to 89 days, (c)
delinquent 90 or more days, in each case, as of the last day of the
preceding calendar month, (d) as to which foreclosure proceedings have been
commenced and (e) with respect to which the related Mortgagor has filed for
protection under applicable bankruptcy laws, with respect to whom
bankruptcy proceedings are pending or with respect to whom bankruptcy
protection is in force;
(viii) the total number and cumulative principal balance of all REO
Properties as of the close of business on the last day of the preceding
Prepayment Period;
(ix) [reserved];
(x) the aggregate amount of Principal Prepayments made during the
related Prepayment Period;
(xi) the aggregate amount of Realized Losses incurred during the
related Prepayment Period and the aggregate amount of Realized Losses
incurred since the Closing Date;
(xii) the aggregate amount of Extraordinary Trust Fund Expenses
withdrawn from the Collection Account or the Distribution Account for such
Distribution Date;
(xiii) the aggregate Certificate Principal Balance and Notional
Amount, as applicable, of each Class of Certificates, after giving effect
to the distributions, and allocations of Realized Losses, made on such
Distribution Date, separately identifying any reduction thereof due to
allocations of Realized Losses;
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(xiv) the Certificate Factor for each such Class of Certificates
applicable to such Distribution Date;
(xv) the Monthly Interest Distributable Amount in respect of the Class
A Certificates, the Mezzanine Certificates and the Class CE Certificates
for such Distribution Date and the Unpaid Interest Shortfall Amount, if
any, with respect to the Class A Certificates and the Mezzanine
Certificates on such Distribution Date, separately identifying any
reduction thereof due to allocations of Realized Losses, Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls;
(xvi) the aggregate amount of any Prepayment Interest Shortfall for
such Distribution Date, to the extent not covered by payments by the
Servicer pursuant to Section 3.24;
(xvii) the aggregate amount of Relief Act Interest Shortfalls for such
Distribution Date;
(xviii) the Overcollateralization Target Amount, Overcollateralized
Amount and Overcollateralization Deficiency Amount and the Credit
Enhancement Percentage for such Distribution Date;
(xix) the respective Pass-Through Rates applicable to the Class A
Certificates, the Mezzanine Certificates and the Class CE Certificates for
such Distribution Date and the Pass-Through Rate applicable to the Class A
Certificates and the Mezzanine Certificates for the immediately succeeding
Distribution Date;
(xx) [reserved];
(xxi) the Aggregate Loss Severity Percentage;
(xxii) when the Stepdown Date or Trigger Event has occurred;
(xxiii) the Available Funds;
(xxiv) the Net WAC Rate Carryover Amount for the Class A Certificates
and the Mezzanine Certificates, if any, for such Distribution Date, the
amount remaining unpaid after reimbursements therefor on such Distribution
Date and any amounts received under the Cap Contract;
(xxv) [reserved]; and
(xxvi) [reserved].
In the case of information furnished pursuant to subclauses (i)
through (iii) above, the amounts shall be expressed as a dollar amount per
Single Certificate of the relevant Class.
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Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon written request, furnish to each Person who at any
time during the calendar year was a Holder of a Regular Certificate and the NIMS
Insurer a statement containing the information set forth in subclauses (i)
through (iii) 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 provided by the Trustee pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Trustee shall make available on its
website at xxx.xxxxxx.xxx/xxx for access by the Depositor, the NIMS Insurer, the
Trustee, each Holder of a Residual Certificate and the Servicer, the reports
available to the Regular Certificateholders on such Distribution Date and a
statement setting forth the amounts, if any, actually distributed with respect
to the Residual Certificates, respectively, on such Distribution Date.
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 Holder of a Residual Certificate and the NIMS Insurer a
statement setting forth the amount, if any, actually distributed with respect to
the Residual Certificates, as appropriate, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
The Trustee shall, upon request, furnish to each Certificateholder and
the NIMS Insurer, during the term of this Agreement, such periodic, special, or
other reports or information, whether or not provided for herein, as shall be
reasonable with respect to the Certificateholder, or otherwise with respect to
the purposes of this Agreement, all such reports or information to be provided
at the expense of the Certificateholder in accordance with such reasonable and
explicit instructions and directions as the Certificateholder may provide. For
purposes of this Section 4.02, the Trustee's duties are limited to the extent
that the Trustee receives timely reports as required from the Servicer.
On each Distribution Date the Trustee shall provide Bloomberg
Financial Markets, L.P. ("Bloomberg") CUSIP level factors for each class of
Certificates as of such Distribution Date, using a format and media mutually
acceptable to the Trustee and Bloomberg.
SECTION 4.03. Remittance Reports; Advances.
(a) Not later than 2:00 p.m. New York time on the third Business Day
following each Determination Date but in no event later than the earlier of (i)
such date which would allow the indenture trustee to submit a claim to the NIMS
Insurer under the Indenture so as to allow a timely payment by the NIMS Insurer
under the insurance policy related to the notes insured by the NIMS Insurer and
(ii) the 20th day of each month (or if such 20th day is not a Business Day, the
preceding Business Day), the Servicer shall deliver to the Trustee, the
Originator and the NIMS Insurer by telecopy or electronic mail (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 forward to the Trustee by overnight mail a computer readable
magnetic tape or electronically transmit (in a format acceptable to the Trustee)
a data file containing the information set forth in such Remittance Report with
respect to the related Distribution Date. Such Remittance
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Report will include (i) the amount of Advances to be made by the Servicer in
respect of the related Distribution Date, the aggregate amount of Advances
outstanding after giving effect to such Advances, and the aggregate amount of
Nonrecoverable Advances in respect of such Distribution Date and (ii) such other
information with respect to the Mortgage Loans as the Trustee may reasonably
require to perform the calculations necessary to make the distributions
contemplated by Section 4.01, to prepare the statements to Certificateholders
contemplated by Section 4.02 and to prepare the Certification required by
Section 4.06. 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 4.03(d), the sum of (i) the
aggregate amount of Monthly Payments (with each interest portion thereof net of
the related Servicing Fee), due on the related Due Date in respect of the
Mortgage Loans, which Monthly Payments were delinquent 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
Prepayment Period and as to which REO Property an REO Disposition did not occur
during the related Prepayment Period, an amount equal to the excess, if any, of
the REO Imputed Interest on such REO Property for the most recently ended
calendar month, over the net income from such REO Property transferred to the
Distribution Account pursuant to Section 3.23 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.
By 1:00 p.m. New York time on the 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 and REO Properties 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
Collection Account that amounts held for future distribution have been, as
permitted by this Section 4.03, 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 and REO Properties. 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 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 Certificateholders pursuant to Section 4.01 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 and the
NIMS Insurer by telecopy by the close of business on the third Business Day
prior to the Distribution 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.
(c) The obligation of the Servicer to make such Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any Mortgage Loan or REO Property, shall continue until a
Final Recovery Determination in
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connection therewith or the removal thereof from the Trust Fund pursuant to any
applicable provision of this Agreement, except as otherwise provided in this
Section.
(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 or Servicing Advance would, if made, constitute a Nonrecoverable Advance
or Nonrecoverable Servicing Advance, respectively. The determination by the
Servicer that it has made a Nonrecoverable Advance or a Nonrecoverable Servicing
Advance or that any proposed Advance or Servicing Advance, if made, would
constitute a Nonrecoverable Advance or Nonrecoverable Servicing Advance,
respectively, shall be evidenced by an Officers' Certificate of the Servicer
delivered to the Depositor, the NIMS Insurer and the Trustee.
SECTION 4.04. Allocation of Realized Losses.
(a) Prior to each Determination Date, the Servicer shall determine as
to each Mortgage Loan and REO Property: (i) the total amount of Realized Losses,
if any, incurred in connection with any Final Recovery Determinations made
during the related Prepayment Period; and (ii) the respective portions of such
Realized Losses allocable to interest and allocable to principal. Prior to each
Determination Date, the Servicer shall also determine as to each Mortgage Loan:
(i) the total amount of Realized Losses, if any, incurred in connection with any
Deficient Valuations made during the related Prepayment Period; and (ii) the
total amount of Realized Losses, if any, incurred in connection with Debt
Service Reductions in respect of Monthly Payments due during the related Due
Period. The information described in the preceding sentence that is to be
supplied by the Servicer shall be evidenced by an Officers' Certificate
delivered to the Trustee by the Servicer prior to the Determination Date
immediately following the end of the Prepayment Period during which any such
Realized Loss was incurred.
(b) All Realized Losses on the Mortgage Loans shall be allocated by
the Trustee on each Distribution Date as follows: first, to Net Monthly Excess
Cashflow; second, to the Class CE Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; third, to the Class MV-6 Certificates
and the Class MF-6 Certificates, on a PRO RATA basis, based on the respective
Certificate Principal Balances of such Classes of Certificates, until the
respective Certificate Principal Balances thereof have been reduced to zero;
fourth, to the Class M-5 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; fifth, to the Class M-4 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; sixth, to
the Class M-3 Certificates, until the Certificate Principal Balance thereof has
been reduced to zero; seventh, to the Class M-2 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; and eighth, to
the Class M-1 Certificates, until the Certificate Principal Balance thereof has
been reduced to zero. All Realized Losses to be allocated to the Certificate
Principal Balances of all Classes on any Distribution Date shall be so allocated
after the actual distributions to be made on such date as provided above. All
references above to the Certificate Principal Balance of any Class of
Certificates shall be to the Certificate Principal Balance of such Class
immediately prior to the relevant Distribution Date, before reduction thereof by
any Realized Losses, in each case to be allocated to such Class of Certificates,
on such Distribution Date.
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Any allocation of Realized Losses to a Mezzanine Certificate on any
Distribution Date shall be made by reducing the Certificate Principal Balance
thereof by the amount so allocated; any allocation of Realized Losses to a Class
CE Certificate shall be made by reducing the amount otherwise payable in respect
thereof pursuant to Section 4.01(a)(4)(xiii). No allocations of any Realized
Losses shall be made to the Certificate Principal Balances of the Class A
Certificates or the Class P Certificates.
As used herein, an allocation of a Realized Loss on a "PRO RATA basis"
among two or more specified Classes of Certificates means an allocation on a PRO
RATA basis, among the various Classes so specified, to each such Class of
Certificates on the basis of their then outstanding Certificate Principal
Balances prior to giving effect to distributions to be made on such Distribution
Date. All Realized Losses and all other losses allocated to a Class of
Certificates hereunder will be allocated among the Certificates of such Class in
proportion to the Percentage Interests evidenced thereby.
(c)(i) The REMIC I Marker Percentage of all Realized Losses on the
Mortgage Loans shall be allocated by the Trustee on each Distribution Date to
the following REMIC I Regular Interests in the specified percentages, as
follows: first, to Uncertificated Interest payable to the REMIC I Regular
Interest I-LTAA and REMIC I Regular Interest I-LTZZ up to an aggregate amount
equal to the REMIC I Interest Loss Allocation Amount, 98% and 2%, respectively;
second, to the Uncertificated Balances of the REMIC I Regular Interest I-LTAA
and REMIC I Regular Interest I- LTZZ up to an aggregate amount equal to the
REMIC I Principal Loss Allocation Amount, 98% and 2%, respectively; third, to
the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTMV6, REMIC Regular Interest I-LTMF6, and REMIC I Regular Interest
I- LTZZ, 98%, 0.50%, 0.50% and 1%, respectively, until the Uncertificated
Balances of REMIC I Regular Interest I-LTMV6 and REMIC I Regular Interest
I-LTMF6 have been reduced to zero; fourth, to the Uncertificated Balances of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM5 and REMIC I
Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM5 has been reduced to zero; fifth, to
the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM4 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM4 has been reduced to zero; sixth, to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM3 and REMIC I Regular
Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC I Regular Interest I-LTM3 has been reduced to zero; seventh to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM2 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM2 has been reduced to zero; and eighth, to the Uncertificated Balances of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM1 and REMIC I
Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I- LTM1 has been reduced to zero.
(ii) The REMIC I 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 Balance of each REMIC I 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;
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second, to each REMIC I Regular Interest ending with the designation "SUB," so
that the Uncertificated Balance of each such REMIC I Regular Interest is equal
to 0.01% of the excess of (x) the aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group over (y) the Certificate Principal
Balance of the Class A Certificate in the related Loan Group (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 I Regular
Interests such that the REMIC I Subordinated Balance Ratio is maintained); and
third, any remaining Realized Losses shall be allocated to REMIC I Regular
Interest I-LTXX.
SECTION 4.05. Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
SECTION 4.06. Exchange Commission; Additional Information.
(a) The Trustee and the Servicer shall reasonably cooperate with the
Depositor in connection with satisfying the reporting requirements of the Trust
Fund under the Exchange Act. The Trustee shall prepare and sign on behalf of the
Trust Fund any Forms 8-K customary for similar securities as required by the
Exchange Act and the Rules and Regulations of the Commission thereunder, and the
Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval
System) such forms on behalf of the Trust Fund. The Trustee shall prepare and
sign any Form 10-K which includes as exhibits (i) the Certification (as defined
in (b) below), (ii) the Servicer's annual statement of compliance described
under Section 3.20 and (iii) the accountant's report described under Section
3.21 and the Trustee shall file (via the Commission's Electronic Data Gathering
and Retrieval System) such forms on behalf of the Trust Fund. To the extent that
the Commission requires any additional information to be filed pursuant to a
Form 10-K, the Trustee, shall prepare, sign and promptly file an amended Form
10-K containing such additional information. To the extent that the Servicer
acquires actual knowledge of material information (as determined by the Servicer
in good faith) concerning the Trust Fund, it shall notify the Trustee of such
information.
(b) Each Form 8-K shall be filed by the Trustee within 15 days after
each Distribution Date with a copy of the Monthly Statement for such
Distribution Date as an exhibit thereto. Prior to March 31st of each year (or
such earlier date as may be required by the Exchange Act and the Rules and
Regulations of the Commission), the Trustee shall file a Form 10-K, in substance
as required by applicable law or applicable Commission staff's interpretations.
Such Form 10-K shall include as exhibits the Servicer's annual statement of
compliance described under Section 3.20 and the accountant's report described
under Section 3.21, 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
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prepare or file such periodic reports resulting from or relating to (a) the
Trustee's inability or failure to obtain any information not resulting from its
own negligence or willful misconduct or (b) any inaccuracy in such periodic
reports resulting from incorrect information provided to the Trustee by the
Servicer in a Remittance Report or otherwise. The Form 10-K shall also include a
certification in the form attached hereto as Exhibit J-1 (the "Certification"),
which shall be signed by the Trustee.
(c) In addition, the Servicer shall sign a certification (in the form
attached hereto as Exhibit J-2) for the benefit of the Trustee and its officers,
directors and Affiliates regarding certain aspects of the Certification
(provided, however, that the Servicer shall not undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K). The Servicer's
certification shall be delivered to the Trustee by no later than March 1st of
each year (or if such day is not a Business Day, the immediately preceding
Business Day).
In addition, (i) the Trustee shall, subject to the provisions of
Sections 8.01 and 8.02, indemnify and hold harmless the Depositor and the
Servicer and their respective 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 a breach of the Trustee's obligations under Section
4.06(b) or the Trustee's negligence, bad faith or willful misconduct in
connection therewith, and (ii) the Servicer shall indemnify and hold harmless
the Depositor, the Trustee and their respective 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 a breach of the Servicer's obligations
under this Section 4.06(b) 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 or the Servicer,
then (i) the Trustee agrees that it shall contribute to the amount paid or
payable by the Depositor or the Servicer, as applicable, as a result of the
losses, claims, damages or liabilities of the Depositor or the Servicer, as
applicable, in such proportion as is appropriate to reflect the relative fault
of the or the Depositor or the Servicer, as applicable, on the one hand and the
Trustee on the other in connection with a breach of the Trustee's obligations
under this Section 4.06(b) 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 or the Trustee, as
applicable, as a result of the losses, claims, damages or liabilities of the
Depositor or the Trustee, as applicable, in such proportion as is appropriate to
reflect the relative fault of the Depositor or the Trustee, as applicable, on
the one hand and the Servicer on the other in connection with a breach of the
Servicer's obligations under this Section 4.06(b) or the Servicer's negligence,
bad faith or willful misconduct in connection therewith. Notwithstanding any
other provision in this Agreement to the contrary, the Servicer shall not have
any responsibility or liability to any party relating to the certification or
information prepared, certified or distributed by the Trustee or any other party
other than the Servicer unless such information was derived from erroneous or
incomplete information required to be provided by the Servicer under this
Agreement.
(d) Upon any filing with the Commission pursuant to this Section
4.06(b), the Trustee shall promptly deliver to the Depositor a copy of any
executed report, statement or information.
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(e) Prior to January 30 of the first year in which the Trustee is able
to do so under applicable law, the Trustee shall file a Form 15 Suspension
Notification with respect to the Trust Fund.
SECTION 4.07. Net WAC Rate Carryover Reserve Account.
No later than the Closing Date, the Trustee shall establish and
maintain with itself a separate, segregated trust account titled, "Net WAC Rate
Carryover Reserve Account, U.S. Bank National Association, as Trustee, in trust
for the registered holders of MASTR Asset Backed Securities Trust 2003-WMC1,
Mortgage Pass-Through Certificates." On the Closing Date, the Depositor will
deposit, or cause to be deposited, into the Net WAC Rate Carryover Reserve
Account $1,000. In addition, the amount deposited in the Net WAC Rate Carryover
Reserve Account shall be increased by any payments received by the Trustee under
the Cap Contract and deposited into the Net WAC Rate Carryover Reserve Account
for the benefit of the Class A-2 Certificates.
On each Distribution Date as to which there is a Net WAC Rate
Carryover Amount payable to the Class A Certificates and/or the Mezzanine
Certificates, the Trustee has been directed by the Class CE Certificateholders
to, and therefore will, deposit into the Net WAC Rate Carryover Reserve Account
the amounts described in Section 4.01(a)(4)(xv), rather than distributing such
amounts to the Class CE Certificateholders. On each such Distribution Date, the
Trustee shall hold all such amounts for the benefit of the Holders of the Class
A Certificates and the Mezzanine Certificates, and will distribute such amounts
to the Holders of the Class A Certificates and/or the Mezzanine Certificates in
the amounts and priorities set forth in Section 4.01(d). If no Net WAC Rate
Carryover Amounts are payable on a Distribution Date, the Trustee shall deposit
into the Net WAC Rate Carryover Reserve Account on behalf of the Class CE
Certificateholders, from amounts otherwise distributable to the Class CE
Certificateholders, an amount such that when added to other amounts already on
deposit in the Net WAC Rate Carryover Reserve Account, the aggregate amount on
deposit therein is equal to $1,000.
For federal and state income tax purposes, the Class CE
Certificateholders will be deemed to be the owners of the Net WAC Rate Carryover
Reserve Account and all amounts deposited into the Net WAC Rate Carryover
Reserve Account (other than the initial deposit therein of $1,000) shall be
treated as amounts distributed by REMIC II to the Holders of the Class CE
Certificates. Upon the termination of the Trust Fund, or the payment in full of
the Class A Certificates and the Mezzanine Certificates, all amounts remaining
on deposit in the Net WAC Rate Carryover Reserve Account will be released by the
Trust Fund and distributed to the Class CE Certificateholders or their
designees. The Net WAC Rate Carryover Reserve Account will be part of the Trust
Fund but not part of any REMIC and any payments to the Holders of the Class A
Certificates or the Mezzanine Certificates of Net WAC Rate Carryover Amounts
will not be payments with respect to a "regular interest" in a REMIC within the
meaning of Code Section 860(G)(a)(1).
By accepting a Class CE Certificate, each Class CE Certificateholder
hereby agrees to direct the Trustee, and the Trustee hereby is directed, to
deposit into the Net WAC Rate Carryover Reserve Account the amounts described
above on each Distribution Date as to which there is any Net WAC Rate Carryover
Amount rather than distributing such amounts to the Class CE
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Certificateholders. By accepting a Class CE Certificate, each Class CE
Certificateholder further agrees that such direction is given for good and
valuable consideration, the receipt and sufficiency of which is acknowledged by
such acceptance.
At the direction of the Holders of a majority in Percentage Interest
in the Class CE Certificates, the Trustee shall direct any depository
institution maintaining the Net WAC Rate Carryover Reserve Account to invest the
funds in such account in one or more Permitted 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 or an Affiliate manages or advises such investment, 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 or an Affiliate manages or
advises such investment. If no investment direction of the Holders of a majority
in Percentage Interest in the Class CE Certificates with respect to the Net WAC
Rate Carryover Reserve Account is received by the Trustee, the Trustee shall
invest the funds in such account in Permitted Investments managed by the Trustee
or an Affiliate of the kind described in clause (vi) of the definition of
Permitted Investments. All income and gain earned upon such investment shall be
deposited into the Net WAC Rate Carryover Reserve Account.
For federal tax return and information reporting, the right of the
Class A Certificateholders and the Mezzanine Certificateholders to receive
payments from the Net WAC Rate Carryover Reserve Account in respect of any Net
Wac Rate Carryover Amount shall be assigned a value of zero.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates in the aggregate will represent the entire
beneficial ownership interest in the Mortgage Loans and all other assets
included in REMIC I.
The Certificates will be substantially in the forms annexed hereto as
Exhibits A-1 through A-11. The Certificates of each Class will be issuable in
registered form only, in denominations of authorized Percentage Interests as
described in the definition thereof. Each Certificate will share ratably in all
rights of the related Class.
Upon original issue, the Certificates shall be executed by the Trustee
and authenticated and delivered by the Trustee to or upon the order of the
Depositor. The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized signatory. Certificates bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Trustee shall bind the Trustee notwithstanding that such
individuals
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or any of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided herein
executed by the Trustee by manual signature, and such certificate of
authentication 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.
(b) The Class A Certificates and the Mezzanine Certificates shall
initially be issued as one or more Certificates held by the Book-Entry Custodian
or, if appointed to hold such Certificates as provided below, the Depository and
registered in the name of the Depository or its nominee and, except as provided
below, registration of such Certificates may not be transferred by the Trustee
except to another Depository that agrees to hold such Certificates for the
respective Certificate Owners with Ownership Interests therein. The Certificate
Owners shall hold their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided below, shall not be entitled to definitive, fully registered
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. The Trustee is hereby initially appointed as the
Book-Entry Custodian and hereby agrees to act as such in accordance herewith and
in accordance with the agreement that it has with the Depository authorizing it
to act as such. The Book-Entry Custodian may, and, if it is no longer qualified
to act as such, the Book- Entry Custodian shall, appoint, by a written
instrument delivered to the Depositor, the Servicer and the Trustee, any other
transfer agent (including the Depository or any successor Depository) to act as
Book-Entry Custodian under such conditions as the predecessor Book-Entry
Custodian and the Depository or any successor Depository may prescribe, provided
that the predecessor Book-Entry Custodian shall not be relieved of any of its
duties or responsibilities by reason of any such appointment of other than the
Depository. If the Trustee resigns or is removed in accordance with the terms
hereof, the Trustee, the successor trustee or, if it so elects, the Depository
shall immediately succeed to its predecessor's duties as Book-Entry Custodian.
