EXHIBIT 4
EXECUTION COPY
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MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.,
Depositor
UBS WARBURG REAL ESTATE SECURITIES INC.,
Transferor
XXXXX FARGO BANK MINNESOTA, N.A.,
Master Servicer and Custodian
U.S. BANK NATIONAL ASSOCIATION,
Custodian
and
JPMORGAN CHASE BANK,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2003
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MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
MORTGAGE PASS-THROUGH CERTIFICATES, Series 2003-4
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.....................................................
Section 1.02 Certain Calculations............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans....................................
Section 2.02 Acceptance by Trustee of the Mortgage Loans.....................
Section 2.03 Remedies for Breaches of Representations and Warranties.........
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.................................................
Section 2.05 [Reserved]......................................................
Section 2.06 Execution and Delivery of Certificates..........................
Section 2.07 REMIC Matters...................................................
Section 2.08 Covenants of the Master Servicer................................
Section 2.09 Representations and Warranties of the Master Servicer...........
Section 2.10 Representations and Warranties of the Custodians................
ARTICLE III
ADMINISTRATION AND MASTER
SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicing of Mortgage Loans..............................
Section 3.02 Monitoring of Servicers.........................................
Section 3.03 [Reserved]......................................................
Section 3.04 Rights of the Depositor and the Trustee in Respect of the
Master Servicer................................................
Section 3.05 Trustee to Act as Master Servicer...............................
Section 3.06 Protected Accounts..............................................
Section 3.07 Collection of Mortgage Loan Payments; Collection Account;
Distribution Account...........................................
Section 3.08 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts................................................
Section 3.09 Access to Certain Documentation and Information Regarding
the Mortgage Loans.............................................
Section 3.10 Permitted Withdrawals from the Collection Account and
Distribution Account...........................................
Section 3.11 Maintenance of Hazard Insurance.................................
Section 3.12 Presentment of Claims and Collection of Proceeds................
Section 3.13 Maintenance of the Primary Insurance Policies...................
Section 3.14 Realization upon Defaulted Mortgage Loans.......................
Section 3.15 REO Property....................................................
Section 3.16 Due-on-Sale Clauses; Assumption Agreements......................
Section 3.17 Trustee to Cooperate; Release of Mortgage Files.................
Section 3.18 Documents, Records and Funds in Possession of Master
Servicer and Custodians to Be Held for the Trustee.............
Section 3.19 Master Servicing Compensation...................................
Section 3.20 Access to Certain Documentation.................................
Section 3.21 Annual Statement as to Compliance...............................
Section 3.22 Annual Independent Public Accountants' Servicing
Statement; Financial Statements................................
Section 3.23 Errors and Omissions Insurance; Fidelity Bonds..................
Section 3.24 Master Servicer to Remit Prepayment Penalties to the
Transferor.....................................................
ARTICLE IV
DISTRIBUTIONS AND SERVICING ADVANCES
Section 4.01 Advances........................................................
Section 4.02 Priorities of Distribution......................................
Section 4.03 Allocation of Realized Losses...................................
Section 4.04 Distribution Date Statements to Certificateholders..............
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates................................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.......................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...............
Section 5.04 Persons Deemed Owners...........................................
Section 5.05 Access to List of Certificateholders' Names and Addresses.......
Section 5.06 Maintenance of Office or Agency.................................
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Depositor, the Master
Servicer and the Custodians....................................
Section 6.02 Merger or Consolidation of the Depositor, the Master
Servicer and the Custodians....................................
Section 6.03 Limitation on Liability of the Depositor, the Transferor,
the Master Servicer, the Custodians and Others.................
Section 6.04 Limitation on Resignation of Master Servicer....................
Section 6.05 Sale and Assignment of Master Servicing Rights..................
Section 6.06 Fees of the Custodians..........................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...............................................
Section 7.02 Trustee to Act; Appointment of Successor........................
Section 7.03 Notification to Certificateholders..............................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE MASTER SERVICER
Section 8.01 Duties of Trustee...............................................
Section 8.02 Certain Matters Affecting the Trustee...........................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans...........
Section 8.04 Trustee May Own Certificates....................................
Section 8.05 Trustee's Fees and Expenses.....................................
Section 8.06 Eligibility Requirements for Trustee............................
Section 8.07 Resignation and Removal of Trustee..............................
Section 8.08 Successor Trustee...............................................
Section 8.09 Merger or Consolidation of Trustee..............................
Section 8.10 Appointment of Co-Trustee or Separate Trustee...................
Section 8.11 Tax Matters.....................................................
Section 8.12 Periodic Filings................................................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of All Mortgage
Loans..........................................................
Section 9.02 Final Distribution on the Certificates..........................
Section 9.03 Additional Termination Requirements.............................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.......................................................
Section 10.02 Recordation of Agreement; Counterparts..........................
Section 10.03 Governing Law...................................................
Section 10.04 Intention of Parties............................................
Section 10.05 Notices.........................................................
Section 10.06 Severability of Provisions......................................
Section 10.07 Assignment......................................................
Section 10.08 Limitation on Rights of Certificateholders......................
Section 10.09 Inspection and Audit Rights.....................................
Section 10.10 Certificates Nonassessable and Fully Paid.......................
SCHEDULES
Schedule I Mortgage Loan Schedule............................................
Schedule II Representations and Warranties as to the Mortgage Loans...........
EXHIBITS
Exhibit A-1-A-