The Depositor shall have the right to inspect, and to obtain copies of, any
Certificates held as Book-Entry Certificates by the Book-Entry Custodian.
The Trustee, the Servicer and the Depositor may for all purposes
(including the making of payments due on the Book-Entry Certificates) deal with
the Depository as the authorized representative of the Certificate Owners with
respect to the Book-Entry Certificates for the purposes of exercising the rights
of Certificateholders hereunder. The rights of Certificate Owners with respect
to the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Trustee may establish
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a reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (B) the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the Depository
or (iii) after the occurrence of a Servicer Event of Default, Certificate Owners
representing in the aggregate not less than 51% of the Ownership Interests of
the Book-Entry Certificates advise the Trustee through the Depository, in
writing, that the continuation of a book-entry system through the Depository is
no longer in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Book-Entry Custodian or the Depository, as applicable,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall cause the Definitive Certificates to be issued. Such
Definitive Certificates will be issued in minimum denominations of $25,000,
except that any beneficial ownership that was represented by a Book- Entry
Certificate in an amount less than $25,000 immediately prior to the issuance of
a Definitive Certificate shall be issued in a minimum denomination equal to the
amount represented by such Book-Entry Certificate. None of the Depositor, the
Servicer, the Trustee shall be liable for any delay in the delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Depository shall be
deemed to be imposed upon and performed by the Trustee, to the extent applicable
with respect to such Definitive Certificates, and the Trustee shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the provisions of
Section 8.11, a Certificate Register for the Certificates in which, subject to
such reasonable regulations as it may prescribe, the Trustee shall provide for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided.
(b) No transfer of any Class CE Certificate, Class P Certificate or
Residual Certificate shall be made unless that transfer is made pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(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 such a transfer of a Class CE
Certificate, Class P Certificate or Residual Certificate is to be made without
registration or qualification (other than in connection with the initial
transfer of any such Certificate by the Depositor to an affiliate of the
Depositor), the Trustee shall require receipt of: (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Certificateholder desiring to effect the transfer and
from such Certificateholder's prospective transferee, substantially in the forms
attached hereto as Exhibit F-1; and (ii) in all other cases, an Opinion of
Counsel satisfactory to it that such transfer may be made without such
registration or qualification (which
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Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Servicer in its capacity as such or any
Sub-Servicer), together with copies of the written certification(s) of the
Certificateholder desiring to effect the transfer and/or such
Certificateholder's prospective transferee upon which such Opinion of Counsel is
based, if any. None of the Depositor, the Servicer or the Trustee is obligated
to register or qualify any such Certificates under the 1933 Act or any other
securities laws or to take any action not otherwise required under this
Agreement to permit the transfer of such Certificates without registration or
qualification. Any Certificateholder desiring to effect the transfer of any such
Certificate shall, and does hereby agree to, indemnify the Trustee, the
Depositor and the 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.
(c) No transfer of a Class CE Certificate, Class P Certificate or
Residual Certificate or any interest therein shall be made to any Plan subject
to ERISA or Section 4975 of the Code, any Person acting, directly or indirectly,
on behalf of any such Plan or any Person acquiring such Certificates with "Plan
Assets" of a Plan within the meaning of the Department of Labor regulation
promulgated at 29 C. F. R. ss. 2510.3-101 ("Plan Assets"), as certified by such
transferee in the form of Exhibit G, unless the Depositor, the Trustee and the
Servicer are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Trustee and the Servicer that the purchase of
such Certificates is permissible under applicable law, will not constitute or
result in any prohibited transaction under ERISA or Section 4975 of the Code and
will not subject the Depositor, the Servicer, the NIMS Insurer, the Trustee or
the Trust Fund to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Servicer, the Trustee or the Trust Fund. Neither an
Opinion of Counsel nor any certification will be required in connection with the
initial transfer of any such Certificate by the Depositor to an affiliate of the
Depositor (in which case, the Depositor or any affiliate thereof shall have
deemed to have represented that such affiliate is not a Plan or a Person
investing Plan Assets) and the Trustee shall be entitled to conclusively rely
upon a representation (which, upon the request of the Trustee, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the Depositor.
Each beneficial owner of a Mezzanine Certificates or any interest
therein shall be deemed to have represented, by virtue of its acquisition or
holding of that certificate or interest therein, that either (i) it is not a
Plan investor, (ii) it has acquired and is holding such Mezzanine Certificates
in reliance on the Underwriters' Exemption, and that it understands that there
are certain conditions to the availability of the Underwriters' Exemption,
including that the Mezzanine Certificates must be rated, at the time of
purchase, not lower than "BBB-" (or its equivalent) by Fitch, Xxxxx'x or S&P or
(iii) (1) it is an insurance company, (2) the source of funds used to acquire or
hold the certificate or interest therein is an "insurance company general
account," as such term is defined in PTCE 95-60, and (3) the conditions in
Sections I and III of PTCE 95-60 have been satisfied.
If any Mezzanine Certificate, Class CE Certificate, Class P
Certificate or Residual Certificate or any interest therein is acquired or held
in violation of the provisions of the preceding two paragraphs, the next
preceding permitted beneficial owner will be treated as the beneficial owner of
that Certificate retroactive to the date of transfer to the purported beneficial
owner. Any purported
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beneficial owner whose acquisition or holding of any such Certificate or
interest therein was effected in violation of the provisions of the preceding
two paragraphs shall indemnify and hold harmless the Depositor, the Servicer,
the NIMS Insurer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result of
that acquisition or holding.
(d)(i) Each Person who has or who acquires any Ownership Interest in a
Residual 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 authorized the Trustee or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. The rights of each Person acquiring any Ownership Interest in a
Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Residual Certificate, the Trustee shall require delivery to it, and
shall not register the Transfer of any Residual Certificate until its
receipt of, an affidavit and agreement (a "Transfer Affidavit and
Agreement," in the form attached hereto as Exhibit F-2) from the proposed
Transferee, in form and substance satisfactory to the Trustee, representing
and warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted Transferee, that
for so long as it retains its Ownership Interest in a Residual Certificate,
it will endeavor to remain a Permitted Transferee, and that it has reviewed
the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if a Responsible Officer
of the Trustee who is assigned to this transaction has actual knowledge
that the proposed Transferee is not a Permitted Transferee, no Transfer of
an Ownership Interest in a Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (x) to require a Transfer Affidavit and
Agreement in the form attached hereto as Exhibit F-2 from any other Person
to whom such Person attempts to transfer its Ownership Interest in a
Residual Certificate and (y) not to transfer its Ownership Interest unless
it provides a Transferor Affidavit (in the form attached hereto as Exhibit
F-2) to the Trustee stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
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(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf of, a "pass-through
interest holder."
(ii) The Trustee will register the Transfer of any Residual
Certificate only if it shall have received the Transfer Affidavit and Agreement
and all of such other documents as shall have been reasonably required by the
Trustee as a condition to such registration. In addition, no Transfer of a
Residual Certificate shall be made unless the Trustee shall have received a
representation letter from the Transferee of such Certificate to the effect that
such Transferee is a Permitted Transferee.
(iii)(A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Permitted Transferee shall be restored, to
the extent permitted by law, to all rights as holder thereof retroactive to
the date of registration of such Transfer of such Residual Certificate. The
Trustee shall be under no liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on such Certificate to the
holder thereof or for taking any other action with respect to such holder
under the provisions of this Agreement.
(B) If any purported Transferee shall become a holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d) and to
the extent that the retroactive restoration of the rights of the holder of
such Residual Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have the right,
without notice to the holder or any prior holder of such Residual
Certificate, to sell such Residual Certificate to a purchaser selected by
the Trustee on such terms as the Trustee may choose. Such purported
Transferee shall promptly endorse and deliver each Residual Certificate in
accordance with the instructions of the Trustee. Such purchaser may be the
Trustee itself or any Affiliate of the Trustee. The proceeds of such sale,
net of the commissions (which may include commissions payable to the
Trustee or its Affiliates), expenses and taxes due, if any, will be
remitted by the Trustee to such purported Transferee. The terms and
conditions of any sale under this clause (iii)(B) shall be determined in
the sole discretion of the Trustee, and the Trustee shall not be liable to
any Person having an Ownership Interest in a Residual Certificate as a
result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all information necessary to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of
such Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common Trust, partnership, trust, estate
or organization described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Certificate having as among its record holders at any
time
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any Person which is a Disqualified Organization. Reasonable compensation for
providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02(d) set forth prior to this
subsection (v) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the NIMS Insurer at the expense of
the party seeking to modify, add to or eliminate any such provision the
following:
(A) written notification from each Rating Agency to the effect that
the modification, addition to or elimination of such provisions will not
cause such Rating Agency to downgrade its then-current ratings of any Class
of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the NIMS Insurer, to the effect that such modification of,
addition to or elimination of such provisions will not cause any Trust
REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC to
be subject to an entity-level tax caused by the Transfer of any Residual
Certificate to a Person that is not a Permitted Transferee or a Person
other than the prospective transferee to be subject to a REMIC-tax caused
by the Transfer of a Residual Certificate to a Person that is not a
Permitted Transferee.
The Trustee shall forward to the NIMS Insurer a copy of the items
delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the
Trustee maintained for such purpose pursuant to Section 8.11, the Trustee shall
execute, authenticate and deliver, in the name of the designated Transferee or
Transferees, one or more new Certificates of the same Class of a like aggregate
Percentage Interest.
(f) At the option of the Holder thereof, any Certificate may be
exchanged for other Certificates of the same Class with authorized denominations
and a like aggregate Percentage Interest, upon surrender of such Certificate to
be exchanged at any office or agency of the Trustee maintained for such purpose
pursuant to Section 8.11. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, authenticate and deliver, the Certificates
which the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Trustee) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge to the Certificateholders shall be made for any
transfer or exchange of Certificates, but the Trustee 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.
(h) All Certificates surrendered for transfer and exchange shall be
canceled and destroyed by the Trustee in accordance with its customary
procedures.
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SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate, and (ii) there is delivered to the Trustee and the NIMS
Insurer such security or indemnity as may be required by it to save it harmless,
then, in the absence of actual knowledge by the Trustee that such Certificate
has been acquired by a bona fide purchaser or the Trustee shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like denomination and Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee 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) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the applicable REMIC created hereunder, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Depositor, the Servicer, the NIMS Insurer, the Trustee and any
agent of any of them may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 4.01 and for all other purposes whatsoever,
and none of the Depositor, the Servicer, the NIMS Insurer, the Trustee or any
agent of any of them shall be affected by notice to the contrary.
SECTION 5.05. Certain Available Information.
On or prior to the date of the first sale of any Class CE Certificate,
Class P Certificate or Residual Certificate to an Independent third party, the
Depositor shall provide to the Trustee ten copies of any private placement
memorandum or other disclosure document used by the Depositor in connection with
the offer and sale of such Certificates. In addition, if any such private
placement memorandum or disclosure document is revised, amended or supplemented
at any time following the delivery thereof to the Trustee, the Depositor
promptly shall inform the Trustee of such event and shall deliver to the Trustee
ten copies of the private placement memorandum or disclosure document, as
revised, amended or supplemented. The Trustee shall maintain at its Corporate
Trust Office and shall make available free of charge during normal business
hours for review by any Holder of a Certificate or any Person identified to the
Trustee as a prospective transferee of a Certificate, originals or copies of the
following items: (i) in the case of a Holder or prospective transferee of a
Class CE Certificate, Class P Certificate or Residual Certificate, the related
private placement memorandum or other disclosure document relating to such Class
of Certificates, in the form most recently provided to the Trustee; and (ii) in
all cases, (A) this Agreement and any amendments hereof entered into pursuant to
Section 11.01, (B) all monthly statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trustee since the Closing Date
pursuant to Section 10.01(h), (D) any and all Officers' Certificates delivered
to the Trustee by the Servicer since the Closing Date to
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evidence the Servicer's determination that any Advance or Servicing Advance was,
or if made, would be a Nonrecoverable Advance or Nonrecoverable Servicing
Advance, respectively, and (E) any and all Officers' Certificates delivered to
the Trustee by the Servicer since the Closing Date pursuant to Section 4.04(a).
Copies and mailing of any and all of the foregoing items will be available from
the Trustee upon request at the expense of the Person requesting the same.
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ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01. Liability of the Depositor and the Servicer.
The Depositor and the Servicer each shall be liable in accordance
herewith only to the extent of the obligations specifically imposed by this
Agreement upon them in their respective capacities as Depositor and Servicer and
undertaken hereunder by the Depositor and the Servicer herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the
Servicer.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation. Subject to the following paragraphs, the
Servicer will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation. The
Depositor and the Servicer each will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor or the Servicer may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Depositor or the Servicer shall be a party, or any Person succeeding
to the business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, 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 successor or surviving Person to the Servicer shall be qualified to service
mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac; and provided further that
the Rating Agencies' ratings of the Class A Certificates and the Mezzanine
Certificates in effect immediately prior to such merger or consolidation will
not be qualified, reduced or withdrawn as a result thereof (as evidenced by a
letter to such effect from the Rating Agencies).
Notwithstanding the provisions of Section 6.04 herein to the contrary,
in the event that the Servicer determines that it will no longer engage in the
business of servicing mortgage loans, the Servicer may assign its rights under
this Agreement, provided that, (i) the Depositor in its sole discretion and the
NIMS Insurer have consented, (ii) the Rating Agencies' ratings of the Offered
Certificates and each class of notes issued pursuant to the Indenture (without
regard to any insurance policies) in effect immediately prior to such action
will not be qualified, reduced or withdrawn as a result thereof (as evidenced by
a letter to such effect from the Rating Agencies) and (iii) the Servicer shall
be liable for all Servicing Transfer Costs, provided further, that the Servicer
shall indemnify and hold the Trust Fund, the Trustee, the Depositor, and
sub-servicer, the successor servicer, the NIMS Insurer and each
Certificateholder 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 Trust Fund, the Trustee, the Depositor, and
sub-servicer, the successor
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servicer, the NIMS Insurer and each Certificateholder may sustain in any way
related such assignment. No assignment by the Servicer shall become effective
until a successor servicer acceptable to the Depositor and the NIMS Insurer
shall have assumed the Servicer's responsibilities, duties, liabilities (other
than those liabilities arising prior to the appointment of such successor) and
obligations under this Agreement. Any such assignment shall not relieve the
Servicer of responsibility for any of the obligations specified herein except to
the extent that such responsibilities have been expressly assumed by the
successor servicer.
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer
and Others.
(a) The Servicer (except the Trustee if it is required to succeed the
Servicer hereunder) indemnifies and holds the NIMS Insurer and each
Certificateholder 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 NIMS Insurer and any Certificateholder 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 terms of this Agreement.
The Servicer shall immediately notify the NIMS Insurer and each
Certificateholder 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 NIMS Insurer
and/or the Certificateholder in respect of such claim. The provisions of this
Section 6.03 shall survive the termination of this Agreement and the payment of
the outstanding Certificates.
(b) None of the Depositor, the NIMS Insurer, 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 Fund 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, the Servicer or any such person
against any breach of warranties, representations or covenants made herein, or
against any specific liability imposed on the Servicer pursuant hereto, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder or a breach of
a representation or warranty hereunder or, in the case of the Servicer, a breach
of the Servicing Standard. The Depositor, the NIMS Insurer and the Servicer and
any director, officer, employee or agent of the Depositor, the NIMS Insurer or
the Servicer may rely in good faith on any document of any kind which, PRIMA
FACIE, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the NIMS Insurer, the Servicer and any
director, officer, employee or agent of the Depositor, the NIMS Insurer or the
Servicer shall be indemnified and held harmless by the Trust Fund 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
relating to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) or any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. Neither the Depositor, the NIMS
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Insurer nor the Servicer shall be under any obligation to appear in, prosecute
or defend any legal action unless such action is related to its respective
duties under this Agreement and, in its opinion, does not involve it in any
expense or liability; provided, however, that each of the Depositor, the NIMS
Insurer and the Servicer may in its discretion undertake any such action which
it may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, unless the Depositor or the Servicer acts without the
consent of Holders of Certificates entitled to at least 51% of the Voting
Rights, the legal expenses and costs of such action and any liability resulting
therefrom (except any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder) shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the NIMS Insurer and the Servicer shall be entitled to be reimbursed
therefor from the Collection Account as and to the extent provided in Section
3.11, any such right of reimbursement being prior to the rights of the
Certificateholders to receive any amount in the Collection Account.
SECTION 6.04. Limitation on Resignation of the Servicer.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination pursuant to the
preceding sentence permitting the resignation of the Servicer shall be evidenced
by an Opinion of Counsel to such effect obtained at the expense of the Servicer
and delivered to the Trustee and the NIMS Insurer. No resignation of the
Servicer shall become effective until the Trustee or a successor servicer
acceptable to the NIMS Insurer shall have assumed the Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement. 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.
Except as expressly provided herein, the Servicer shall not assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Servicer hereunder. The foregoing prohibition on assignment shall not
prohibit the Servicer from designating a Sub-Servicer as payee of any
indemnification amount payable to the Servicer hereunder; provided, however,
that as provided in Section 3.06 hereof, no Sub-Servicer shall be a third-party
beneficiary hereunder and the parties hereto shall not be required to recognize
any Sub-Servicer as an indemnitee under this Agreement. If, pursuant to any
provision hereof, the duties of the Servicer are transferred to a successor
servicer, the entire amount of the Servicing Fee and other compensation payable
to the Servicer pursuant hereto shall thereafter be payable to such successor
servicer.
SECTION 6.05. Rights of the Depositor in Respect of the Servicer.
The Servicer shall afford (and any Sub-Servicing Agreement shall
provide that each Sub-Servicer shall afford) the Depositor, the NIMS Insurer and
the Trustee, upon reasonable notice, during normal business hours, access to all
records maintained by the Servicer (and any such Sub-Servicer) in respect of the
Servicer's rights and obligations hereunder and access to officers of
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the Servicer (and those of any such Sub-Servicer) responsible for such
obligations. Upon request, the Servicer shall furnish to the Depositor, the NIMS
Insurer and the Trustee its (and any such Sub-Servicer's) most recent financial
statements and such other information relating to the Servicer's capacity to
perform its obligations under this Agreement as it possesses (and that any such
Sub- Servicer possesses). To the extent such information is not otherwise
available to the public, the Depositor, the NIMS Insurer and the Trustee shall
not disseminate any information obtained pursuant to the preceding two sentences
without the Servicer's written consent, except as required pursuant to this
Agreement or to the extent that it is appropriate to do so (i) in working with
legal counsel, auditors, taxing authorities or other governmental agencies or
(ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction or
decree of any court or governmental authority having jurisdiction over the
Depositor and the Trustee or the Trust Fund, and in any case, the Depositor, the
NIMS Insurer or the Trustee as the case may be, shall use its best efforts to
assure the confidentiality of any such disseminated non-public information. The
Depositor may, but is not obligated to, enforce the obligations of the Servicer
under this Agreement and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Servicer under this
Agreement or exercise the rights of the Servicer under this Agreement; provided
that the Servicer shall not be relieved of any of its obligations under this
Agreement by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Servicer and is not obligated to supervise the performance
of the Servicer under this Agreement or otherwise.
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ARTICLE VII
DEFAULT
SECTION 7.01. Servicer Events of Default.
(a) "Servicer Event of Default," wherever used herein, means any one
of the following events:
(i) any failure by the Servicer to remit to the Trustee for
distribution to the Certificateholders any payment (other than an Advance
required to be made from its own funds on any Servicer Remittance Date
pursuant to Section 4.03) required to be made under the terms of the
Certificates and this Agreement which continues unremedied for a period of
one Business Day after 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 (in which case notice shall be provided by
telecopy), or to the Servicer, the Depositor and the Trustee by the NIMS
Insurer or the Holders of Certificates entitled to at least 25% of the
Voting Rights; or
(ii) any failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on
the part of the Servicer contained in this Agreement, or the breach by the
Servicer of any representation and warranty contained in Section 2.05,
which continues unremedied for a period of 30 days (or if such failure or
breach cannot be remedied within 30 days, then such remedy shall have been
commenced within 30 days and diligently pursued thereafter; provided,
however, that in no event shall such failure or breach be allowed to exist
for a period of greater than 90 days) after the earlier of (i) the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Depositor, the Trustee or to
the Servicer, the Depositor and the Trustee by the NIMS Insurer or the
Holders of Certificates entitled to at least 25% of the Voting Rights and
(ii) actual knowledge of such failure by a Servicing Officer of the
Servicer; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceeding, 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 or unstayed for a period of 90 days; or
(iv) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to it or of
or relating to all or substantially all of its property; or
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(v) 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
(vi) [reserved]; or
(vii) any failure of the Servicer to make any Advance on any Servicer
Remittance Date required to be made from its own funds pursuant to Section
4.03 which continues unremedied until 5:00 p.m. New York time on the
Distribution Date.
If a Servicer Event of Default described in clauses (i) through (vi)
of this Section shall occur, then, and in each and every such case, so long as
such Servicer Event of Default shall not have been remedied, the Depositor or
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of Voting Rights or the NIMS Insurer, the Trustee
shall, by notice in writing to the Servicer (and to the Depositor if given by
the Trustee or to the Trustee if given by the Depositor), terminate all of the
rights and obligations of the Servicer in its capacity as Servicer under this
Agreement, to the extent permitted by law, and in and to the Mortgage Loans and
the proceeds thereof. If a Servicer Event of Default described in clause (vii)
hereof shall occur and shall not have been remedied by 5:00 p.m. on the related
Distribution Date, the Trustee shall be obligated to make such Advance and, then
so long as such Servicer Event of Default shall not have been remedied during
the applicable time period set forth in clause (vii) above (including the
reimbursement to the Trustee by the Master Servicer, with interest thereon at
the Prime Rate, for any Advance made), the Trustee shall, by notice in writing
to the Servicer, the Depositor and the NIMS Insurer, terminate all of the rights
and obligations of the Servicer in its capacity as Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof. On or after the
receipt by the Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Certificates (other
than as a Holder of any Certificate) or the Mortgage Loans or otherwise, shall
pass to and be vested in the Trustee pursuant to and under this Section, and,
without limitation, the Trustee is hereby authorized and empowered, as
attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the
expense of the Servicer, any and all documents and other instruments and to do
or accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Servicer agrees to promptly (and in any event no later than ten
Business Days subsequent to such notice) provide the Trustee with all documents
and records requested by it to enable it to assume the Servicer's functions
under this Agreement, and to cooperate with the Trustee in effecting the
termination of the Servicer's responsibilities and rights under this Agreement,
including, without limitation, the transfer within one Business Day to the
Trustee for administration by it of all cash amounts which at the time shall be
or should have been credited by the Servicer to the Collection Account held by
or on behalf of the Servicer, the Distribution Account or any REO Account or
Escrow Account held by or on behalf of the Servicer or thereafter be received
with respect to the Mortgage Loans or any REO Property serviced by the Servicer
(provided, however, that the Servicer shall continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances or otherwise, and shall
continue to be entitled to the benefits of Section 6.03, notwithstanding any
such termination, with respect to events occurring prior to such
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termination). For purposes of this Section 7.01, the Trustee shall not be deemed
to have knowledge of a Servicer Event of Default unless a Responsible Officer of
the Trustee assigned to and working in the Trustee's Corporate Trust Office has
actual knowledge thereof or unless written notice of any event which is in fact
such a Servicer Event of Default is received by the Trustee and such notice
references the Certificates, the Trust Fund or this Agreement.
SECTION 7.02. Trustee to Act; Appointment of Successor.
(a)(1) From the time the Servicer (and the Trustee, if notice is sent
by the Holders of Certificates entitled to at least 51% of Voting Rights or the
NIMS Insurer) receives a notice of termination, the Trustee (or such other
successor Servicer as is acceptable to the NIMS Insurer) 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 all the
responsibilities, duties and liabilities relating thereto and arising thereafter
shall be assumed by the Trustee (except for any representations or warranties of
the Servicer under this Agreement, the responsibilities, duties and liabilities
contained in Section 2.05 (other than with respect to Section 2.05(x)) and the
obligation to deposit amounts in respect of losses pursuant to Section 3.12) by
the terms and provisions hereof; provided, however, the Trustee shall
immediately assume the Servicer's obligations to make Advances pursuant to
Section 4.03; provided, further, however, that if the Trustee is prohibited by
law or regulation from obligating itself to make advances regarding delinquent
mortgage loans, then the Trustee shall not be obligated to make Advances
pursuant to Section 4.03; and provided further, that any failure to perform such
duties or responsibilities caused by the Servicer's failure to provide
information required by Section 7.01 shall not be considered a default by the
Trustee as successor to the Servicer hereunder. It is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the transition of servicing obligations is fully
effective. As compensation therefor, the Trustee shall be entitled to the
Servicing Fee and all funds relating to the Mortgage Loans to which the Servicer
would have been entitled if it had continued to act hereunder. Notwithstanding
the above and subject to Section 7.02(a)(2) below, the Trustee if it shall be
unwilling to so act, or shall, if it is unable to so act or if it is prohibited
by law from making advances regarding delinquent mortgage loans or if the
Holders of Certificates entitled to at least 51% of the Voting Rights or the
NIMS Insurer so request in writing to the Trustee, promptly appoint or petition
a court of competent jurisdiction to appoint, an established mortgage loan
servicing institution acceptable to each Rating Agency and the NIMS Insurer and
having a net worth of not less than $15,000,000, as the successor to the
Servicer under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer under this Agreement.
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 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 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 3.14 or to indemnify the NIMS Insurer pursuant to
Section 6.03, nor shall any successor Servicer be liable for any acts or
omissions of the predecessor Servicer or
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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. All reasonable Servicing Transfer
Costs shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs, and if such predecessor Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor Servicer
or the Trustee (in which case the successor Servicer or the Trustee, as
applicable, shall be entitled to reimbursement therefor from the assets of the
Trust Fund pursuant to Section 3.11(b)).
(2) No appointment of a successor to the Servicer under this Agreement
shall be effective until the assumption by the successor of all of the
Servicer's responsibilities, duties and liabilities hereunder. In connection
with such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Servicer as such
hereunder. The Depositor, the Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Pending appointment of a successor to the Servicer under this
Agreement or the Trustee shall act in such capacity as hereinabove provided.
Any successor to the Servicer, including the Trustee, 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 3.14.
(b) In connection with the termination or resignation of the Servicer
hereunder, either (i) the successor servicer, including the Trustee if the
Trustee is acting as successor Servicer, shall represent and warrant that it is
a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, in which case the
predecessor Servicer shall cooperate with the successor Servicer in causing MERS
to revise its records to reflect the transfer of servicing to the successor
Servicer as necessary under MERS' rules and regulations, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to execute
and deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS(R)
System to the successor Servicer. The predecessor Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Servicer shall bear any and all fees of MERS, costs of preparing any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this Section 7.02(b).
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SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of the Servicer pursuant to Section 7.01
above or any appointment of a successor to the Servicer pursuant to Section 7.02
above, the Trustee shall give prompt written notice thereof to
Certificateholders and the NIMS Insurer at their respective addresses appearing
in the Certificate Register.
(b) Not later than the later of 60 days after the occurrence of any
event, which constitutes or which, with notice or lapse of time or both, would
constitute a Servicer Event of Default or five days after a Responsible Officer
of the Trustee becomes aware of the occurrence of such an event, the Trustee
shall transmit by mail to the NIMS Insurer and to all Holders of Certificates
notice of each such occurrence, unless such default or Servicer Event of Default
shall have been cured or waived.
SECTION 7.04. Waiver of Servicer Events of Default.
The Holders representing at least 66% of the Voting Rights (with the
consent of the NIMS Insurer) evidenced by all Classes of Certificates affected
by any default or Servicer Event of Default hereunder may waive such default or
Servicer Event of Default; provided, however, that a default or Servicer Event
of Default under clause (i) or (vii) of Section 7.01 may be waived only by all
of the Holders of the Regular Certificates (with the consent of the NIMS
Insurer). Upon any such waiver of a default or Servicer Event of Default, such
default or Servicer Event of Default shall cease to exist and shall be deemed to
have been remedied for every purpose hereunder. No such waiver shall extend to
any subsequent or other default or Servicer Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notice of any such
waiver shall be given by the Trustee to the Rating Agencies and the NIMS
Insurer.
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.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee
The Trustee prior to the occurrence of a Servicer Event of Default and
after the curing of all Servicer Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. During a Servicer Event of Default, 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. Any permissive right of the Trustee enumerated in this Agreement shall
not be construed as a duty.
The Trustee upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to it, 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. If any such instrument is found not to conform
to the requirements of this Agreement in a material manner, it shall take such
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to its satisfaction, it will provide notice thereof
to the Certificateholders and the NIMS Insurer.
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 Default, and after
the curing of all such Servicer Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall 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 that conform to
the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of it unless it shall be proved that it was negligent in
ascertaining the pertinent facts; and
(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 NIMS Insurer or the Holders of
Certificates entitled to at least 25% of the Voting Rights relating to the
time, method and place of conducting any proceeding for any remedy
available to it or exercising any trust or power conferred upon it under
this Agreement.
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SECTION 8.02. Certain Matters Affecting the Trustee
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) The Trustee shall not be under any obligation to exercise any of
the trusts 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 any of the Certificateholders or the NIMS
Insurer, pursuant to the provisions of this Agreement, unless such
Certificateholders or the NIMS Insurer, as applicable, shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of a Servicer Event of Default (which has not been cured or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to 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;
(iv) 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;
(v) Prior to the occurrence of a Servicer Event of Default hereunder
and after the curing of all Servicer Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
the NIMS Insurer or the Holders of Certificates entitled to at least 25% of
the Voting Rights; 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 such
Certificateholders, the Trustee may require reasonable indemnity against
such expense, or liability from such Certificateholders or the NIMS
Insurer, as applicable, as a condition to taking any such action;
(vi) 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; provided, that the Trustee shall not be responsible for any
negligence or willful misconduct on the part of the Custodian or any such
agents or attorneys appointed by it with due care; and
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(vii) The Trustee shall not be personally liable for any loss
resulting from the investment of funds held in the Collection Account at
the direction of the Servicer pursuant to Section 3.12.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(c) The Trustee is hereby directed by the Depositor to execute and
deliver the Cap Contract on behalf of the Trust Fund in the form presented to it
by the Depositor.
SECTION 8.03. Trustee not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
signature of the Trustee, the authentication of the Trustee on the Certificates,
the acknowledgments of the Trustee contained in Article II and the
representations and warranties of the Trustee in Section 8.12) shall be taken as
the statements of the Depositor and the Trustee shall not assume any
responsibility for their correctness. The Trustee shall not make any
representations or warranties as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 8.12) or of the
Certificates (other than the signature of the Trustee, and authentication of the
Trustee on the Certificates) or of any Mortgage Loan or related document or of
MERS or the MERS(R) System. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Servicer, other than any funds held
by or on behalf of the Trustee in accordance with Section 3.10.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual capacity or any other capacity may
become the owner or pledgee of Certificates with the same rights it would have
if it were not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee shall be entitled to withdraw from the Distribution
Account, pursuant to Section 3.11(b), on each Distribution Date and pay to
itself the Trustee Fee. The Trustee and any director, officer, employee or agent
of the Trustee, shall be indemnified by the Trust Fund and held harmless against
any loss, liability or expense (not including expenses, disbursements and
advances incurred or made by the Trustee including the compensation and the
expenses and disbursements of its agents and counsel, in the ordinary course of
the Trustee's performance in accordance with the provisions of this Agreement)
incurred by the Trustee arising out of or in connection with the acceptance or
administration of its obligations and duties under this Agreement up to a limit
of $600,000 per calender year, other than any loss, liability or expense (i)
resulting from any breach of the Servicer's obligations in connection with this
Agreement, (ii) that constitutes a specific liability
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of the Trustee pursuant to Section 10.01(g) or (iii) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder as a result of a breach of the Trustee's
obligations under Article X hereof. It is understood by the parties hereto that
a "claim" as used in the preceding sentence includes any claim for
indemnification made by the Custodian under Section 11 of the Custodial
Agreement. The Servicer agrees to indemnify the Trustee, from, and hold it
harmless against, any loss, liability or expense arising in respect of any
breach by the Servicer of its obligations in connection with this Agreement.
Such indemnity shall survive the termination or discharge of this Agreement and
the resignation or removal of the Trustee. Any payment hereunder made by the
Servicer to the Trustee shall be from the Servicer's own funds, without
reimbursement from REMIC I therefor. Notwithstanding anything herein to the
contrary, the Trustee shall be reimbursed from the Trust Fund for all Servicing
Transfer Costs without regard to the annual limitation.
SECTION 8.06. Eligibility Requirements for Trustee
The Trustee hereunder shall at all times be a corporation or an
association (other than the Depositor, the Originator, the Seller, the Servicer
or any Affiliate of the foregoing) organized and doing business under the laws
of any state or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 (or a member of a bank holding company whose capital and
surplus is at least $50,000,000) and subject to supervision or examination by
federal or state authority. If such corporation or association publishes reports
of conditions at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of conditions so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee
The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice thereof to the Depositor, the NIMS
Insurer, the Servicer and to the Certificateholders. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor trustee
acceptable to the NIMS Insurer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Certificateholders,
the Trustee and the Servicer by the Depositor. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the NIMS Insurer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer
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shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Depositor
or the NIMS Insurer may remove the and appoint a successor trustee acceptable to
the NIMS Insurer by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the Certificateholders, the Trustee and the
Servicer by the Depositor.
The Holders of Certificates entitled to at least 51% of the Voting
Rights (or the NIMS Insurer upon failure of the Trustee to perform its
obligations hereunder) may at any time remove the Trustee and appoint a
successor trustee acceptable to the NIMS Insurer by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Depositor, one complete set to the Trustee so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Certificateholders and the Servicer by the Depositor.
Any resignation or removal of the Trustee and appointment of a
successor trustee, pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08. Notwithstanding the foregoing, in the event the
Trustee is unable to continue to perform its obligations pursuant to the terms
of this Agreement prior to the appointment of a successor, the Trustee shall be
obligated to perform such obligations until a new trustee is appointed. Such
performance shall be without prejudice to any claim by a party hereto or
beneficiary hereof resulting from the Trustee's breach of its obligations
hereunder.
SECTION 8.08. Successor Trustee
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the NIMS Insurer and 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 the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements to the extent
held by it hereunder, as well as all moneys, held by it hereunder (other than
any Mortgage Files at the time held by the Custodian, which Custodian shall
become the agent of any successor trustee hereunder), and the Depositor and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations.
No successor trustee shall accept appointment as provided in this
Section 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 a downgrading of any Class of Certificates
by any Rating Agency, as evidenced by a letter from each Rating Agency.
Upon acceptance of appointment by a successor trustee, as provided in
this Section, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of
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Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation or association into which either the Trustee may be
merged or converted or with which it may be consolidated or any corporation or
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or association succeeding to the
business of the Trustee shall be the successor of the Trustee hereunder,
provided such corporation or association shall be eligible under the provisions
of Section 8.06, 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 hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of REMIC I or property securing the same may at the time be located, the Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Trustee and the NIMS Insurer to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of REMIC I, and to vest in such Person or
Persons, in such capacity, such title to REMIC I, or any part thereof, and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. Any such co-trustee or separate trustee shall be subject to the
written approval of the NIMS Insurer. If the NIMS Insurer shall not have joined
in such appointment within 15 days after the receipt by it of a request to do
so, 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 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 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, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed by the Trustee (whether as
Trustee hereunder or as successor to a defaulting 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 REMIC I or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the 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 trust conferred, shall be vested with the estates or property specified
in its instrument of appointment,
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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 NIMS Insurer.
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 or co-trustee.
SECTION 8.11. Appointment of Office or Agency; Appointment of
Custodian.
The Trustee will appoint an office or agency in the City of St. Xxxx,
Minnesota where the Certificates may be surrendered for registration of transfer
or exchange, and presented for final distribution, and where notices and demands
to or upon the Trustee in respect of the Certificates and this Agreement may be
served.
The Trustee may, with the consent of the Depositor, the Servicer and
the NIMS Insurer, appoint the Custodian to hold all or a portion of the Mortgage
Files as agent for the Trustee, by entering into the Custodial Agreement. The
appointment of the Custodian may at any time be terminated and a substitute
Custodian appointed therefor upon the reasonable request of the Servicer or the
NIMS Insurer to the Trustee, the consent to which shall not be unreasonably
withheld. The Trustee initially appoints Xxxxx Fargo Bank Minnesota, National
Association as Custodian, and the Depositor and the Servicer each consent to
such appointment. Subject to Article VIII hereof, the Trustee agrees to comply
with the terms of the Custodial Agreement and to enforce the terms and
provisions thereof against the Custodian for the benefit of the
Certificateholders having an interest in any Mortgage File held by the
Custodian. The Custodian shall be a depository institution or trust company
subject to supervision by federal or state authority, shall have combined
capital and surplus of at least $10,000,000 and shall be qualified to do
business in the jurisdiction in which it holds any Mortgage File. Subject to
Section 8.02(a), in no event shall the appointment of the Custodian pursuant to
the Custodial Agreement diminish the obligations of the Trustee hereunder.
SECTION 8.12. Representations and Warranties.
The Trustee hereby represents and warrants to the Servicer and the
Depositor, as of the Closing Date, that:
(i) It is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of
America.
(ii) The execution and delivery of this Agreement by it, and the
performance and compliance with the terms of this Agreement by it, will not
violate its articles of association or bylaws or constitute a default (or
an event which, with notice or lapse of time, or both,
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would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable
to it or any of its assets.
(iii) It has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors'rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) It is not in violation of, and its execution and delivery of this
Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
its good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of it to perform its obligations under this
Agreement or its financial condition.
(vi) No litigation is pending or, to the best of its knowledge,
threatened against it, which would prohibit it from entering into this
Agreement or, in its good faith reasonable judgment, is likely to
materially and adversely affect either the ability of it to perform its
obligations under this Agreement or its financial condition.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Servicer and the
Trustee (other than the obligations of the Servicer to the Trustee pursuant to
Section 8.05 and of the Servicer to make remittances to the Trustee and the
Trustee to make payments in respect of the REMIC I Regular Interests and the
Classes of Certificates as hereinafter set forth) shall terminate upon payment
to the Certificateholders and the deposit of all amounts held by or on behalf of
the Trustee and required hereunder to be so paid or deposited on the
Distribution Date coinciding with or following the earlier to occur of (i) the
purchase by the Terminator (as defined below) of all Mortgage Loans and each REO
Property remaining in REMIC I and (ii) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof. Subject
to Section 3.10 hereof, the purchase by the Terminator of all Mortgage Loans and
each REO Property remaining in REMIC I shall be at a price (the "Termination
Price") equal to the aggregate fair market value of all of the assets of REMIC I
(as determined by the Terminator and the Trustee, as of the close of business on
the third Business Day next preceding the date upon which notice of any such
termination is furnished to Certificateholders pursuant to the third paragraph
of this Section 9.01) plus accrued and unpaid interest thereon at the weighted
average of the Mortgage Rates through the end of the Due Period preceding the
final Distribution Date plus unreimbursed Servicing Advances, Advances, any
unpaid Servicing Fees allocable to such Mortgage Loans and REO Properties, any
accrued and unpaid Net WAC Rate Carryover Amount; provided, however, such option
may only be exercised if (i) the Termination Price is sufficient to pay all
interest accrued on, as well as amounts necessary to retire the principal
balance of, each class of notes issued pursuant to the Indenture and any
remaining amounts owed to the trustee under the Indenture and the NIMS Insurer
on the date such notes are retired and (ii) the fair market value of the
Mortgage Loans and REO Properties determined as described above is at least
equal to the Principal Balance of the Mortgage Loans (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and the appraised value of the REO Properties.
(b) The majority holder of the Class CE Certificates (so long as such
holder is not an affiliate of the Seller) or if such majority holder fails to
exercise such right, the Servicer (or if the Servicer fails to exercise such
right, the NIMS Insurer) shall have the right (the party exercising such right,
the "Terminator"), to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I pursuant to clause (i) of the preceding paragraph no later
than the Determination Date in the month immediately preceding the Distribution
Date on which the Certificates will be retired; provided, however, that the
Terminator may elect to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I pursuant to clause (i) above only if the aggregate Stated
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Principal Balance of the Mortgage Loans and each REO Property remaining in the
Trust Fund at the time of such election is reduced to less than 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
By acceptance of the Residual Certificates, the Holder of the Residual
Certificates agrees for so long as any notes insured by the NIMS Insurer and
secured by all or a portion of the Class CE, Class P or Class R Certificates are
outstanding, in connection with any termination hereunder, to assign and
transfer any amounts in excess of par, and to the extent received in respect of
such termination, to pay any such amounts to the Holders of the Class CE
Certificates.
(c) Notice of the liquidation of the Certificates shall be given
promptly by the Trustee by letter to Certificateholders and the NIMS Insurer
mailed (a) in the event such notice is given in connection with the purchase of
the Mortgage Loans and each REO Property by the Terminator, not earlier than the
10th day and not later than the 20th day of the month next preceding the month
of the final distribution on the Certificates or (b) otherwise during the month
of such final distribution on or before the Determination Date in such month, in
each case specifying (i) the Distribution Date upon which the Trust Fund will
terminate and the final payment in respect of the REMIC I Regular Interests and
the Certificates will be made upon presentation and surrender of the related
Certificates at the office of the Trustee therein designated, (ii) the amount of
any such final payment, (iii) that no interest shall accrue in respect of the
REMIC I Regular Interests or the Certificates from and after the Accrual Period
relating to the final Distribution Date therefor and (iv) that the Record Date
otherwise applicable to such Distribution Date is not applicable, payments being
made only upon presentation and surrender of the Certificates at the office of
the Trustee. In the event such notice is given in connection with the purchase
of all of the Mortgage Loans and each REO Property remaining in REMIC I by the
Terminator, the Terminator shall deliver to the Trustee for deposit in the
Distribution Account not later than the last Business Day of the month next
preceding the month of the final distribution on the Certificates an amount in
immediately available funds equal to the Termination Price. The Trustee shall
remit to the Servicer from such funds deposited in the Distribution Account (i)
any amounts which the Servicer would be permitted to withdraw and retain from
the Collection Account pursuant to Section 3.11 and (ii) any other amounts
otherwise payable by the Trustee to the Servicer from amounts on deposit in the
Distribution Account pursuant to the terms of this Agreement, in each case prior
to making any final distributions pursuant to Section 10.01(d) below. Upon
certification to the Trustee by the Terminator of the making of such final
deposit, the Trustee shall promptly release to the Terminator the Mortgage Files
for the remaining Mortgage Loans, and the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such transfer.
(d) Upon presentation of the Certificates by the Certificateholders on
the final Distribution Date, the Trustee shall distribute to each
Certificateholder so presenting and surrendering its Certificates the amount
otherwise distributable on such Distribution Date in accordance with Section
4.01 in respect of the Certificates so presented and surrendered. Any funds not
distributed to any Holder or Holders of Certificates being retired on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust and
credited to the account of the appropriate non-tendering Holder or Holders. If
any Certificates as to which notice has been given pursuant to this Section 9.01
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender
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their Certificates for cancellation in order to receive the final distribution
with respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee
shall, directly or through an agent, mail a final notice to the remaining
non-tendering Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets remaining in the Trust Fund.
If within one year after the final notice any such Certificates shall not have
been surrendered for cancellation, the Trustee shall pay to UBS Warburg LLC all
such amounts, and all rights of non-tendering Certificateholders in or to such
amounts shall thereupon cease. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any such amounts held in trust by
the Trustee shall be held in an Eligible Account and the Trustee may direct any
depository institution maintaining such account to invest the funds in one or
more Permitted Investments. All income and gain realized from the investment of
funds deposited in such accounts held in trust by the Trustee shall be for the
benefit of the Trustee; provided, however, that the Trustee shall deposit in
such account the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such accounts immediately upon the
realization of such loss.
Immediately following the deposit of funds in trust hereunder in
respect of the Certificates, the Trust Fund shall terminate.
SECTION 9.02. Additional Termination Requirements.
(a) In the event that the Terminator purchases all the Mortgage Loans
and each REO Property or the final payment on or other liquidation of the last
Mortgage Loan or REO Property remaining in REMIC I pursuant to Section 9.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements:
(i) The Trustee shall specify the first day in the 90-day liquidation
period in a statement attached to each Trust REMIC's final Tax Return
pursuant to Treasury regulation Section 1.860F-1 and shall satisfy all
requirements of a qualified liquidation under Section 860F of the Code and
any regulations thereunder, as evidenced by an Opinion of Counsel obtained
at the expense of the Terminator;
(ii) During such 90-day liquidation period and, at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Terminator for cash; and
(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, to the Holders of the Residual Certificates all
cash on hand in the Trust Fund (other than cash retained to meet claims),
and the Trust Fund shall terminate at that time.
(b) At the expense of the requesting Terminator, the Depositor shall
prepare or cause to be prepared the documentation required in connection with
the adoption of a plan of liquidation of each Trust REMIC pursuant to this
Section 9.02.
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(c) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Trustee to specify the 90-day liquidation period for each
Trust REMIC, which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall elect to treat each Trust REMIC as a REMIC under
the Code and, if necessary, under applicable state law. Each such election will
be made by the Trustee on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the Certificates are issued. For
the purposes of the REMIC election in respect of REMIC I, the REMIC I Regular
Interests shall be designated as the Regular Interests in REMIC I and the Class
R-I Interest shall be designated as the Residual Interest in REMIC I. The Class
A Certificates, the Mezzanine Certificates, the Class CE Certificates and the
Class P Certificates shall be designated as the Regular Interests in REMIC II
and the Class R-II Interest shall be designated as the Residual Interest in
REMIC II. The Trustee shall not permit the creation of any "interests" in any
Trust REMIC (within the meaning of Section 860G of the Code) other than the
REMIC I Regular Interests and the interests represented by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
Trust REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall be reimbursed for any and all expenses relating
to any tax audit of the Trust Fund (including, but not limited to, any
professional fees or any administrative or judicial proceedings with respect to
any Trust REMIC that involve the Internal Revenue Service or state tax
authorities), including the expense of obtaining any tax related Opinion of
Counsel except as specified herein. The Trustee, as agent for each Trust REMIC's
tax matters person shall (i) act on behalf of the Trust Fund in relation to any
tax matter or controversy involving any Trust REMIC and (ii) represent the Trust
Fund in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The holder of
the largest Percentage Interest of the Residual Certificates shall be
designated, in the manner provided under Treasury regulations section
1.860F-4(d) and Treasury regulations section 301.6231(a)(7)-1, as the tax
matters person of the related REMIC created hereunder. By their acceptance
thereof, the holder of the largest Percentage Interest of the Residual
Certificates hereby agrees to irrevocably appoint the Trustee or an Affiliate as
its agent to perform all of the duties of the tax matters person for the Trust
Fund.
(d) The Trustee shall prepare, sign and file all of the Tax Returns
(including Form 8811, which must be filed within 30 days following the Closing
Date) in respect of each Trust REMIC. The expenses of preparing and filing such
returns shall be borne by the Trustee without any right of reimbursement
therefor.
(e) The Trustee shall perform on behalf of each Trust 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, as required by the Code, the REMIC Provisions or other
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such compliance guidance, the Trustee shall provide (i) to any Transferor of a
Residual Certificate such information as is necessary for the application of any
tax relating to the transfer of a Residual Certificate to any Person who is not
a Permitted Transferee, (ii) to the Certificateholders such information or
reports as are required by the Code or the REMIC Provisions including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required) and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who will
serve as the representative of each Trust REMIC. The Depositor shall provide or
cause to be provided to the Trustee, within ten (10) days after the Closing
Date, all information or data that the Trustee reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The Trustee shall take such action and shall cause each Trust
REMIC to take such action as shall be necessary to create or maintain the status
thereof as a REMIC under the REMIC Provisions. The Trustee shall not take any
action or cause the Trust Fund 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 any Trust REMIC as a
REMIC or (ii) result in the imposition of a tax upon the Trust Fund (including
but not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee and the NIMS Insurer has received an Opinion of Counsel,
addressed to the Trustee (at the expense of the party seeking to take such
action but in no event at the expense of the Trustee) to the effect that the
contemplated action will not, with respect to any Trust REMIC, endanger such
status or result in the imposition of such a tax, nor shall the Servicer take or
fail to take any action (whether or not authorized hereunder) as to which the
Trustee and the NIMS Insurer has advised it in writing that it has received an
Opinion of Counsel to the effect that an Adverse REMIC Event could occur with
respect to such action; provided that the Servicer may conclusively rely on such
Opinion of Counsel and shall incur no liability for its action or failure to act
in accordance with such Opinion of Counsel. In addition, prior to taking any
action with respect to any Trust REMIC or the respective assets of each, or
causing any Trust REMIC to take any action, which is not contemplated under the
terms of this Agreement, the Servicer will consult with the Trustee, the NIMS
Insurer or its designee, in writing, with respect to whether such action could
cause an Adverse REMIC Event to occur with respect to any Trust REMIC and the
Servicer shall not take any such action or cause any Trust REMIC to take any
such action as to which the Trustee or the NIMS Insurer has advised it in
writing that an Adverse REMIC Event could occur; provided that the Servicer may
conclusively rely on such writing and shall incur no liability for its action or
failure to act in accordance with such writing. The Trustee or the NIMS Insurer
may consult with counsel to make such written advice, and the cost of same shall
be borne by the party seeking to take the action not permitted by this
Agreement, but in no event shall such cost be an expense of the Trustee. At all
times as may be required by the Code, the Trustee will ensure that substantially
all of the assets of REMIC I will consist of "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code, to the extent such obligations are within the Trustee's
control and not otherwise inconsistent with the terms of this Agreement.
(g) In the event that any tax is imposed on "prohibited transactions"
of any REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on
the "net income from
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foreclosure property" of such REMIC as defined in Section 860G(c) of the Code,
on any contributions to any such REMIC after the Startup Day therefor pursuant
to Section 860G(d) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, such tax shall be charged (i)
to the Trustee pursuant to Section 10.03 hereof, if such tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Article X, (ii) to the Servicer pursuant to Section 10.03 hereof, if such tax
arises out of or results from a breach by the Servicer of any of its obligations
under Article III or this Article X, or (iii) against amounts on deposit in the
Distribution Account and shall be paid by withdrawal therefrom.
(h) On or before April 15th of each calendar year, commencing April
15, 2004, the Trustee shall deliver to each Rating Agency and the NIMS Insurer
an Officer's Certificate of the Trustee stating the Trustee's compliance with
this Article X (without regard to any action taken by any party other than the
Trustee).
(i) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each Trust REMIC on a calendar year and on an
accrual basis.
(j) Following the Startup Day, neither the Servicer nor the Trustee
shall accept any contributions of assets to any Trust REMIC other than in
connection with any Qualified Substitute Mortgage Loan delivered in accordance
with Section 2.03 unless it shall have received an Opinion of Counsel to the
effect that the inclusion of such assets in the Trust Fund will not cause the
related REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding or subject such REMIC to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(k) Neither the Trustee nor the Servicer shall enter into any
arrangement by which any Trust REMIC will receive a fee or other compensation
for services nor permit either REMIC to receive any income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. 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 connection with (i)
the foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by deed in lieu of
foreclosure, (ii) the bankruptcy of REMIC I, (iii) the termination of REMIC I
pursuant to Article IX of this Agreement, (iv) a substitution pursuant to
Article II of this Agreement or (v) a purchase of Mortgage Loans pursuant to
Article II or III of this Agreement), nor acquire any assets for any Trust REMIC
(other than REO Property acquired in respect of a defaulted Mortgage Loan), nor
sell or dispose of any investments in the Collection Account or the Distribution
Account for gain, nor accept any contributions to any Trust REMIC after the
Closing Date (other than a Qualified Substitute Mortgage Loan delivered in
accordance with Section 2.03), unless it has received an Opinion of Counsel,
addressed to the Trustee and the NIMS Insurer (at the expense of the party
seeking to cause such sale, disposition, substitution, acquisition or
contribution but in no event at the expense of the Trustee) that such sale,
disposition, substitution, acquisition or contribution will not (a) affect
adversely the status of any Trust REMIC as a REMIC or (b) cause any Trust REMIC
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to be subject to a tax on "prohibited transactions" or "contributions" pursuant
to the REMIC Provisions.
SECTION 10.03. Servicer and Trustee Indemnification.
(a) In the event that any Trust REMIC 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 (i) the negligent performance by the Trustee of its duties and
obligations set forth herein or (ii) any state, local or franchise taxes imposed
upon the Trust Fund as a result of the location of the Trustee or any
co-trustee, the Trustee shall indemnify the NIMS Insurer and the Trust Fund
against any and all Losses resulting from such negligence, including, without
limitation, any reasonable attorneys' fees imposed on or incurred as a result of
a breach of the Trustee's or any co-trustee's covenants; PROVIDED, HOWEVER, that
the Trustee shall not be liable for any such Losses attributable to the action
or inaction of the Servicer, the Depositor or the Holder of such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual Certificate on which the
Trustee has relied. The foregoing shall not be deemed to limit or restrict the
rights and remedies of the Holder of such Residual Certificate now or hereafter
existing at law or in equity. Notwithstanding the foregoing, however, in no
event shall the Trustee 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 Trustee 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).
(b) In the event that any Trust REMIC 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 (i) the negligent performance by the Servicer of its duties
and obligations set forth herein or (ii) any state, local or franchise taxes
imposed upon the Trust Fund as a result of the location of the Servicer or any
sub-servicer, the Servicer shall indemnify the NIMS Insurer, the Trustee and the
Trust Fund against any and all losses, claims, damages, liabilities or expenses
("Losses") resulting from such negligence, including, without limitation, any
reasonable attorneys' fees imposed on or incurred as a result of a breach of the
Servicer's or any sub- servicer's covenants; 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 such Residual
Certificate, as applicable, nor for any such Losses resulting from
misinformation provided by the Holder of such Residual 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 such Residual 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).
ARTICLE XI
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MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee with the consent of the NIMS Insurer and without the
consent of any of the Certificateholders, (i) to cure any ambiguity or defect,
(ii) to correct, modify or supplement any provisions herein (including to give
effect to the expectations of Certificateholders), or (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, provided
that such action shall not adversely affect in any material respect the
interests of any Certificateholder as evidenced by either (i) an Opinion of
Counsel delivered to the Servicer, the Trustee and the NIMS Insurer or (ii)
confirmation from the Rating Agencies, delivered to the Servicer, the Trustee
and the NIMS Insurer, that such amendment will not result in the reduction or
withdrawal of the rating of any outstanding Class of Certificates. No amendment
shall be deemed to adversely affect in any material respect the interests of any
Certificateholder who shall have consented thereto, and no Opinion of Counsel
shall be required to address the effect of any such amendment on any such
consenting Certificateholder.
This Agreement may also be amended from time to time by the Depositor,
the Servicer, the NIMS Insurer and the Trustee with the consent of the NIMS
Insurer and the Holders of Certificates entitled to at least 66% of the Voting
Rights 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 shall (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed on
any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates (as evidenced by either (i) an Opinion of Counsel
delivered to the Trustee and the NIMS Insurer or (ii) confirmation from the
Rating Agencies, delivered to the Servicer, the Trustee and the NIMS Insurer,
that such action will not result in the reduction or withdrawal of the rating of
any outstanding Class of Certificates) in a manner, other than as described in
(i), or (iii) modify the consents required by the immediately preceding clauses
(i) and (ii) without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any other provision of this Agreement, for purposes
of the giving or withholding of consents pursuant to this Section 11.01,
Certificates registered in the name of the Depositor or the Servicer or any
Affiliate thereof shall be entitled to Voting Rights with respect to matters
affecting such Certificates.
Notwithstanding any contrary provision of this Agreement, neither the
Trustee nor the NIMS Insurer shall consent to any amendment to this Agreement
unless it shall have first received an Opinion of Counsel satisfactory to the
NIMS Insurer to the effect that such amendment will not result in the imposition
of any tax on any Trust REMIC pursuant to the REMIC Provisions or cause any
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Promptly after the execution of any such amendment the Trustee shall
furnish a copy of such amendment to each Certificateholder and the NIMS Insurer.
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It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
The cost of any Opinion of Counsel to be delivered pursuant to this
Section 11.01 shall be borne by the Person seeking the related amendment, but in
no event shall such Opinion of Counsel be an expense of the Trustee.
The Trustee may, but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
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 Certificateholders, but only upon direction of
the Trustee accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
provided for herein) 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 any 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
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Agreement, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates 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 15 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 whatsoever 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, 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, 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.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
SECTION 11.05. Notices.
All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when received if personally delivered at
or mailed by first class mail, postage prepaid, or by express delivery service
or delivered in any other manner specified herein, to (a) in the case of the
Depositor, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx XxXxxxxx (telecopy number (000) 000-0000), or such other address or
telecopy number as may hereafter be furnished to the Servicer, the NIMS Insurer
and the Trustee in writing by the Depositor, (b) in the case of the Servicer,
00000 Xxxxxx Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X.
Ducks, with a copy to 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention:
General Counsel, or such other address or telecopy number as may hereafter be
furnished to the Trustee, the NIMS Insurer and the Depositor in writing by the
Servicer, (c) in the case of the Trustee, 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx, 00000, Attention: Structured Finance/MASTR 2003-WMC1 (telecopy number
(000) 000-0000), or such other address or telecopy number as may hereafter be
furnished to the Depositor, the NIMS Insurer and the Servicer in writing by the
Trustee, or such other address or telecopy number as may hereafter be furnished
to the Servicer, the NIMS Insurer and the Depositor in writing by the Trustee
and (d) in the case of the NIMS Insurer, if any, as applicable, (i) Radian
Insurance Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
General Counsel and (ii) Financial Security Assurance Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Transaction Oversight, or such other address or
telecopy number as may hereafter be furnished to the Servicer, the Depositor and
the Trustee in writing by the NIMS Insurer. Any notice required or permitted to
be given to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the
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Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given when mailed,
whether or not the Certificateholder receives such notice. A copy of any notice
required to be telecopied hereunder also shall 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 be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Notice to Rating Agencies and the NIMS Insurer.
The Trustee shall use its best efforts promptly to provide notice to
the Rating Agencies and the NIMS Insurer with respect to each of the following
of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Servicer Event of Default that has not been
cured or waived;
3. The resignation or termination of the Servicer or the Trustee;
4. The repurchase or substitution of Mortgage Loans pursuant to or as
contemplated by Section 2.03;
5. The final payment to the Holders of any Class of Certificates;
6. Any change in the location of the Collection Account or the
Distribution Account;
7. Any event that would result in the inability of the Trustee to make
advances regarding delinquent Mortgage Loans; and
8. The filing of any claim under any Servicer's blanket bond and
errors and omissions insurance policy required by Section 3.14 or the
cancellation or material modification of coverage under any such
instrument.
In addition, the Trustee shall promptly furnish to each Rating Agency
and the NIMS Insurer copies of each report to Certificateholders described in
Section 4.02 and the Servicer shall promptly furnish to each Rating Agency
copies of the following:
1. Each annual statement as to compliance described in Section 3.20;
and
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2. Each annual independent public accountants' servicing report
described in Section 3.21.
Any such notice pursuant to this Section 11.07 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 Xxxxx'x
Investors Service Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Standard
& Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies, Inc., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other addresses as the Rating
Agencies may designate in writing to the parties hereto.
SECTION 11.08. 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 11.09. Grant of Security Interest.
It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans by the Depositor to the Trustee, be, and be construed as, a
sale of the Mortgage Loans by the Depositor and not a pledge of the Mortgage
Loans to secure a debt or other obligation of the Depositor. However, in the
event that, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are held to be property of the Depositor, then, (a) it is the
express intent of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor and (b)(1) this Agreement shall also be deemed to be
a security agreement within the meaning of Articles 8 and 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York; (2) the
conveyance provided for in Section 2.01 hereof shall be deemed to be a grant by
the Depositor to the Trustee of a security interest in all of the Depositor's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holders of the Mortgage Loans in accordance with the terms thereof and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts, other than investment earnings, from time to time held or invested
in the Collection Account and the Distribution Account, whether in the form of
cash, instruments, securities or other property; (3) the obligations secured by
such security agreement shall be deemed to be all of the Depositor's obligations
under this Agreement, including the obligation to provide to the
Certificateholders the benefits of this Agreement relating to the Mortgage Loans
and the Trust Fund; and (4) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
Accordingly, the Depositor hereby grants to the Trustee a security interest in
the Mortgage Loans and all other property described in clause (2) of the
preceding sentence, for the purpose of securing to the Trustee the performance
by the Depositor of the obligations described in clause (3) of the preceding
sentence. Notwithstanding the foregoing, the parties hereto intend the
conveyance pursuant to Section 2.01 to be a true, absolute and unconditional
sale of the Mortgage Loans and assets constituting the Trust Fund by the
Depositor to the Trustee.
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SECTION 11.10 Third Party Rights.
The NIMs Insurer shall be deemed a third-party beneficiary of this
Agreement to the same extent as if it were a party hereto, and shall have the
right to enforce the provisions of this Agreement.
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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, in each case as of the day and year first above written.
MORTGAGE ASSET SECURITIZATION
TRANSACTIONS, INC.,
as Depositor
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
CHASE MANHATTAN MORTGAGE
CORPORATION
as Servicer
By:_______________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:_______________________________________
Name:
Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the th day of May 2003, before me, a notary public in and for said
State, personally appeared ________________, known to me to be a
________________ of Mortgage Asset Securitization Transactions, Inc., one of the
corporations 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
[Notarial Seal]
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STATE OF ______________ )
) ss.:
COUNTY OF _____________ )
On the ____ day of May 2003, before me, a notary public in and for
said State, personally appeared _____________________, known to me to be
__________________ of Chase Manhattan Mortgage Corporation, one of the
corporations 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
[Notarial Seal]
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STATE OF MINNESOTA )
)ss.:
COUNTY OF XXXXXX )
On the ____ day of May 2003, before me, a notary public in and
for said State, personally appeared ______________, known to me to be a
____________ of U.S. Bank National Association, one of the corporations 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
[Notarial Seal]
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EXHIBIT A-1
FORM OF 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class A-1 Certificates as of the Issue Date:
Pass-Through Rate: Variable $[__]
Cut-off Date and date of Pooling and Servicing Denomination: $[__]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
CUSIP: [___]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-1-1
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-1 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class A-1 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class A
Certificates, or otherwise 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. 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 Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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 at least 66% of the Voting Rights. 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 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, the 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 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.
A-1-3
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, 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: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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.
X-0-0
XXXXXXX X-0
-----------
FORM OF 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class A-2 Certificates as of the Issue Date:
Pass-Through Rate: Variable $[___]
Cut-off Date and date of Pooling and Servicing Denomination: $[___]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
CUSIP: [___]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-1-8
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-2 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class A-2 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class A
Certificates, or otherwise 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. 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
A-1-9
of this Certificate at the office or agency appointed by the Trustee for that
purpose as provided in the Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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 at least 66% of the Voting Rights. 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 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, the 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 Trustee may require
A-1-10
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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-11
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-1-12
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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-1-13
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.
X-0-00
XXXXXXX X-0
-----------
FORM OF 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class A-3 Certificates as of the Issue Date:
Pass-Through Rate: Variable $[__]
Cut-off Date and date of Pooling and Servicing Denomination: $[__]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
CUSIP: [___]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-1-15
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class A-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class A-3 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class A-3 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class A
Certificates, or otherwise 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. 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-1-16
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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 at least 66% of the Voting Rights. 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 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, the 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 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.
A-1-17
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-18
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-1-19
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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-1-20
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.
X-0-00
XXXXXXX X-0
-----------
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE
CLASS A-2 CERTIFICATES AND THE CLASS A-3 CERTIFICATES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-2-1
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class M-1 Certificates as of the Issue Date:
Pass-Through Rate: Variable $[____]
Cut-off Date and date of Pooling and Servicing Denomination: $[____]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
CUSIP: [____]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-2-2
MORTGAGE PASS-THROUGH CERTIFICATE
---------------------------------
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-1 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class M-1 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-1 Certificates, or otherwise 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. 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-2-3
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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 at least 66% of the Voting Rights. 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 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.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate
A-2-4
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 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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-2-7
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.
X-0-0
XXXXXXX X-0
-----------
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE
CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES AND THE CLASS M-1
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-3-1
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class M-2 Certificates as of the Issue Date:
Pass-Through Rate: Variable $[____]
Cut-off Date and date of Pooling and Servicing Denomination: $[____]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
CUSIP: [____]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-3-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-2 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class M-2 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-2 Certificates, or otherwise 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. 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-3-3
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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 at least 66% of the Voting Rights. 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 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.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate
A-3-4
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 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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-3-7
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.
X-0-0
XXXXXXX X-0
-----------
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE
CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS M-1
CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-4-1
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class M-3 Certificates as of the Issue Date:
Pass-Through Rate: Variable $[___]
Cut-off Date and date of Pooling and Servicing Denomination: $[____]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
CUSIP: [____]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-4-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-3 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class M-3 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-3 Certificates, or otherwise 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. 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-4-3
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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 at least 66% of the Voting Rights. 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 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.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate
A-4-4
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 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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-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.
X-0-0
XXXXXXX X-0
-----------
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE
CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-5-1
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class M-4 Certificates as of the Issue Date:
Pass-Through Rate: Variable $[____]
Cut-off Date and date of Pooling and Servicing Denomination: $[____]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
CUSIP: [___]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-5-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-4 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-4 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class M-4 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-4 Certificates, or otherwise 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. 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-5-3
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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, 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 at least 66% of the Voting Rights. 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 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.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the Certificates are exchangeable for
A-5-4
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 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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-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.
X-0-0
XXXXXXX X-0
-----------
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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE
CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES
AND THE CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-5-9
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class M-5 Certificates as of the Issue Date:
Pass-Through Rate: Variable $[____]
Cut-off Date and date of Pooling and Servicing Denomination: $[____]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
CUSIP: [___]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-5-10
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class M-5 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-5 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class M-5 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-5 Certificates, or otherwise 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. 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-5-11
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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, 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 at least 66% of the Voting Rights. 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 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.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the Certificates are exchangeable for
A-5-12
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 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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5-13
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-5-14
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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-5-15
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.
X-0-00
XXXXXXX X-0
-----------
FORM OF CLASS MV-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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE
CLASS A-2 CERTIFICATES, THE CLASS A-3 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 TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-5-17
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class MV-6 Certificates as of the Issue Date:
Pass-Through Rate: [___]% $[____]
Cut-off Date and date of Pooling and Servicing Denomination: $[____]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: May [__], 2003
CUSIP: [___]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-5-18
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class MV-6 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class MV-6 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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 MV-6 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 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 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 Class MV-6 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal
Balance of the Class MV-6 Certificates, or otherwise 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. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such
A-5-19
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 Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (i) the related Formula Rate for
such Distribution Date and (ii) the related Net WAC Pass-Through Rate for such
Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificates") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal to the denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. 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, 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 at least 66% of the Voting Rights. 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 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.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the Certificates are exchangeable for
A-5-20
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 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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5-21
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-5-22
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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-5-23
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.
A-5-24
EXHIBIT A-10
------------
FORM OF CLASS MF-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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE
CLASS A-2 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 TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-5-25
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class MF-6 Certificates as of the Issue Date:
Pass-Through Rate: [___]% $[____]
Cut-off Date and date of Pooling and Servicing Denomination: $[____]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Issue Date: May [__], 2003
CUSIP: [___]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-5-26
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE 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 denomination of this Certificate
by the aggregate Certificate Principal Balance of the Class MF-6 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class MF-6 Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 Record Date, 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 MF-6 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 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 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 Class MF-6 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal
Balance of the Class MF-6 Certificates, or otherwise 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. 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-5-28
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
equal a rate per annum equal to the lesser of (x)(i) [___]% per annum on each
Distribution Date on or prior to the Optional Termination Date and (ii) [___]%
per annum on each Distribution Date after the Optional Termination Date and (y)
the Net WAC Rate for such Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificate") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal tthe denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may bmade 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, 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 at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
aupon 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 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.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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
A-5-29
Agreement and subject to certain limitations therein set forth, the 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 Trustee may
require payment of a sum sufficient tcover 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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Lat 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance othe Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-5-29
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-5-30
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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-5-31
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.
A-5-32
EXHIBIT A-11
------------
FORM OF CLASS CE CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE
CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS MV-5 CERTIFICATES AND THE CLASS
MF-5 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT
TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE
EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-5-34
Series 2003-WMC1 Aggregate Certificate Principal Balance of the
Class CE Certificates as of the Issue Date:
Pass-Through Rate: Variable $[____]
Cut-off Date and date of Pooling and Servicing Denomination: $[____]
Agreement: May 1, 2003
Servicer: Chase Manhattan Mortgage
First Distribution Date: June 25, 2003 Corporation
No. 1 Trustee: U.S. Bank National Association
Aggregate Notional Amount of the Class Issue Date: February [__], 2003
CE Certificates as of the Issue Date: $[_____]
Notional Amount: $[____]
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 AS THE DENOMINATION OF THIS
CERTIFICATE.
A-5-34
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [_______] is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of tClass CE Certificates as of
the Issue Date) in that certain beneficial ownership interest evidenced by all
the Class CE Certificates in REMIC II created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Asset Securitization Transactions, Inc. (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 His bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th dof each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distributio Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, 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 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 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 Class CE Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
CE Certificates, or otherwise 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. Notwithstanding the above, tfinal 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-5-35
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificate") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal tthe denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may bmade 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 at least 66% of the Voting Rights. 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 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.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an 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 such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. None of the Depositor or the Trustee is obligated to
register or qualify the Class of
A-5-36
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 Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the 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 to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the 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 Trustee may require payment of a sum sufficient tcover
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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Lat 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance othe Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
A-5-37
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-5-38
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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-5-39
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.
A-5-40
EXHIBIT A-12
------------
FORM OF CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT
TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE
EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
A-6-1
Series: 2003-WMC1 Aggregate Certificate Principal Balance of the
Class P Certificates as of the Issue Date:
Cut-off Date and date of Pooling and Servicing $100.00
Agreement: May 1, 2003
Denomination: $100.00
First Distribution Date: June 25, 2003
Servicer: Chase Manhattan Mortgage
No. 1 Corporation
Trustee: U.S. Bank National Association
Issue Date: February [__], 2003
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 AS THE DENOMINATION OF THIS CERTIFICATE.
A-6-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [_______] is the registered owner of a
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Certificate Principal Balance of tClass P Certificates as of
the Issue Date) in that certain beneficial ownership interest evidenced by all
the Class P Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Mortgage Asset
Securitization Transactions, Inc. (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 His bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th dof each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distributio Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, 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.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by 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 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 Class P Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lof (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class P
Certificates, or otherwise 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. Notwithstanding the above, tfinal 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-6-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificate") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof
equal tthe denomination specified on the face hereof divided by the aggregate
Certificate Principal Balance of the Class of Certificates specified on the face
hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may bmade 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 at least 66% of the Voting Rights. 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 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.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an 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 such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. None of the Depositor or the Trustee is obligated to
register or qualify the Class of
A-6-4
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 Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the 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 to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the 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 Trustee may require payment of a sum sufficient tcover
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 any agent of the
Depositor, the Servicer or the Trustee 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 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 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Lat 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance othe Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
A-6-5
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-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.
A-6-8
EXHIBIT A-13
------------
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED
STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
("REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT
TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE
EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW
AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE
TRUSTEE THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY
POSSESSION THEREOF, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER
THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT 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,
(3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR
A-7-1
(3) SHALL HEREINAFTER BE REFERRED TO AS A "DISQUALIFIED
ORGANIZATION") OR (4) AN AGENT OF A DISQUALIFIED ORGANIZATION AND (B)
NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION
OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL
CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
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 THIS CERTIFICATE BY ACCEPTANCE HEREOF 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 CERTIFICATE.
Series: 2003-WMC1 Aggregate Percentage Interest of the Class R
Certificates as of the Issue Date: 100.00%
Cut-off Date and date of Pooling and Servicing
Agreement: May 1, 2003 Servicer: Chase Manhattan Mortgage
Corporation
First Distribution Date: June 25, 2003
Trustee: U.S. Bank National Association
No.1
Issue Date: February [__], 2003
A-7-2
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a portion of a Trust Fund (the
"Trust Fund") consisting primarily of a pool of conventional one- to
four-family, fixed-rate and adjustable-rate, first and second lien mortgage
loans (the "Mortgage Loans") formed and sold by
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., THE SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that [_______] is the registered owner of a
Percentage Interest (as specified above) in that certain beneficial ownership
interest evidenced by all the Certificates of the Class to which this
Certificate belongs created pursuant to a Pooling and Servicing Agreement, dated
as specified above (the "Agreement"), among Mortgage Asset Securitization
Transactions, Inc. (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 His bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th dof each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distributio Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, 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 R 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 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 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 Class R Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or (ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class R
Certificates, or otherwise 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. Notwithstanding the above, tfinal 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-7-3
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (herein called the "Certificate") and representing
a Percentage Interest in the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may bmade 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 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 at least 66% of the Voting Rights. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
aupon 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 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.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an 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 such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit F-1, and (ii) in
all other cases, an Opinion of Counsel satisfactory to it that such transfer may
be made without such registration or qualification (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Trustee or
the Servicer in their respective capacities as such), together with copies of
the written certification(s) of the Holder of the Certificate desiring to effect
the transfer and/or such Holder's prospective transferee upon which such Opinion
of Counsel is based. Neither the Depositor nor the Trustee is obligated to
register or qualify the Class of
A-7-4
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 Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the 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 to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person using "Plan Assets" to acquire this Certificate
shall be made except in accordance with Section 5.02(c) of the Agreement.
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, the 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 Trustee may require payment of a sum sufficient tcover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee iany Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax eand (C) it expects to have the
financial means to satisfy all of its tax obligations including those relating
to holding the Class R Certificates. Notwithstanding the registration in the
Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall be
deemed to be of no lforce or effect whatsoever and such Person shall not be
deemed to be a Certificateholder for any purpose, including, but not limited to,
the receipt of distributions in respect of this Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed 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
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The Depositor, the Servicer, the Trustee and any agent of the
Depositor, the Servicer or the Trustee 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 nor any such agent shall be affected by
notice to the contrary.
A-7-5
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment to the Certificateholders of all
amounts held by 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 and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the 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 REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Lat 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate principal balance othe Mortgage Loans as of the Cut-off
Date.
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 Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-7-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: May __, 2003
MASTR ASSET BACKED SECURITIES
TRUST 2003-WMC1
U.S. BANK NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
A-7-7
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
TEN ENT - as tenants by the entireties (Cust) (Minor) under
Uniform Gifts
JT TEN - as joint tenants with right to Minors Act
if 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 Mortgage Pass-Through Certificates 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 Trustee 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-7-8
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.
A-7-1
EXHIBIT B
---------
[Reserved]
B-1
EXHIBIT C-1
-----------
FORM OF TRUSTEE'S INITIAL CERTIFICATION
[Date]
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chase Manhattan Mortgage Corporation
00000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of May 1, 2003, among
Mortgage Asset Securitization Transactions, Inc., Chase Manhattan
Mortgage Corporation and U.S. Bank National Association, Mortgage
Pass-Through Certificates, Series 2003-WMC1
-----------------------------------------------------------------
Ladies and Gentlemen:
Attached is the Trustee's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File included any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
C-1-1
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement.
U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
Title:
C-1-2
EXHIBIT C-2
-----------
FORM OF TRUSTEE'S FINAL CERTIFICATION
[Date]
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chase Manhattan Mortgage Corporation
00000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of May 1, 2003,
among Mortgage Asset Securitization Transactions, Inc.,
Chase Manhattan Mortgage Corporation and U.S. Bank National
Association, Mortgage Pass-Through Certificates, Series
2003-WMC1
-----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing Agreement,
the undersigned, as Trustee, hereby certifies that as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage loan paid in full
or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed on
Schedule I hereto, it has reviewed the documents listed above and has determined
that each such document appears to be complete and, based on an examination of
such documents, the information set forth in the Mortgage Loan Schedule is
correct.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File included any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
C-2-1
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement.
U.S. BANK NATIONAL ASSOCIATION
By:
------------------------------
Name:
Title:
C-2-2
EXHIBIT C-3
-----------
FORM OF RECEIPT OF MORTGAGE NOTE
Mortgage Asset Securitization Chase Manhattan Mortgage Corporation
Transactions, Inc. 00000 Xxxxxx Xxxxxxxx Xxxx
0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxxx, Xxxxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement, dated as of May 1, 2003,
among Mortgage Asset Securitization Transactions, Inc.,
Chase Manhattan Mortgage Corporation and U.S. Bank National
Association, Mortgage Pass-Through Certificates, Series
2003-WMC1
-----------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing Agreement, dated
as of May 1, 2003, among Mortgage Asset Securitization Transactions, Inc. as
Depositor, Chase Manhattan Mortgage Corporation as Servicer and U.S. Bank
National Association. as Trustee (the "Trustee"), we hereby acknowledge the
receipt of the original Mortgage Notes (a copy of which is attached hereto as
Exhibit 1) with any exceptions thereto listed on Exhibit 2.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Name:
Title:
C-2-3
EXHIBIT D
---------
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
D-1
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (this "Agreement"), dated
May 22, 2003, among UBS Warburg Real Estate Securities Inc., a Delaware
corporation (the "Seller"), Mortgage Asset Securitization Transactions, Inc., a
Delaware corporation (the "Purchaser") and WMC Mortgage Corp., a California
corporation (the "Originator").
Preliminary Statement
---------------------
The Seller intends to sell the Mortgage Loans (as hereinafter
identified) and the Cap Contract to the Purchaser on the terms and subject to
the conditions set forth in this Agreement. The Purchaser intends to deposit the
Mortgage Loans into a mortgage pool comprising the Trust Fund. The Trust Fund
will be evidenced by a single series of mortgage pass-through certificates
designated as Series 2003-WMC1 (the "Certificates"). The Certificates will
consist of eleven classes of certificates. The Certificates will be issued
pursuant to a Pooling and Servicing Agreement for Series 2003-WMC1, dated as of
May 1, 2003 (the "Pooling and Servicing Agreement"), among the Depositor as
depositor, Chase Manhattan Mortgage Corporation as servicer (in such capacity,
the "Servicer") and U.S. Bank National Association as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Pooling and Servicing Agreement.
The parties hereto agree as follows:
SECTION 1. AGREEMENT TO PURCHASE. The Seller agrees to sell and the
Purchaser agrees to purchase, on or before May 28, 2003 (the "Closing Date"),
certain fixed-rate and adjustable-rate conventional, one- to four-family,
residential mortgage loans (the "Mortgage Loans"), having an aggregate principal
balance as of the close of business on May 1, 2003, (the "Cut-off Date") of
approximately $744,124,783 (the "Closing Balance"), after giving effect to all
payments due on the Mortgage Loans on or before the Cut-off Date, whether or not
received including the right to any Prepayment Charges payable by the related
Mortgagors in connection with any Principal Prepayments on the Mortgage Loans.
SECTION 2. MORTGAGE LOAN SCHEDULE. The Purchaser and the Seller have
agreed upon which of the mortgage loans owned by the Seller are to be purchased
by the Purchaser pursuant to this Agreement and the Seller will prepare or cause
to be prepared on or prior to the Closing Date a final schedule (the "Closing
Schedule") that shall describe such Mortgage Loans and set forth all of the
Mortgage Loans to be purchased under this Agreement, including the Prepayment
Charges. The Closing Schedule will conform to the requirements set forth in this
Agreement and to the definitions of "Mortgage Loan Schedule" and "Prepayment
Charge Schedule" under the Pooling and Servicing Agreement, it being understood
that for purposes of this Agreement, "Mortgage Loan Schedule" shall refer to the
schedule delivered by the Originator to the Seller. The Closing Schedule shall
be used as the Mortgage Loan Schedule and Prepayment Charge Schedule under the
Pooling and Servicing Agreement.
SECTION 3. CONSIDERATION.
(a) In consideration for the Mortgage Loans to be purchased hereunder,
the Purchaser shall, as described in Section 8, pay to or upon the order of the
Seller in immediately available funds an amount (the "Mortgage Loan Purchase
Price") equal to the net sale proceeds of the Certificates.
(b) The Purchaser or any assignee, transferee or designee of the
Purchaser shall be entitled to all scheduled payments of principal due after the
Cut-off Date, all other payments of principal due and collected after the
Cut-off Date, and all payments of interest on the Mortgage Loans allocable to
the period after the Cut-off Date. All scheduled payments of principal and
interest due on or before the Cut-off Date and collected after the Cut-off Date
shall belong to the Seller.
(c) Pursuant to the Pooling and Servicing Agreement, the Purchaser
will assign all of its right, title and interest in and to the Mortgage Loans,
together with its rights under this Agreement, to the Trustee for the benefit of
the Certificateholders.
SECTION 4. TRANSFER OF THE MORTGAGE LOANS.
(a) POSSESSION OF MORTGAGE FILES. The Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse but
subject to the terms of this Agreement, all of its right, title and interest in,
to and under the Mortgage Loans, including the related Prepayment Charges. The
contents of each Mortgage File not delivered to the Purchaser or to any
assignee, transferee or designee of the Purchaser on or prior to the Closing
Date are and shall be held in trust by the Seller for the benefit of the
Purchaser or any assignee, transferee or designee of the Purchaser. Upon the
sale of the Mortgage Loans, the ownership of each Mortgage Note, the related
Mortgage and the other contents of the related Mortgage File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or that come into the possession of the Seller
on or after the Closing Date shall immediately vest in the Purchaser and shall
be delivered immediately to the Purchaser or as otherwise directed by the
Purchaser.
(b) DELIVERY OF MORTGAGE LOAN DOCUMENTS. The Seller will, on or prior
to the Closing Date, deliver or cause to be delivered to the Purchaser or any
assignee, transferee or designee of the Purchaser each of the following
documents for each Mortgage Loan:
(i) the original Mortgage Note, endorsed in blank or in the following
form: "Pay to the order of U.S. Bank National Association, as Trustee under
the applicable agreement, without recourse," with all prior and intervening
endorsements showing a complete chain of endorsement from the originator to
the Person so endorsing to the Trustee;
(ii) the original Mortgage, noting the presence of the MIN of the
Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan
if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and
the original recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording thereon;
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(iii) unless the Mortgage Loan is registered on the MERS(R)System, an
original Assignment in blank;
(iv) the original recorded Assignment or Assignments showing a
complete chain of assignment from the originator to the Person assigning
the Mortgage to the Trustee as contemplated by the immediately preceding
clause (iii);
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy, together with all
endorsements or riders that were issued with or subsequent to the issuance
of such policy, insuring the priority of the Mortgage as a first lien on
the Mortgaged Property represented therein as a fee interest vested in the
Mortgagor, or in the event such original title policy is unavailable, a
written commitment or uniform binder or preliminary report of title issued
by the title insurance or escrow company.
With respect to a maximum of approximately 2.0% of the Mortgage Loans,
by outstanding principal balance of the Mortgage Loans as of the Cut-off Date,
if any original Mortgage Note referred to in Section 4(b)(i) above cannot be
located, the obligations of the Seller to deliver such documents shall be deemed
to be satisfied upon delivery to the Purchaser of a photocopy of such Mortgage
Note, if available, with a lost note affidavit substantially in the form of
Exhibit I to the Pooling and Servicing Agreement. If any of the original
Mortgage Notes for which a lost note affidavit was delivered to the Purchaser is
subsequently located, such original Mortgage Note shall be delivered to the
Purchaser within three Business Days.
Except with respect to any Mortgage Loan for which MERS is identified
on the Mortgage or on a properly recorded assignment of the Mortgage as the
mortgagee of record, the Originator promptly shall (within sixty Business Days
following the later of the Closing Date and the date of receipt by the
Originator of the recording information for a Mortgage, but in no event later
than ninety days following the Closing Date) submit or cause to be submitted for
recording, at no expense to the Purchaser, in the appropriate public office for
real property records, each Assignment referred to in Section 4(b)(iii) and (iv)
above and in connection therewith, the Originator shall execute each original
Assignment in the following form: "U.S. Bank National Association, as Trustee
under the applicable agreement." In the event that any such Assignment is lost
or returned unrecorded because of a defect therein, the Originator shall
promptly prepare or cause to be prepared a substitute Assignment or cure or
cause to be cured such defect, as the case may be, and thereafter cause each
such Assignment to be duly recorded. Notwithstanding the foregoing, to the
extent that the Originator has performed the duties with the respect to any
Mortgage Loan referenced in this paragraph in connection with the transfer of
such Mortgage Loan to the Seller, references to the Originator in this paragraph
shall be deemed to be references to the Seller.
In connection with the assignment of any Mortgage Loan registered on
the MERS(R) System, the Originator further agrees that it will cause, within 30
Business Days after the Closing Date, the MERS(R) System to indicate that such
Mortgage Loans have been assigned by the Purchaser to the Trustee in accordance
with the Pooling and Servicing Agreement for the benefit of the
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Certificateholders by including in such computer files (a) the code in the field
which identifies the specific Trustee and (b) the code in the field "Pool Field"
which identifies the series of the Certificates issued in connection with such
Mortgage Loans. Notwithstanding the foregoing, the Originator shall not be
responsible for the expense of more than one transfer on the MERS(R) System at
the direction of the Seller or the Purchaser.
If any of the documents referred to in Sections 4(b)(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 Seller to deliver such documents shall be
deemed to be satisfied upon (1) delivery to the Purchaser of a copy of each such
document certified by the Originator 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 Originator, delivery to the Purchaser 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. The Originator shall provide notice to the Seller and the Seller shall
provide such notice to the Trustee and the Rating Agencies if delivery pursuant
to clause (2) above will be made more than 180 days after the Closing Date.
If the original lender's title insurance policy was not delivered
pursuant to Section 4(b)(vi) above, the Seller shall deliver or cause to be
delivered to the Purchaser, promptly after receipt thereof, the original
lender's title insurance policy. The Seller shall deliver or cause to be
delivered to the Purchaser promptly upon receipt thereof any other original
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.
Each original document relating to a Mortgage Loan which is not
delivered to the Purchaser or its assignee, transferee or designee, if held by
the Seller, shall be so held for the benefit of the Purchaser, its assignee,
transferee or designee.
(c) ACCEPTANCE OF MORTGAGE LOANS. The documents delivered pursuant to
Section 4(b) hereof shall be reviewed by the Purchaser or any assignee,
transferee or designee of the Purchaser at any time before or after the Closing
Date (and with respect to each document permitted to be delivered after the
Closing Date, within seven days of its delivery) to ascertain that all required
documents have been executed and received and that such documents relate to the
Mortgage Loans identified on the Mortgage Loan Schedule.
(d) TRANSFER OF INTEREST IN AGREEMENTS. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, to the Trustee,
as may be required to effect the purposes of the Pooling and Servicing
Agreement, without the consent of the Seller, and the assignee shall succeed to
the rights and obligations hereunder of the Purchaser. Any expense reasonably
incurred by or on behalf of the Purchaser or the Trustee in connection with
enforcing any obligations of the Seller under this Agreement will be promptly
reimbursed by the Seller.
(e) EXAMINATION OF MORTGAGE FILES. Prior to the Closing Date, the
Seller shall either (i) deliver in escrow to the Purchaser, or to any assignee,
transferee or designee of the
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Purchaser for examination, the Mortgage File pertaining to each Mortgage Loan or
(ii) make such Mortgage Files available to the Purchaser or to any assignee,
transferee or designee of the Purchaser for examination. Such examination may be
made by the Purchaser or the Trustee, and their respective designees, upon
reasonable notice to the Seller during normal business hours before the Closing
Date and within 60 days after the Closing Date. If any such person makes such
examination prior to the Closing Date and identifies any Mortgage Loans that do
not conform to the requirements of the Purchaser as described in this Agreement,
such Mortgage Loans shall be deleted from the Closing Schedule. The Purchaser
may, at its option and without notice to the Seller, purchase all or part of the
Mortgage Loans without conducting any partial or complete examination. The fact
that the Purchaser or any person has conducted or has failed to conduct any
partial or complete examination of the Mortgage Files shall not affect the
rights of the Purchaser or any assignee, transferee or designee of the Purchaser
to demand repurchase or other relief as provided herein or under the Pooling and
Servicing Agreement.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER AND
THE ORIGINATOR.
(a) The Seller hereby represents and warrants to the Originator and
the Purchaser, as of the date hereof and as of the Closing Date, and covenants,
that:
(i) The Seller is duly organized, validly existing and in good
standing as a corporation under the laws of the State of Delaware with full
corporate power and authority to conduct its business as presently conducted by
it to the extent material to the consummation of the transactions contemplated
herein. The Seller has the full corporate power and authority to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the Purchaser
and has the full corporate power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the terms and
conditions of this Agreement.
(ii) The Seller has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this Agreement,
and this Agreement, assuming due authorization, execution and delivery by the
Originator and the Purchaser, constitutes a legal, valid and binding obligation
of the Seller, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or
reorganization or by general principles of equity.
(iii) The execution, delivery and performance of this Agreement by the
Seller (x) does not conflict and will not conflict with, does not breach and
will not result in a breach of and does not constitute and will not constitute a
default (or an event, which with notice or lapse of time or both, would
constitute a default) under (A) any terms or provisions of the articles of
incorporation or by-laws of the Seller, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller is a
party or by which the Seller or any of its property is bound or (C) any law,
rule, regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or any of its
property and (y) does not create or impose and will not result in the creation
or imposition of any lien, charge or encumbrance which would have a material
adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans.
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(iv) No consent, approval, authorization or order of, registration or
filing with, or notice on behalf of the Seller to any governmental authority or
court is required, under federal laws or the laws of the State of Delaware, for
the execution, delivery and performance by the Seller of, or compliance by the
Seller with, this Agreement or the consummation by the Seller of any other
transaction contemplated hereby and by the Pooling and Servicing Agreement;
provided, however, that the Seller makes no representation or warranty regarding
federal or state securities laws in connection with the sale or distribution of
the Certificates.
(v) This Agreement does not contain any untrue statement of material
fact or omit to state a material fact necessary to make the statements contained
herein not misleading. The written statements, reports and other documents
prepared and furnished or to be prepared and furnished by the Seller pursuant to
this Agreement or in connection with the transactions contemplated hereby taken
in the aggregate do not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements contained therein not
misleading.
(vi) The Seller is not in violation of, and the execution and delivery
of this Agreement by the Seller and its performance and compliance with the
terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction over the Seller or its
assets, which violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or the operation of the
Seller or its assets or might have consequences that would materially and
adversely affect the performance of its obligations and duties hereunder.
(vii) The Seller 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.
(viii) Immediately prior to the sale of the Mortgage Loans to the
Purchaser as herein contemplated, the Seller will be the owner of the related
Mortgage and the indebtedness evidenced by the related Mortgage Note, and, upon
the payment to the Seller of the Mortgage Loan Purchase Price, the Purchaser
shall have good and marketable title to each Mortgage Loan, each related
Mortgage Note and the related Mortgage Files with respect thereto free and clear
of all liens, pledges, charges, claims security interests, participations and
other encumbrances.
(ix) There are no actions or proceedings against, or investigations
known to it of, the Seller before any court, administrative or other tribunal
(A) that might prohibit its entering into this Agreement, (B) seeking to prevent
the sale of the Mortgage Loans by the Seller or the consummation of the
transactions contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by the Seller of its obligations
under, or validity or enforceability of, this Agreement.
(x) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Seller are not subject to the bulk transfer or any similar statutory
provisions.
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(xi) The Seller has not dealt with any broker, investment banker,
agent or other person, except for the Purchaser or any of its affiliates, that
may be entitled to any commission or compensation in connection with the sale of
the Mortgage Loans (except that an entity that previously financed the Seller's
ownership of the Mortgage Loans may be entitled to a fee to release its security
interest in the Mortgage Loans, which fee shall have been paid and which
security interest shall have been released on or prior to the Closing Date).
(xii) There is no litigation currently pending or, to the best of the
Seller's knowledge without independent investigation, threatened against the
Seller that would reasonably be expected to adversely affect the transfer of the
Mortgage Loans, the issuance of the Certificates or the execution, delivery,
performance or enforceability of this Agreement, or that would result in a
material adverse change in the financial condition of the Seller.
(xiii) As of the Closing Date, the Seller has no knowledge of any
circumstances or condition with respect to the Mortgaged Property, the
Mortgagor, the Mortgagor's credit standing or the Mortgage that can reasonably
be expected to cause the Mortgage Loan to be an unacceptable investment, cause
the Mortgage Loan to become delinquent, or adversely affect the value of the
Mortgage Loan.
(xiv) As of the Closing Date, the Mortgaged Property is lawfully
occupied under applicable law; all inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy, have been made or
obtained from the appropriate authorities.
(xv) As of the Closing Date, the Mortgaged Property is in compliance
with all applicable environmental laws pertaining to environmental hazards
including, without limitation, asbestos, and neither the Originator nor any
related seller of the Mortgage Loan nor, to the Originator's knowledge and the
knowledge of any related seller of the Mortgage Loan, the related Mortgagor, has
received any notice of any violation or potential violation of such law.
(xvi) As of the Closing Date, there are no delinquent taxes, ground
rents, water charges, sewer rents, assessments, insurance premiums, leasehold
payments, including assessments payable in future installments or other
outstanding charges affecting the related Mortgaged Property.
(xvii) To the best knowledge of the Seller, each Mortgage Loan at the
time it was made complied in all material respects with applicable local, state,
and federal laws, including, but not limited to, all applicable predatory and
abusive lending laws.
(xviii) None of the mortgage loans are (i) "High Cost" as such term is
defined in HOEPA or (ii) a reasonably equivalent provision as defined by the
applicable predatory and abusive lending laws.
(b) The Originator hereby represents and warrants to the Seller and
the Purchaser, as of the date hereof and as of the Closing Date, and covenants,
that:
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(i) The Originator is a corporation duly organized and validly
existing under the laws of California. The Originator has all licenses necessary
to carry out its business as now being conducted, and is licensed and qualified
to transact business in and is in good standing under the laws of each state in
which any Mortgaged Property is located or is otherwise exempt under applicable
law from such licensing or qualification or is otherwise not required under
applicable law to effect such licensing or qualification and no demand for such
licensing or qualification has been made upon the Originator by any such state,
and in any event the Originator is in compliance with the laws of any such state
to the extent necessary to ensure the enforceability of each Mortgage Loan. No
licenses or approvals obtained by the Originator have been suspended or revoked
by any court, administrative agency, arbitrator or governmental body and no
proceedings are pending which might result in such suspension or revocation,
which is reasonably likely to have a material adverse effect on any Mortgage
Loan (including the Seller's interest therein) or is reasonable likely to have a
material adverse effect on the transactions contemplated by this Agreement;
(ii) The Originator has the full power and authority and legal right
to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan and
to execute, deliver and perform, and to enter into and consummate all
transactions contemplated by this Agreement and to conduct its business as
presently conducted; the Originator has duly authorized the execution, delivery
and performance of this Agreement and any agreements contemplated hereby, has
duly executed and delivered this Agreement, and any agreements contemplated
hereby, and this Agreement and each Assignment of Mortgage to the Seller and any
agreements contemplated hereby, constitute the legal, valid and binding
obligations of the Originator, enforceable against it in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and similar laws, and by equitable
principles affecting the enforceability of the rights of creditors; and all
requisite corporate action has been taken by the Originator to make this
Agreement and all agreements contemplated hereby valid and binding upon the
Originator in accordance with their terms;
(iii) Neither the execution and delivery of this Agreement, the sale
of the Mortgage Loans to the Seller, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement will conflict with any of the terms, conditions or
provisions of the Originator's charter or by laws or materially conflict with or
result in a material breach of any of the terms, conditions or provisions of any
legal restriction or any agreement or instrument to which the Originator is now
a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the material violation of
any law, rule, regulation, order, judgment or decree to which the Originator or
its property is subject;
(iv) There is no litigation, suit, proceeding or investigation pending
or, to the Originator's knowledge threatened, or any order or decree
outstanding, which is reasonably likely to have a material adverse effect on the
sale of the Mortgage Loans, the execution, delivery, performance or
enforceability of this Agreement, or which is reasonably likely to have a
material adverse effect on the financial condition of the Originator;
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Originator of or
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compliance by the Originator with this Agreement, except for consents,
approvals, authorizations and orders which have been obtained;
(vi) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Originator, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Originator pursuant to this Agreement are not subject to bulk transfer or
any similar statutory provisions in effect in any applicable jurisdiction;
(vii) The origination, servicing and collection practices with respect
to each Mortgage Note and Mortgage have been legal and in accordance with
applicable laws and regulations, and in all material respects in accordance with
Accepted Servicing Practices. The Originator further represents and warrants
that no escrow payments are required under the related Mortgage Loan and no such
payments are in the possession of, or under the control of, the Originator or
its delegate; no escrow deposits or other charges or payments due under the
Mortgage Note have been capitalized under any Mortgage or the related Mortgage
Note; all Mortgage Interest Rate adjustments have been made in strict compliance
with state and federal law and the terms of the related Mortgage Note; and any
interest required to be paid pursuant to state and local law has been properly
paid and credited;
(viii) The Originator has not used selection procedures that
identified the Mortgage Loans as being less desirable or valuable than other
comparable mortgage loans in the Originator's portfolio at the related Closing
Date;
(ix) [Reserved];
(x) The Originator is an approved seller of residential mortgage loans
for Xxxxxx Xxx or Xxxxxxx Mac and HUD. The Originator is duly qualified,
licensed, registered and otherwise authorized under all applicable federal,
state and local laws and regulations and is in good standing to sell mortgage
loans for Xxxxxx Mae or Xxxxxxx Mac and no event has occurred which would make
the Originator unable to comply with eligibility requirements or which would
require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(xi) The Originator does not believe, nor does it have any cause or
reason to believe, that it cannot perform each and every covenant contained in
this Agreement applicable to it. The Originator is solvent and the sale of the
Mortgage Loans will not cause the Originator to become insolvent;
(xii) [Reserved];
(xiii) [Reserved];
(xiv) [Reserved];
(xv) The Originator has not dealt with any broker, investment banker,
agent or other person that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans to the Seller; and
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(xvi) The Originator is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
performing its obligations under the Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR RELATING
TO THE MORTGAGE LOANS.
The Originator hereby represents and warrants to the Purchaser that as
to each Mortgage Loan as of the Closing Date:
(a) The information set forth in the Mortgage Loan Schedule, including
any diskette or other related data tapes, is true and correct in all material
respects;
(b) The Mortgage creates a (A) first lien and first priority security
interest with respect to each Mortgage Loan which is indicated by the Originator
to be a first lien (as reflected on the Mortgage Loan Schedule) or (B) second
lien and second priority security interest with respect to each Mortgage Loan
which is indicated by the Originator to be a second lien (as reflected on the
Mortgage Loan Schedule), in either case, in the related Mortgaged Property
securing the related Mortgage Note;
(c) None of the Mortgage Loans were 30 days or more delinquent in
their monthly payments as of April 30, 2003; the Originator has not advanced
funds, or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been 30 days or more
delinquent during the preceding twelve-month period;
(d) All taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid;
(e) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by law. No instrument of waiver, alteration or modification has been
executed, and no Mortgagor has been released, in whole or in part, from the
terms thereof except in connection with an assumption agreement and which
assumption agreement is part of the Mortgage File and the terms of which are
reflected in the related Mortgage Loan Schedule; the substance of any such
waiver, alteration or modification has been approved by the issuer of the title
insurance policy, to the extent required by the related policy;
(f) The Mortgage Note and the Mortgage are not subject to any valid
right of rescission, set off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render the Mortgage Note or Mortgage unenforceable, in whole or in part, or
subject to any valid right of rescission, set off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set off,
counterclaim or defense has been asserted with respect
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thereto; and the Mortgagor was not a debtor in any state or federal bankruptcy
or insolvency proceeding at the time the Mortgage Loan was originated;
(g) All buildings or other customarily insured improvements upon the
Mortgaged Property are insured by a Qualified Insurer against loss by fire and
hazards of extended coverage, in an amount representing coverage not less than
the lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loans, and (ii) the greater of (a) either (1) the outstanding principal
balance of the Mortgage Loan with respect to each Mortgage Loan which is
indicated by the Originator to be a first lien (as reflected on the Mortgage
Loan Schedule) or (2) with respect to each second lien Mortgage Loan, the sum of
the outstanding principal balance of the first lien on such Mortgage Loan and
the outstanding principal balance of such second lien Mortgage Loan, and (b) an
amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor and/or the mortgagee from becoming a co-insurer, but in no event
greater than the maximum amount permitted under applicable law. All such
standard hazard policies are in full force and effect and on the date of
origination contained a standard mortgagee clause naming the Originator and its
successors in interest and assigns as loss payee and such clause is still in
effect and all premiums due thereon have been paid. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered by a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration, in an amount not less than the amount required
by the Flood Disaster Protection Act of 1973, as amended. Such policy was issued
by a Qualified Insurer. The Mortgage obligates the Mortgagor thereunder to
maintain all such insurance at the Mortgagor's cost and expense, and upon the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor;
(h) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity, fair housing,
or disclosure laws applicable to the Mortgage Loan have been complied with in
all material respects;
(i) The Mortgage has not been satisfied, canceled or subordinated
(other than the subordination of any second lien Mortgage Loan to the related
first lien), in whole or in part, or rescinded, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or in part nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. The Originator has not waived the performance by
the Mortgagor of any action, if the Mortgagor's failure to perform such action
would cause the Mortgage Loan to be in default, nor has the Originator waived
any default resulting from any action or inaction by the Mortgagor;
(j) The related Mortgage is a valid, subsisting, enforceable and
perfected (A) first lien and first priority security interest with respect to
each Mortgage Loan which is indicated by the Originator to be a first lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien and second priority
security interest with respect to each Mortgage Loan which is indicated by the
Originator to be a second lien Mortgage Loan (as reflected on the Mortgage Loan
Schedule), in either case, on the Mortgaged Property including all buildings on
the Mortgaged Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems affixed to
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such buildings, and all additions, alterations and replacements consisting of
real property or fixtures made at any time with respect to the foregoing
securing the Mortgage Note's original principal balance. Such lien is free and
clear of all adverse claims, liens and encumbrances having priority over the
first lien of the Mortgage subject only to (1) the lien of non delinquent
current real property taxes and assessments not yet due and payable, (2)
covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording which are acceptable to
mortgage lending institutions generally and either (A) which are referred to or
otherwise considered in the appraisal made for the originator of the Mortgage
Loan, or (B) which do not adversely affect the appraised value of the Mortgaged
Property as set forth in such appraisal, (3) other matters which are disclosed
in the applicable title commitment or policy, or to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property and (4) with respect to each
Mortgage Loan which is indicated by the Originator to be a second lien Mortgage
Loan (as reflected on the Mortgage Loan Schedule) a first lien on the Mortgaged
Property. Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected (A) first lien and first
priority security interest with respect to each Mortgage Loan which is indicated
by the Originator to be a first lien (as reflected on the Mortgage Loan
Schedule), or (B) second lien and second priority security interest with respect
to each Mortgage Loan which is indicated by the Originator to be a second lien
Mortgage Loan (as reflected on the Mortgage Loan Schedule), in either case, on
the property described therein;
(k) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
application affecting the rights of creditors and by general equitable
principles and the Originator has taken all action necessary to transfer such
rights of enforceability to the Seller. All parties to the Mortgage Note and the
Mortgage had the legal capacity to enter into the Mortgage Loan and to execute
and deliver the Mortgage Note and the Mortgage. The Mortgage Note and the
Mortgage have been duly and properly executed by such parties. No fraud, error,
misrepresentation, gross negligence or similar occurrence with respect to a
Mortgage Loan has taken place on the part of the Originator or the Mortgagor,
or, on the part of any other party involved in the origination of the Mortgage
Loan. The proceeds of the Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder, and any and all requirements as
to completion of any on site or off site improvements and as to disbursements of
any escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid or are in the process of being paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) Either the Mortgagor is a natural person or the Mortgagor is an
inter-vivos trust acceptable to Xxxxxx Xxx. With respect to each inter-vivos
trust, holding title to the Mortgaged Property in such trust will not diminish
any rights as a creditor including the right to full title to the Mortgaged
Property in the event foreclosure proceedings are initiated;
(m) Each Mortgage Loan is covered by an ALTA lender's title insurance
policy issued by a title insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac and
qualified to do business in the
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jurisdiction where the Mortgaged Property is located, insuring (subject to the
exceptions contained in (j)(1), (2) and (3) above and, with respect to each
Mortgage Loan which is indicated by the Originator to be a second lien Mortgage
Loan (as reflected on the Mortgage Loan Schedule) clause (4)) the Originator,
its successors and assigns, as to the first (or, where applicable, second)
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan and, with respect to each Adjustable Rate Mortgage Loan, against any loss
by reason of the invalidity or unenforceability of the lien resulting from the
provisions of the Mortgage providing for adjustment in the Mortgage Rate and
Monthly Payment. Additionally, such policy affirmatively insures ingress and
egress to and from the Mortgaged Property. Where required by applicable state
law or regulation, the Mortgagor has been given the opportunity to choose the
carrier of the required mortgage title insurance. The Originator, its successors
and assigns, are the sole insureds of such lender's title insurance policy. No
claims have been made under such lender's title insurance policy, and no prior
holder of the related Mortgage, including the Originator, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy;
(n) There is no default, breach, violation or event of acceleration
existing under the Mortgage or the related Mortgage Note and, to the best of
Originator's knowledge, no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event permitting acceleration; and neither the Originator
nor any prior mortgagee has waived any default, breach, violation or event
permitting acceleration. With respect to each Mortgage Loan which is indicated
by the Originator to be a second lien Mortgage Loan (as reflected on the
Mortgage Loan Schedule) (i) the first lien is in full force and effect, (ii)
there is no default, breach, violation or event of acceleration existing under
such first lien mortgage or the related mortgage note, (iii) to the best of
Originator's knowledge, no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration thereunder, and either (A) the first
lien mortgage contains a provision which allows or (B) applicable law requires,
the mortgagee under the second lien Mortgage Loan to receive notice of, and
affords such mortgagee an opportunity to cure any default by payment in full or
otherwise under the first lien mortgage;
(o) There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding that under law
could give rise to such liens) affecting the related Mortgaged Property which
are or may be liens prior to or equal to the lien of the related Mortgage,
unless insured against by the related title insurance policy;
(p) All improvements subject to the Mortgage which were considered in
determining the Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of the Mortgaged Property (and wholly
within the project with respect to a condominium unit) and no improvements on
adjoining properties encroach upon the Mortgaged Property except those which are
insured against by the title insurance policy referred to in clause (m) above
and all improvements on the property comply un all material respects with all
applicable zoning and subdivision laws and ordinances;
(q) The Mortgage Loan was originated by the Originator or a
third-party originator and sold to the Originator. The Mortgage Loan complies
with all the terms, conditions and requirements of the Originator's Underwriting
Standards in effect at the time of origination of
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such Mortgage Loan, subject to exceptions thereto made in the ordinary course of
business. The Mortgage Notes and Mortgages (exclusive of any riders) are on
forms generally acceptable to Xxxxxx Xxx or Xxxxxxx Mac. The Mortgage Loan bears
interest at the Mortgage Rate set forth in the related Mortgage Loan Schedule,
and Monthly Payments under the Mortgage Note are due and payable on the first
day of each month (subject to any grace period set forth in the Mortgage Note).
The Mortgage contains the usual and enforceable provisions of the originator at
the time of origination for the acceleration of the payment of the unpaid
principal amount of the Mortgage Loan if the related Mortgaged Property is sold
without the prior consent of the mortgagee thereunder, subject to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
affecting the rights of creditors and by general equitable principles;
(r) The Mortgaged Property is not subject to any material damage by
waste, fire, earthquake, windstorm, flood or other casualty. At origination of
the Mortgage Loan there was, and there currently is, no proceeding pending or
scheduled for the total or partial condemnation of the Mortgaged Property;
(s) The related Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby. There is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage;
(t) If the Mortgage constitutes a deed of trust, a trustee, authorized
and duly qualified if required under applicable law to act as such, has been
properly designated and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by the Seller to the trustee under
the deed of trust, except in connection with a trustee's sale or attempted sale
after default by the Mortgagor;
(u) The Mortgage File contains an appraisal of the related Mortgaged
Property signed prior to the final approval of the mortgage loan application by
a Qualified Appraiser, who had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan, and the
appraisal and appraiser both satisfy the requirements of Xxxxxx Xxx or Xxxxxxx
Mac and Title XI of the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989 and the regulations promulgated thereunder, all as in effect on the
date the Mortgage Loan was originated;
(v) Each of the Originator, any third-party originator, any servicer
and any intervening mortgagee which have had any interest in the Mortgage,
whether as mortgagee, assignee or otherwise, are (or, during the period in which
they held and disposed of such interest, were) (A) in compliance with any and
all applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located, and (B) (1) organized under the laws of such
state, or (2) qualified to do business in such state, or (3) federal savings and
loan associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such state
or (5) not required to be so qualified;
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(w) The related Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred to in
(j) above;
(x) The Mortgagor has received all disclosure materials required by
applicable law with respect to the making of such mortgage loans;
(y) The Mortgage Loan does not contain "graduated payment" features
and does not have a shared appreciation or other contingent interest feature; no
Mortgage Loan contains any buydown provisions;
(z) The Mortgagor is not in bankruptcy;
(aa) Principal payments on the Mortgage Loan commenced no more than
sixty (60) days after the funds were disbursed in connection with the Mortgage
Loan. The Mortgage Loans have an original term to maturity of not more than 30
years, with interest payable in arrears on the first day of each month. Each
Mortgage Note, other than with respect to a Balloon Mortgage Loan, requires a
monthly payment which is sufficient to fully amortize the original principal
balance over the original term thereof and to pay interest at the related
Mortgage Rate. With respect to each Balloon Mortgage Loan, the Mortgage Note
requires a monthly payment which is sufficient to fully amortize the original
principal balance over the original term thereof and to pay interest at the
related Mortgage Rate and requires a final Monthly Payment substantially greater
than the preceding monthly payment which is sufficient to repay the remained
unpaid principal balance of the Balloon Mortgage Loan as the Due Date of such
monthly payment. No Mortgage Loan contains terms or provisions which would
result in negative amortization;
(bb) No Mortgage Loan is subject to a lender-paid mortgage insurance
policy;
(cc) As to any Mortgage Loan which is not a MERS Mortgage Loan, the
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is located;
(dd) The Mortgaged Property is located in the state identified in the
related Mortgage Loan Schedule and consists of a single parcel of real property
with a detached single family residence erected thereon, or a townhouse, or a
two-to four-family dwelling, or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development or a DE MINIMIS
planned unit development, provided, however, that no residence or dwelling is a
single parcel of real property with a cooperative housing corporation erected
thereon, or a mobile home. As of the date of origination, no portion of the
Mortgaged Property was used for commercial purposes (other than a DE MINIMIS
use), and since the date or origination no portion of the Mortgaged Property has
been used for commercial purposes (other than a DE MINIMIS use);
(ee) Except as set forth on the Mortgage Loan Schedule, none of the
Mortgage Loans are subject to a Prepayment Penalty. For any Mortgage Loan
subject to a Prepayment Penalty, the Mortgage Loan Schedule accurately sets
forth the term and amount of such Prepayment Penalty;
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(ff) The Mortgaged Property is lawfully occupied under applicable law,
and all inspections, licenses and certificates required to be made or issued
with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities;
(gg) If the Mortgaged Property is a condominium unit or a planned unit
development (other than a DE MINIMIS planned unit development), or stock in a
cooperative housing corporation, such condominium, cooperative or planned unit
development project meets the eligibility requirements of Xxxxxx Mae and Xxxxxxx
Mac;
(hh) There is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; the Originator has received no notice of any violation
of any environmental law, rule or regulation with respect to the Mortgaged
Property;
(ii) The Mortgagor has not notified the Originator requesting relief
under the Soldiers' and Sailors' Civil Relief Act of 1940, and the Originator
has no knowledge of any relief requested or allowed to the Mortgagor under the
Soldiers' and Sailors' Civil Relief Act of 1940;
(jj) As of the related Closing Date, no Mortgage Loan was in
construction or rehabilitation status or has facilitated the trade-in or
exchange of a Mortgaged Property;
(kk) No action has been taken or failed to be taken on or prior to the
related Closing Date which has resulted or will result in an exclusion from,
denial of, or defense to coverage under any insurance policy related to a
Mortgage Loan (including, without limitation, any exclusions, denials or
defenses which would limit or reduce the availability of the timely payment of
the full amount of the loss otherwise due thereunder to the insured) whether
arising out of actions, representations, errors, omissions, negligence, or
fraud, or for any other reason under such coverage;
(ll) Except with respect to each Mortgage Loan identified on the
Mortgage Loan Schedule as a correspondent loan, the Mortgage Loan was originated
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance
Originator or similar institution which is supervised and examined by a federal
or state authority. With respect to each Mortgage Loan identified on the
Mortgage Loan Schedule as a correspondent loan, the Mortgage Loan was
re-underwritten by the Originator prior to Originator's purchase thereof;
(mm) Unless otherwise set forth on the related Mortgage Loan Schedule,
no Mortgaged Property is subject to a ground lease. With respect to each ground
lease to which the Mortgaged Property is subject (a "Ground Lease"): (i) the
Mortgagor is the owner of a valid and subsisting interest as tenant under the
Ground Lease; (ii) the Ground Lease is in full force and effect, unmodified and
not supplemented by any writing or otherwise; (iii) all rent, additional rent
and other charges reserved therein have been paid to the extent they are payable
to the date hereof; (iv) the Mortgagor enjoys the quiet and peaceful possession
of the estate demised thereby, subject to any
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sublease; (v) the Mortgagor is not in default under any of the terms thereof and
there are no circumstances which, with the passage of time or the giving of
notice or both, would constitute an event of default thereunder; (vii) the
lessor under the Ground Lease is not in default under any of the terms or
provisions thereof on the part of the lessor to be observed or performed; (vii)
the lessor under the Ground Lease has satisfied all of its repair or
construction obligations, if any, to date pursuant to the terms of the Ground
Lease; and (ix) the execution, delivery and performance of the Mortgage do not
require the consent (other than those consents which have been obtained and are
in full force and effect) under, and will not contravene any provision of or
cause a default under, the Ground Lease;
(nn) With respect to any broker fees collected and paid on any of the
Mortgage Loans, all broker fees have been properly assessed to the Mortgagor and
no claims will arise as to broker fees that are double charged and for which the
Mortgagor would be entitled to reimbursement;
(oo) With respect to any Mortgage Loan as to which an affidavit has
been delivered to the Seller certifying that the original Mortgage Note has been
lost or destroyed and not been replaced, if such Mortgage Loan is subsequently
in default, the enforcement of such Mortgage Loan will not be materially
adversely affected by the absence of the original Mortgage Note;
(pp) Each Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) [reserved];
(rr) [reserved];
(ss) [reserved];
(tt) No Mortgage Loan had a Loan-to-Value Ratio at the time of
origination of more than 100%;
(uu) None of the Mortgage Loans are subject to the Home Ownership and
Equity Protection Act of 1994 or any substantially comparable state law;
(vv) None of the proceeds of any Group I Mortgage Loan or Group II
Mortgage Loan were used to finance single-premium credit insurance policies;
(ww) Any principal advances made to the Mortgagor prior to the related
Closing Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having (A)
first lien priority with respect to each Mortgage Loan which is indicated by the
Originator to be a first lien (as reflected on the Mortgage Loan Schedule), or
(B) second lien priority with respect to each Mortgage Loan which is indicated
by the Originator to be a second lien Mortgage Loan (as reflected on the
Mortgage Loan Schedule), in either case, by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to
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Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan;
(xx) Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months;
(yy) No first lien Mortgage Loan is a Balloon Mortgage Loan; Except
with respect to approximately 99.31% of the Group I Mortgage Loans,
approximately 99.90% of the Group II Mortgage Loans and approximately 98.82% of
the Group III Mortgage Loans by outstanding principal balance of each such
group, no second lien Mortgage Loan is a Balloon Mortgage Loan;
(zz) With respect to each MERS Mortgage Loan, a MIN has been assigned
by MERS and such MIN is accurately provided on the related Mortgage Loan
Schedule. The related assignment of Mortgage to MERS has been duly and properly
recorded;
(aaa) With respect to each MERS Mortgage Loan, the Originator has not
received any notice of liens or legal actions with respect to such Mortgage Loan
and no such notices have been electronically posted by MERS;
(bbb) Any Mortgaged Property that is considered manufactured housing
shall be legally classified as real property, is permanently affixed to a
foundation and must assume the characteristics of site-built housing and must
otherwise conform to the requirements of Xxxxxx Mae and Xxxxxxx Mac;
(ccc) With respect to each Mortgage Loan, the Originator has fully and
accurately furnished complete information on the related borrower credit files
to Equifax, Experian and Trans Union Credit Information Originator, in
accordance with the Fair Credit Reporting Act and its implementing regulations;
(ddd) The Originator has complied with all applicable anti-money
laundering laws and regulations, including without limitation the USA Patriot
Act of 2001 to the extent applicable to the Originator (collectively, the
"Anti-Money Laundering Laws");
(eee) No Mortgage Loan is secured by a Mortgaged Property located in
the State of Georgia;
(fff) With respect to each Mortgage Loan which is a second lien
Mortgage Loan (i) if the related first lien provides for negative amortization,
the LTV was calculated at the maximum principal balance of such first lien that
could result upon application of such negative amortization feature, and (ii)
either no consent for the Mortgage Loan is required by the holder of the first
lien or such consent has been obtained and is contained in the Mortgage File;
(ggg) No Group I Mortgage Loan originated before October 1, 2002 has a
Prepayment Charge term longer than five years after its origination and no Group
I Mortgage Loan originated on or after October 1, 2002 has a Prepayment Charge
term longer than three years after its origination;
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(hhh) Each Group II Mortgage Loan is in compliance with the
anti-predatory lending eligibility for purchase requirements of Xxxxxx Mae's
Selling Guide (this representation and warranty shall be construed only to mean
that none of the representations and warranties specified in clauses (iii)
through (ooo) below have been breached);
(iii) No borrower was encouraged or required to select a Group II
Mortgage Loan product of the same documentation type offered by the Originator
which is a higher cost product designed for less creditworthy borrowers, unless
at the time of the Group II Mortgage Loan's origination, such borrower did not
qualify taking into account credit history and debt to income ratios for a lower
cost credit product then offered by the Originator or any affiliate of the
Originator. If, at the time of loan application, the borrower may have qualified
for a for a lower cost credit product of the same documentation type then
offered by any mortgage lending affiliate of the Originator, the Originator
referred the borrower's application to such affiliate for underwriting
consideration;
(jjj) The methodology used in underwriting the extension of credit for
each Group II Mortgage Loan employs objective mathematical principles which
relate the borrower's income, assets and liabilities to the proposed payment and
such underwriting methodology does not rely on the extent of the borrower's
equity in the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology is designed to determine, among
other things, that at the time of origination the borrower had a reasonable
ability to make timely payments on the Group II Mortgage Loan;
(kkk) With respect to any Group II Mortgage Loan that contains a
provision permitting imposition of a premium upon a prepayment prior to
maturity: (i) prior to such Group II Mortgage Loan's origination, the borrower
agreed to such premium in exchange for a monetary benefit (i.e., such Group II
Mortgage Loan would have been more costly (including but not limited to a rate
or fee increase) if it did not contain such prepayment premium) (ii) prior to
such Group II Mortgage Loan's origination, the borrower was offered the option
of obtaining a Mortgage Loan that did not require payment of such a premium;
provided, that such offer may have been evidenced by the Originator's rate
sheet/pricing grid relating to such Group II Mortgage Loan, which provided that
the Group II Mortgage Loan had a full prepayment premium buy-out pricing
adjustment available; and (iii) the prepayment premium is disclosed to the
borrower in the loan documents pursuant to applicable state and federal law;
(lll) No borrower was required to purchase any credit life,
disability, accident or health insurance product as a condition of obtaining the
extension of credit. No borrower obtained a prepaid single premium credit life,
disability, accident or health insurance policy in connection with the
origination of the Group II Mortgage Loan;
(mmm) All points and fees as such terms are used in Xxxxxx Mae's
Selling Guide related to each Group II Mortgage Loan were disclosed in writing
to the borrower in accordance with applicable state and federal law and
regulation. With respect to Group II Mortgage Loans and except in the case of a
Group II Mortgage Loan in an original principal amount of less than $60,000
which would have resulted in an unprofitable origination, no borrower was
charged "points and fees" (whether or not financed) in an amount greater than 5%
of the principal amount of such loan, such 5% limitation is calculated in
accordance with Xxxxxx Mae's anti-predatory
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lending requirements as set forth in the Xxxxxx Xxx Selling Guide (i.e., for
this purpose, points and fees do not include bona fide discount points; fees
paid for actual services rendered in connection with the origination of the
mortgage, such as attorneys' fees, notary's fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood and
tax certifications, and home inspections; the cost of mortgage insurance or
credit-risk price adjustments; the cost of title, hazard and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25% of the loan amount);
(nnn) All fees and charges (including finance charges) and whether or
not financed, assessed, collected or to be collected in connection with the
origination and servicing of each Group II Mortgage Loan has been disclosed in
writing to the borrower in accordance with applicable state and federal law and
regulation;
(ooo) [Reserved]; and
(ppp) The information set forth in the Prepayment Charge Schedule
(including the Prepayment Charge Summary attached thereto) is complete, true and
correct in all material respects on the date or dates when such information is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms (except to the extent that the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws affecting creditor's rights generally or the collectibility thereof
may be limited due to acceleration in connection with a foreclosure) under
applicable state law.
SECTION 7. REPURCHASE OBLIGATION FOR DEFECTIVE DOCUMENTATION AND FOR
BREACH OF REPRESENTATION AND WARRANTY.
(a) The representations and warranties contained in Section 6 shall
not be impaired by any review and examination of loan files or other documents
evidencing or relating to the Mortgage Loans or any failure on the part of the
Seller or the Purchaser to review or examine such documents and shall inure to
the benefit of any assignee, transferee or designee of the Purchaser, including
the Trustee for the benefit of holders of the Certificates.
Upon discovery by the Seller, the Purchaser or any assignee,
transferee or designee of the Purchaser of any materially defective document in,
or that any material document was not transferred by the Seller (as listed on
the Trustee's Initial Certification) as part of any Mortgage File, or of a
breach of any of the representations and warranties contained in Section 6 that
materially and adversely affects the value of any Mortgage Loan or the interest
therein of the Purchaser or the Purchaser's assignee, transferee or designee,
the party discovering such breach shall give prompt written notice to the
Originator and the Seller; provided, that a breach of the representations and
warranties made in Section 6(uu), (vv), (ggg) and (eee) shall be deemed to
materially and adversely affects the value of any Mortgage Loan or the interest
therein of the Certificateholders. Within sixty (60) days of its discovery or
its receipt of notice of any such missing documentation that was not transferred
by the Seller as described above, or of materially defective documentation, or
of any such breach of a representation and warranty, the Originator or the
Seller, as applicable, promptly shall deliver such missing document or cure such
defect or breach in all material respects or, in the event
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the Originator or the Seller, as applicable, cannot deliver such missing
document or cannot cure such defect or breach, the Originator or the Seller, as
applicable, shall, within ninety (90) days of its discovery or receipt of
notice, either (i) repurchase the affected Mortgage Loan at the Purchase Price
(as defined in the Pooling and Servicing Agreement) or (ii) pursuant to the
provisions of the Pooling and Servicing Agreement, cause the removal of such
Mortgage Loan from the Trust Fund and substitute one or more Qualified
Substitute Mortgage Loans. The Originator or the Seller, as applicable, shall
amend the Closing Schedule to reflect the withdrawal of such Mortgage Loan from
the terms of this Agreement and the Pooling and Servicing Agreement. The
Originator or the Seller, as applicable, shall deliver to the Purchaser such
amended Closing Schedule and shall deliver such other documents as are required
by this Agreement or the Pooling and Servicing Agreement within five (5) days of
any such amendment. Any repurchase pursuant to this Section 7(a) shall be
accomplished by transfer to an account designated by the Purchaser of the amount
of the Purchase Price in accordance with Section 2.03 of the Pooling and
Servicing Agreement. Any repurchase required by this Section shall be made in a
manner consistent with Section 2.03 of the Pooling and Servicing Agreement.
Notwithstanding the foregoing, to the extent a representation or
warranty of the Seller regarding the Mortgage Loans has been breached and the
circumstance constituting the breach also constitutes a breach of a like
representation or warranty given by the Originator as of an earlier date, the
Purchaser's remedy hereunder shall be solely against the Originator and not the
Seller.
Notwithstanding the foregoing, within 90 days of the earlier of
discovery by the Originator or receipt of notice by the Originator of the breach
of the representation of the Originator set forth in Section 6(ppp) above which
materially and adversely affects the interests of the Holders of the Class P
Certificates in any Prepayment Charge, the Originator shall pay the amount of
the scheduled Prepayment Charge, for the benefit of the Holders of the Class P
Certificates by remitting such amount to the Servicer for deposit into the
Collection Account, net of any amount previously collected by the Servicer or
paid by the Servicer, for the benefit of the Holders of the Class P Certificates
in respect of such Prepayment Charge.
(b) It is understood and agreed that the obligations of the Originator
or the Seller, as applicable, set forth in this Section 7 to cure or repurchase
a defective Mortgage Loan constitute the sole remedies of the Purchaser against
the Originator or the Seller, as applicable, respecting a missing document or a
breach of the representations and warranties contained in Section 6.
SECTION 8. CLOSING; PAYMENT FOR THE MORTGAGE LOANS. The closing of the
purchase and sale of the Mortgage Loans shall be held at the New York City
office of Xxxxxxx Xxxxxxxx & Wood at 10:00 a.m. New York City time on the
Closing Date.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller under this
Agreement shall be true and correct in all material respects as of the date
as of which they are made and no event shall have occurred which, with
notice or the passage of time, would constitute a default under this
Agreement;
-21-
(b) All of the representations and warranties of the Originator under
this Agreement shall be true and correct in all material respects as of the
date as of which they are made and no event shall have occurred which, with
notice or the passage of time, would constitute a default under this
Agreement;
(c) The Purchaser shall have received, or the attorneys of the
Purchaser shall have received in escrow (to be released from escrow at the
time of closing), all Closing Documents as specified in Section 9 of this
Agreement, in such forms as are agreed upon and acceptable to the
Purchaser, duly executed by all signatories other than the Purchaser as
required pursuant to the respective terms thereof;
(d) The Seller shall have delivered or caused to be delivered and
released to the Purchaser or to its designee, all documents (including
without limitation, the Mortgage Loans) required to be so delivered by the
Purchaser pursuant to Section 2.01 of the Pooling and Servicing Agreement;
and
(e) All other terms and conditions of this Agreement and the Pooling
and Servicing Agreement shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall deliver or
cause to be delivered to the Seller on the Closing Date, against delivery and
release by the Seller to the Trustee of all documents required pursuant to the
Pooling and Servicing Agreement, the Mortgage Loan Purchase Price for the
Mortgage Loans as specified in Section 3 of this Agreement.
SECTION 9. CLOSING DOCUMENTS. Without limiting the generality of
Section 8 hereof, the closing shall be subject to delivery of each of the
following documents:
(a) A Secretary's Certificate of the Seller, dated the Closing Date,
in form satisfactory to and upon which the Originator, the Purchaser and
UBS Warburg LLC (the "Underwriter") may rely, and attached thereto copies
of the certificate of incorporation, by- laws and certificate of good
standing of the Seller under the laws of Delaware;
(b) An Opinion of Counsel of the Seller, dated the Closing Date, in
form satisfactory to and addressed to the Underwriter;
(c) An Officer's Certificate of the Originator, dated the Closing
Date, in form satisfactory to and upon which the Seller, the Purchaser and
the Underwriter may rely, and attached thereto copies of the certificate of
incorporation, by-laws and certificate of good standing of the Originator
under the laws of its state of incorporation;
(d) An opinion of Counsel of the Originator, dated the Closing Date,
in form satisfactory to and addressed to the Underwriter;
(e) Such opinions of counsel as the Rating Agencies or the Trustee may
request in connection with the sale of the Mortgage Loans by the Seller to
the Purchaser or the Seller's execution and delivery of, or performance
under, this Agreement;
-22-
(f) A letter from Deloitte & Touche, certified public accountants, to
the effect that they have performed certain specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
contained under the captions "Summary--Mortgage Loans," "Risk Factors," (to
the extent of information concerning the Mortgage Loans contained therein)
and "Description of the Mortgage Loans" agrees with the records of the
Originator;
(g) Such further information, certificates, opinions and documents as
the Purchaser or the Underwriter may reasonably request.
SECTION 10. COSTS. The Seller shall pay (or shall reimburse the
Purchaser or any other Person to the extent that the Purchaser or such other
Person shall pay) the fees and expenses of the Seller's accountants and
attorneys and the costs and expenses incurred in connection with obtaining the
documents referred to in Sections 9(a), 9(b), 9(e) and 9(f), the costs and
expenses of printing (or otherwise reproducing) and delivering this Agreement,
the Pooling and Servicing Agreement, the Certificates, the prospectus and
Prospectus Supplement, and any private placement memorandum relating to the
Certificates and other related documents, the initial fees, costs and expenses
of the Trustee, the fees and expenses of the Purchaser's counsel in connection
with the preparation of all documents relating to the securitization of the
Mortgage Loans, the filing fee charged by the Securities and Exchange Commission
for registration of the Certificates and the fees charged by any rating agency
to rate the Certificates. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expense.
SECTION 11. [RESERVED].
SECTION 12. INDEMNIFICATION. The Originator shall indemnify and hold
harmless each of (i) the Purchaser, (ii) the Underwriter, (iii) the Person, if
any, to which the Purchaser assigns its rights in and to a Mortgage Loan and
each of their respective successors and assigns and (iv) each person, if any,
who controls the Purchaser within the meaning of Section 15 of the Securities
Act of 1933, as amended (the "1933 Act") ((i) through (iv) collectively, the
"Indemnified Party") against any and all losses, claims, expenses, damages or
liabilities to which the Indemnified Party may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (a)
any untrue statement or alleged untrue statement of any material fact contained
in the Prospectus Supplement under the caption "The Originator--Underwriting
Standards of the Originator" (such information, the "WMC Information"), or the
omission or the alleged omission by the Originator to state therein the material
fact necessary in order to make the statements therein not misleading and, with
respect to any private placement memorandum, computational material, marketing
material or any information provided by the Underwriter to a purchaser of the
Certificates, any information of a comparable nature, or (ii) the data files
containing information with respect to the Mortgage Loans as transmitted by
modem to the Purchaser by the Originator or any of its affiliates (as such
transmitted information may have been amended in writing by the Originator or
any of its affiliates with the written consent of the Purchaser subsequent to
such transmission) or any data that was correctly and accurately derived
therefrom (it being understood that the Originator shall have no liability
hereunder resulting from the aggregation or manipulation by the Seller or any
Affiliate thereof of information in the Prospectus Supplement derived from
information in the Mortgage Loan Schedule that is otherwise
-23-
accurate information) or (b) any representation, warranty or covenant made by
the Originator or any affiliate of the Originator herein, other than the
representations and warranties found in Section 6(hhh), (iii), (jjj), (kkk),
(lll), (mmm) and (nnn), on which the Purchaser has relied, being, or alleged to
be, untrue or incorrect; provided, however, that to the extent that any such
losses, claims, expenses, damages or liabilities to which the Indemnified Party
may become subject arise out of or are based upon both (1) statements,
omissions, representations, warranties or covenants of the Originator described
in clause (a) or (b) above and (2) any other factual basis, the Originator shall
indemnify and hold harmless the Indemnified Party only to the extent that the
losses, claims, expenses, damages, or liabilities of the person or persons
asserting the claim are determined to rise from or be based upon matters set
forth in clause (1) above and do not result from the gross negligence or willful
misconduct of such Indemnified Party. This indemnity shall be in addition to any
liability that the Originator may otherwise have.
SECTION 13. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST. The sale
and delivery on the Closing Date of the Mortgage Loans described on the Mortgage
Loan Schedule in accordance with the terms and conditions of this Agreement is
mandatory. It is specifically understood and agreed that each Mortgage Loan is
unique and identifiable on the date hereof and that an award of money damages
would be insufficient to compensate the Purchaser for the losses and damages
incurred by the Purchaser in the event of the Seller's failure to deliver the
Mortgage Loans on or before the Closing Date. The Seller hereby grants to the
Purchaser a lien on and a continuing security interest in the Seller's interest
in each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees that it holds such Mortgage Loans in custody
for the Purchaser, subject to the Purchaser's (i) right, prior to the Closing
Date, to reject any Mortgage Loan to the extent permitted by this Agreement, and
(ii) obligation to deliver or cause to be delivered the consideration for the
Mortgage Loans pursuant to Section 8 hereof. Any Mortgage Loans rejected by the
Purchaser shall concurrently therewith be released from the security interest
created hereby. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under this
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of the
conditions set forth in Section 8 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the Mortgage Loan Purchase
Price, or any such condition shall not have been waived or satisfied and the
Purchaser determines not to pay or cause to be paid the Mortgage Loan Purchase
Price, the Purchaser shall immediately effect the re-delivery of the Mortgage
Loans, if delivery to the Purchaser has occurred, and the security interest
created by this Section 12 shall be deemed to have been released.
SECTION 14. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by registered mail, postage prepaid, or transmitted by
fax and, receipt of which is confirmed by telephone, if to the Purchaser,
addressed to the Purchaser at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, facsimile number (000) 000-0000, Attention: Xxxxx XxXxxxxx, or such other
address as may hereafter be furnished to the Seller and the Originator in
writing by the Purchaser; if to the Seller, addressed to the Seller at 1285
Avenue of the Americas, New York, New York
-24-
10019, facsimile number (000) 000-0000, Attention: Xxxxx XxXxxxxx, or to such
other address as the Seller may designate in writing to the Purchaser and the
Originator; and if to the Originator, addressed to WMC Mortgage Corp. at 0000
Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000, facsimile number (818)
592-2605, Attention: Xxxxxx Xxxxxxxxx, or such other address as may hereafter be
furnished to the Seller and the Purchaser in writing by the Originator.
SECTION 15. SEVERABILITY OF PROVISIONS. Any part, provision,
representation or warranty of this Agreement that is prohibited or that is held
to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement that
is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 16. AGREEMENT OF PARTIES. The Originator, the Seller and the
Purchaser each agree to execute and deliver such instruments and take such
actions as either of the others may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement and
the Pooling and Servicing Agreement.
SECTION 17. SURVIVAL. (a) The Seller agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
Purchaser, notwithstanding any investigation heretofore or hereafter made by the
Purchaser or on its behalf, and that the representations, warranties and
agreements made by the Seller herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Loans and
shall continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement, the Pooling and Servicing Agreement or the Trust
Fund. (b) the Originator agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the Seller and
the Purchaser notwithstanding any investigation heretofore or hereafter made by
the Seller or the Purchaser or on the behalf of either of them, and that the
representations, warranties and agreements made by the Originator herein or in
any such certificate shall continue in full force and effect, notwithstanding
subsequent termination of this Agreement, the Pooling and Servicing Agreement or
the Trust Fund.
SECTION 18. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS (OTHER THAN THE CHOICE OF LAW PROVISIONS
THEREIN) AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT
THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL
APPLY TO THIS AGREEMENT.
-25-
SECTION 19. MISCELLANEOUS. This Agreement may be executed in two or
more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans by the Seller to the Purchaser as provided in Section 4
hereof be, and be construed as, a sale of the Mortgage Loans by the Seller to
the Purchaser and not as a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are held to be property of the Seller, then (a) it is the express
intent of the parties that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller and (b) (1) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code; (2) the conveyance provided for in Section 4 hereof shall be
deemed to be a grant by the Seller to the Purchaser of a security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account whether in the form of cash,
instruments, securities or other property; (3) the possession by the Purchaser
or its agent of Mortgage Notes, the related Mortgages and such other items of
property that constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession" by the secured party for purposes of
perfecting the security interest pursuant to the New York Uniform Commercial
Code; and (4) notifications to persons holding such property and
acknowledgments, receipts or confirmations from persons holding such property
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser for the purpose of perfecting such security interest under applicable
law. Any assignment of the interest of the Purchaser pursuant to Section 4(d)
hereof shall also be deemed to be an assignment of any security interest created
hereby. The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement and the Pooling and Servicing Agreement.
The NIMS Insurer, if any, shall be a third party beneficiary hereof
and may enforce the terms hereof as if a party hereto.
-26-
IN WITNESS WHEREOF, the Originator, the Purchaser and the Seller have
caused their names to be signed by their respective officers thereunto duly
authorized as of the date first above written.
MORTGAGE ASSET SECURITIZATION
TRANSACTIONS, INC.
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
UBS WARBURG REAL ESTATE SECURITIES INC.
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
WMC MORTGAGE CORP.
By:________________________________
Name:
Title:
-27-
EXHIBIT E
---------
REQUEST FOR RELEASE OF DOCUMENTS
To: U.S. Bank National Association,
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of May 1, 2003,
among Mortgage Asset Securitization Transactions, Inc.,
Chase Manhattan Mortgage Corporation and U.S. Bank National
Association, Mortgage Pass-Through Certificates, Series
2003-WMC1
-----------------------------------------------------------
In connection with the administration of the Mortgage Loans held by you
as Trustee pursuant to the above-captioned Pooling and Servicing Agreement, we
request the release, and hereby acknowledge receipt of the Trustee's Mortgage
File Or the Mortgage Loan described below, for the reason indicated.
MORTGAGE LOAN NUMBER:
MORTGAGOR NAME. ADDRESS & ZIP CODE:
REASON FOR REQUESTING DOCUMENTS (check one):
1. Mortgage Paid in Full
2. Foreclosure
3. Substitution
4. Other Liquidation (Repurchases, etc.)
5. Nonliquidation Reason:
Address to which Trustee should deliver
the Trustee's Mortgage File:
E-1-1
By:_________________________________
(authorized signer)
Issuer:_____________________________
Address:____________________________
Date:_______________________________
TRUSTEE
U.S. Bank National Association
Please acknowledge the execution of the above request by your signature and
date below:
_____________________ ___________
Signature Date
Documents returned to Trustee:
_____________________ ___________
Trustee Date
E-1-2
EXHIBIT F-1
-----------
FORM OF TRANSFEROR REPRESENTATION LETTER
[Date]
U.S. Bank National Association 000 Xxxx 0xx Xxxxxx Xx. Xxxx, Xxxxxxxxx 00000
Re: MASTR Asset Backed Securities Trust, Series 2003-WMC1, Mortgage
Pass-Through Certificates, Class ___, representing a ___% Class
___ Percentage Interest
---------------------------------------------------------------
Ladies and Gentlemen:
In connection with the transfer by ________________ (the
"Transferor") to ________________ (the "Transferee") of the captioned mortgage
pass-through certificates (the "Certificates"), the Transferor hereby certifies
as follows:
Neither the Transferor nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) has solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c) has
otherwise approached or negotiated with respect to any Certificate, any interest
in any Certificate or any other similar security with any person in any manner,
(d) has made any general solicitation by means of general advertising or in any
other manner, (e) has taken any other action, that (in the case of each of
subclauses (a) through (e) above) would constitute a distribution of the
Certificates under the Securities Act of 1933, as amended (the "1933 Act"), or
would render the disposition of any Certificate a violation of Section 5 of the
1933 Act or any state securities law or would require registration or
qualification pursuant thereto. The Transferor will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to any Certificate. The Transferor will not
sell or otherwise transfer any of the Certificates, except in compliance with
the provisions of that certain Pooling and Servicing Agreement, dated as of May
1, 2003, among Mortgage Asset Securitization Transactions, Inc. as Depositor,
Chase Manhattan Mortgage Corporation as Servicer and U.S. Bank National
Association as Trustee (the "Pooling and Servicing Agreement"), pursuant to
which Pooling and Servicing Agreement the Certificates were issued.
F-1-1
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Very truly yours,
[Transferor]
By:
------------------------------
Name:
Title:
F-1-2
FORM OF TRANSFEREE REPRESENTATION LETTER
[Date]
U.S. Bank National Association 000 Xxxx 0xx Xxxxxx Xx. Xxxx, Xxxxxxxxx 00000
Re: MASTR Asset Backed Securities Trust, Series 2003-WMC1, Mortgage
Pass-Through Certificates, Class ___, representing a ___% Class
___ Percentage Interest
---------------------------------------------------------------
Ladies and Gentlemen:
In connection with the purchase from ______________________
(the ") on the date hereof of the captioned trust certificates (the
"Certificates"), _______________ (the "Transfere") hereby certifies as follows:
1. The Transferee is a "qualified institutional buyer" as that
term is defined iRule 144A ("Rule 144A") under the Securities Act of 1933 (the
"1933 Act") and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Transferee is aware that the
sale to it is being made in reliance on Rule 144A. The Transferee is acquiring
the Certificates for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement referred to below, and (d) any credit enhancement mechanism associated
with the Certificates, that it has requested.
All capitalized terms used but not otherwise defined herein
have the respective meanings assigned thereto in the Pooling and Servicing
Agreement, dated as of May 1, 2003, among Mortgage Asset Securitization
Transactions, Inc. as Depositor, Chase Manhattan Mortgage Corporation as
Servicer and U.S. Bank National Association as Trustee, pursuant to which the
Certificates were issued.
[TRANSFEREE]
By:
-----------------------------
Name:
Title:
F-1-3
ANNEX 1 TO EXHIBIT F-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transfero") and U.S. Bank National Association, as Trustee,
with respect to the mortgage pass-through certificates (the "Certificates")
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
entity purchasing the Certificates (the
").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because (i) the Transferee
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 Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
___ BANK. The Transferee (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
___ SAVINGS AND LOAN. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least
___ BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
--------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at
least $in securities. $25,000,000 as demonstrated in its latest annual
financial statements, A COPY OF WHICH IS ATTACHED HERETO.
F-1-4
___ INSURANCE COMPANY. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee 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 Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) securities issued or guaranteed by the U.S. or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii) securities
owned but subject to a repurchase agreement and (viii) currency, interest rate
and commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee and did not
include any of the securities referred to in the preceding paragraph. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor 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 Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", the
Transferee agrees that, in connection with any purchase of securities sold to
the Transferee for the account of a third party (including any separate account)
in reliance on Rule 144A, the Transferee 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 Transferee agrees that the Transferee
will not purchase securities for a third party
F-1-5
unless the Transferee 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 Transferee 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 Transferee's purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
Dated:
-----------------------------------
Print Name of Transferee
By:
--------------------------------
Name:
Title:
F-1-6
ANNEX 2 TO EXHIBIT F-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and U.S. Bank National Association, as Trustee,
with respect to the mortgage pass- through certificates (the "Certificates")
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the entity purchasing the
Certificates (the "Transferee") or, if the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because the Transferee is part of a Family of
Investment Companies (as defined below), is such an officer of the investment
adviser (the "Adviser").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as defined in Rule 144A because
(i) the Transferee is an investment company registered under the Investment
Company Act of 1940, and (ii) as marked below, the Transferee alone, or the
Transferee's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used.
____ The Transferee owned $___________________ in securities (other
than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (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.
F-1-7
5. The Transferee 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
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. 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 Transferee's purchase of the Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Dated:
-----------------------------------
Print Name of Transferee or Advisor
By:
---------------------------------
Name:
Title:
IF AN ADVISER:
-----------------------------------
Print Name of Transferee
F-1-8
FORM OF TRANSFEREE REPRESENTATION LETTER
----------------------------------------
The undersigned hereby certifies on behalf of the purchaser
named below (the "Purchaser") as follows:
1. I am an executive officer of the Purchaser.
2. The Purchaser is a "qualified institutional buyer", as
defined in Rule 144A, ("Rule 144A") under the Securities Act of 1933, as
amended.
3. As of the date specified below (which is not earlier than
the last day of the Purchaser's most recent fiscal year), the amount of
"securities", computed for purposes of Rule 144A, owned and invested on a
discretionary basis by the Purchaser was in excess of $100,000,000.
Name of Purchaser
--------------------------
By:
-----------------------
Name:
Title:
Date of this certificate:
Date of information provided in paragraph 3
F-1-9
EXHIBIT F-2
-----------
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF NEW YORK )
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ______________________ of
____________________________ (the "Owner") a corporation duly organized and
existing under the laws of ______________, the record owner of MASTR Asset
Backed Securities Trust, Series 2003-WMC1, Mortgage Pass-Through Certificates,
Class R Certificates, (the "Class R Certificates"), on behalf of whom I make
this affidavit and agreement. Capitalized terms used but not defined herein have
the respective meanings assigned thereto in the Pooling and Servicing Agreement
pursuant to which the Class R Certificates were issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of
____________, 20__ and (ii) is acquiring the Class R Certificates for its own
account or for the account of another Owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
possession of the United States. For this purpose, a "disqualified organization"
means the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
or, if such transfer is through an agent (which person includes a broker,
nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that
the person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the transferee
is a Permitted Transferee and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that each of the
Class R Certificates may be a "noneconomic residual interest" within the meaning
of proposed Treasury regulations promulgated under 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 is to impede the assessment or collection of tax.
F-2-1
4. The Owner is aware of the tax imposed on a "pass-through
entity" holding the Class R Certificates if, at any time during the taxable year
of the pass-through entity, a non-Permitted Transferee is the record holder of
an interest in such entity. (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.)
5. The Owner is aware that the Trustee will not register the
transfer of any Class R Certificate unless the transferee, or the transferee's
agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. The Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is
_________________.
8. The Owner has reviewed the restrictions set forth on the
face of the Class R Certificates and the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement under which the Class R Certificates were issued
(in particular, clauses (iii)(A) and (iii)(B) of Section 5.02(d) which authorize
the Trustee to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Trustee in the event that the Owner holds such Certificate
in violation of Section 5.02(d)); and that the Owner expressly agrees to be
bound by and to comply with such restrictions and provisions.
9. The Owner is not acquiring and will not transfer the Class
R Certificates in order to impede the assessment or collection of any tax.
10. The Owner anticipates that it will, so long as it holds
the Class R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class R Certificates that the
Owner intends to pay taxes associated with holding such Class R Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Class R Certificates.
11. The Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds the
Class R Certificates.
12. The Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
13. The Owner is not acquiring the Class R Certificates with
the intent to transfer the Class R Certificates to any person or entity that
will not have sufficient assets to pay any taxes
F-2-2
owed by the holder of such Class R Certificates, or that may become insolvent or
subject to a bankruptcy proceeding, for so long as the Class R Certificates
remain outstanding.
14. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class R Certificate were issued and will not
consummate any such transfer if it knows, or knows facts that should lead it to
believe, that any such representations are false.
15. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring the Class R Certificates to
impede the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder of the Class R Certificates; (ii) may
become insolvent or subject to a bankruptcy proceeding for so long as the Class
R Certificates remains outstanding; and (iii) is not a "Permitted Transferee".
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States may be included in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
17. The Owner of the Class R Certificate, hereby agrees that
in the event that the Trust Fund created by the Pooling and Servicing Agreement
is terminated pursuant to Section 9.01 thereof, the undersigned shall assign and
transfer to the Holders of the Class CE Certificates (with respect to a
termination of REMIC I) any amounts in excess of par received in connection with
such termination. Accordingly, in the event of such termination, the Trustee is
hereby authorized to withhold any such amounts in excess of par and to pay such
amounts directly to the Holders of the Class CE Certificates. This agreement
shall bind and be enforceable against any successor, transferee or assigned of
the undersigned in the Class R Certificate. In connection with any transfer of
the Class R Certificate, the Owner shall obtain an agreement substantially
similar to this clause from any subsequent owner.
F-2-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
__________, 20__.
[OWNER]
By:
-----------------------------
Name:
Title: [Vice] President
ATTEST:
By:
---------------------------------
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
----------------------------
Notary Public
County of __________________
State of ___________________
My Commission expires:
F-2-4
FORM OF TRANSFEROR AFFIDAVIT
----------------------------
STATE OF NEW YORK )
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ____________________ of ____________________________
(the "Owner"), a corporation duly organized and existing under the laws of
______________, on behalf of whom I make this affidavit.
2. The Owner is not transferring the Class R Certificates (the
"Residual Certificates") to impede the assessment or collection of any tax.
3. The Owner has no actual knowledge that the Person that is
the proposed transferee (the "Purchaser") of the Residual Certificates: (i) has
insufficient assets to pay any taxes owed by such proposed transferee as holder
of the Residual Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Residual Certificates remain
outstanding and (iii) is not a Permitted Transferee.
4. The Owner understands that the Purchaser has delivered to
the Trustee a transfer affidavit and agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit F-2. The Owner does not know or
believe that any representation contained therein is false.
5. At the time of transfer, the Owner has conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Owner has determined that the Purchaser has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Owner understands that the transfer of a
Residual Certificate may not be respected for United States income tax purposes
(and the Owner may continue to be liable for United States income taxes
associated therewith) unless the Owner has conducted such an investigation.
6. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
F-2-5
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
___________, 20__.
[OWNER]
By:
--------------------------------
Name:
Title: [Vice] President
ATTEST:
By:
---------------------------------
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
20___.
----------------------------
Notary Public
County of __________________
State of ___________________
My Commission expires:
F-2-6
EXHIBIT G
---------
FORM OF CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________, 20__
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chase Manhattan Mortgage Corporation
00000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
U.S. Bank National Association 000 Xxxx 0xx Xxxxxx Xx. Xxxx, Xxxxxxxxx 00000
Re: MASTR Asset Backed Securities Trust, Series 2003-WMC1, Mortgage
Pass-Through Certificates, Class ___
---------------------------------------------------------------
Dear Sirs:
_______________________ (the "Transferee") intends to acquire
from _____________________ (the "Transferor") $____________ Initial Certificate
Principal Balance of MASTR Asset Backed Securities Trust, Series 2003-WMC1,
Mortgage Pass-Through Certificates, Class [CE] [P] [R](the "Certificates"),
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of May 1, 2003, among Mortgage Asset Securitization
Transactions, Inc. as depositor (the "Depositor"), Chase Manhattan Mortgage
Corporation as Servicer (the "Servicer") and U.S. Bank National Association as
trustee (the "Trustee"). Capitalized terms used herein and not otherwise defined
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to, and covenants with
the Depositor, the Trustee and the Servicer that:
The Certificates (i) are not being acquired by, and will not be
transferred to, any employee benefit plan within the meaning of section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other retirement arrangement, including individual retirement accounts and
annuities, Xxxxx plans and bank collective investment funds and insurance
company general or separate accounts in which such plans, accounts or
arrangements are invested, that is subject to Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986 (the "Code") (any of the foregoing, a
"Plan"), (ii) are not being acquired with "plan assets" of a Plan within the
meaning of the Department of Labor ("DOL") regulation, 29 C.F.R.ss.2510.3-101,
and (iii) will not be transferred to any entity that is deemed to be investing
in plan assets within the meaning of the DOL regulation at 29 X.X.X.xx.
2510.3-101.
G-1
Very truly yours,
-----------------------------
By:__________________________
Name:
Title:
G-2
EXHIBIT H
---------
FORM OF REPORT PURSUANT TO SECTION 4.06
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
Annual Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (Fee Required)
For fiscal year ended ________________
Commission file number: 333-_______
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
(as depositor under the Pooling and Servicing Agreement,
dated as of May 1, 2003, providing for the issuance of
Mortgage Pass-Through Certificates, Series 2003-WMC1)
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
------------------------------------------------
(Exact name of registrant as specified in its charter)
--------------------------------------------------------------------------------
DELAWARE [__]
---------------------------------------- ----------------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation) Identification Number)
1285 Avenue of the Americas
Xxx Xxxx, Xxx XxxX 00000 10019
---------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: [___]
================================================================================
H-1
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate whether the Registrant: (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
/X/ YES / / No
Item 1. Business:
Not applicable
Item 2. Properties:
Not applicable
Item 3. Legal Proceedings:
None
Item 4. Submission of Matters to a Vote of Security-Holders
None
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
To the best knowledge of the registrant there is no established public trading
market for the certificates.
There are approximately _____ holders of record as of the end of the reporting
year.
Item 6. Selected Financial Data.
Not applicable.
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Not applicable
H-2
Item 8. Financial Statements and Supplementary Data.
Not applicable.
Item 9. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure
None
Item 10.
Not applicable
Item 11. Executive Compensation
Not applicable
Item 12. Security Ownership of Certain Beneficial Owners and Management
Not applicable
Item 13. Certain Relationships and Related Transactions
Not applicable
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
a) The company filed on Form 8-K, separately for each
distribution date, the distribution of funds related to the
trust for each of the following distribution
dates:
DISTRIBUTION DATE FORM 8-K FILING DATE
----------------- --------------------
_________________ ________________
_________________ ________________
_________________ ________________
b) 99.1 Annual Report of Independent Public Accountants'
as to master servicing activities or servicing
activities, as applicable
(a) Chase Manhattan Mortgage Corporation, as Servicer
99.2 Annual Statement of Compliance with obligations under
the Pooling and Servicing Agreement or servicing
agreement, as applicable, of:
(a) Chase Manhattan Mortgage Corporation, as Servicer
H-3
Such document (i) is not filed herewith since such document was not received by
the Reporting Person at least three business days prior to the due date of this
report; and (ii) will be included in an amendment to this report on Form 10-K/A
to be filed within 30 days of the Reporting Person's receipt of such document.
H-4
Signatures
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly authorized.
Date: ___________
Mortgage Asset Securitization
Transactions, Inc., by U.S. Bank
National Association, as Trustee
for MASTR Asset Backed Securities
Trust, Series 2003-WMC1, Mortgage
Pass-Through Certificates.
By:
-------------------------------
Name:
Title:
Company:
H-5
EXHIBIT I
FORM OF LOST NOTE AFFIDAVIT
Loan #: ____________
Borrower: _____________
LOST NOTE AFFIDAVIT
I, as ____________________ of ______________________, a
_______________ corporation am authorized to make this Affidavit on behalf of
_____________________ (the "Seller"). In connection with the administration of
the Mortgage Loans held by ____________________, a _________________ corporation
as Seller on behalf of Mortgage Asset Securitization Transactions, Inc. (the
"Purchaser"), _____________________ (the "Deponent"), being duly sworn, deposes
and says that:
1. The Seller's address is: _____________________
_____________________
_____________________
2. The Seller previously delivered to the Purchaser a signed
Initial Certification with respect to such Mortgage and/or
Assignment of Mortgage;
3. Such Mortgage Note and/or Assignment of Mortgage was assigned
or sold to the Purchaser by ________________________, a
____________ corporation pursuant to the terms and provisions
of a Mortgage Loan Purchase Agreement dated as of
__________ __, _____;
4. Such Mortgage Note and/or Assignment of Mortgage is not
outstanding pursuant to a request for release of Documents;
5. Aforesaid Mortgage Note and/or Assignment of Mortgage (the
"Original") has been lost;
6. Deponent has made or caused to be made a diligent search for
the Original and has been unable to find or recover same;
7. The Seller was the Seller of the Original at the time of the
loss; and
8. Deponent agrees that, if said Original should ever come into
Seller's possession, custody or power, Seller will immediately
and without consideration surrender the Original to the
Purchaser.
9. Attached hereto is a true and correct copy of (i) the Note,
endorsed in blank by the Mortgagee and (ii) the Mortgage or
Deed of Trust (strike one) which secures the Note, which
I-1
Mortgage or Deed of Trust is recorded in the county
where the property is located.
10. Deponent hereby agrees that the Seller (a) shall indemnify and
hold harmless the Purchaser, its successors and assigns,
against any loss, liability or damage, including reasonable
attorney's fees, resulting from the unavailability of any
Notes, including but not limited to any loss, liability or
damage arising from (i) any false statement contained in
this Affidavit, (ii) any claim of any party that has already
purchased a mortgage loan evidenced by the Lost Note or any
interest in such mortgage loan, (iii) any claim of any
borrower with respect to the existence of terms of a
mortgage loan evidenced by the Lost Note on the related
property to the fact that the mortgage loan is not evidenced
by an original note and (iv) the issuance of a new
instrument in lieu thereof (items (i) through (iv) above
hereinafter referred to as the "Losses") and (b) if required
by any Rating Agency in connection with placing such Lost
Note into a Pass-Through Transfer, shall obtain a surety
from an insurer acceptable to the applicable Rating Agency
to cover any Losses with respect to such Lost Note.
11. This Affidavit is intended to be relied upon by the Purchaser,
its successors and assigns. _____________________, a
______________ corporation represents and warrants that is has
the authority to perform its obligations under this Affidavit
of Lost Note.
Executed this ____ day, of ___________ ______.
SELLER
By:
-------------------------
Name:
Title:
On this _____ day of ________, _____, before me appeared
_________________ to me personally known, who being duly sworn did say that he
is the _____________________ of ____________________ a ______________
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 and
deed of said corporation.
Signature:
[Seal]
I-2
EXHIBIT J-1
FORM CERTIFICATION TO BE PROVIDED BY THE TRUSTEE
WITH FORM 10-K
Re: MASTR Asset Backed Securities Trust 2003-WMC1
Mortgage Pass Through Certificates, Series 2003-WMC1
I, _______________, the senior officer of U.S. Bank National
Acertify that:
l. I have reviewed this annual report on Form 10-K, and all
reports oForm 8-K containing distribution and servicing reports filed in respect
of periods included in the year covered by this annual report, of Mortgage Asset
Securitization Transactions, Inc. (the "Registrant");
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 is included in these reports;
4. Based on my knowledge and upon the annual compliance
statement included in the report and required to be delivered to the Trustee in
accordance with the terms of the Pooling and Servicing Agreement, and except as
disclosed in the reports, the Servicer has fulfilled its obligations under the
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.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties: Chase
Manhattan Mortgage Corporation.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement, dated May 1,
2003 (the "Pooling and Servicing Agreement"), among the Registrant as depositor,
Chase Manhattan Mortgage Corporation as Servicer and U.S. Bank National
Association as trustee.
J-1
U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
Title:
Date:
X-0
XXXXXXX X-0
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR BY THE SERVICER
Re: MASTR Asset Backed Securities Trust 2003-WMC1
Mortgage Pass Through Certificates, Series 2003-WMC1
I, [identify the certifying individual], a [title] of Chase
Manhattan Mortgage Corporation, as Servicer (the "Servicer"), hereby certify to
U.S. Bank National Association (the "T and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. Based on our knowledge, the information prepared by the
Servicer and relating to the mortgage loans serviced by the Servicer is accurate
and complete in all material respects as of the last day of the period covered
by such report;
2. Based on our knowledge, the servicing information required
to be provided by the Servicer pursuant to the Pooling and Servicing Agreement
has been provided to the Trustee;
3. Based upon the review required under the Pooling and
Servicing Agreement, and except as disclosed in its reports, the Servicer as of
the last day of the period covered by such reports has fulfilled its obligations
under the Pooling and Servicing Agreement; and
4. The Servicer has disclosed to its independent auditor, who
issues the independent auditor's report on the Uniform Single Attestation
Program for Mortgage Bankers for the Servicer, any significant deficiencies
relating to the Servicer's] compliance with minimum servicing standards.
Capitalized terms used but not defined herein have the
meanings ascribed to them in the Pooling and Servicing Agreement, dated May 1,
2003 (the "Pooling and Servicing Agreement"), among the Registrant as depositor,
the Servicer as Servicer and the Trustee as trustee.
CHASE MANHATTAN MORTGAGE
CORPORATION
By:
-------------------------------------
Name:
Title:
Date:
J-3
EXHIBIT K
---------
FORM OF CUSTODIAL AGREEMENT
(Available Upon Request)
K-1
Schedule 1
MORTGAGE LOAN SCHEDULE
[FILED BY PAPER]
Schedule 1-1
Schedule 2
SCHEDULE OF PREPAYMENT CHARGES
Available Upon Request
Schedule 2-1
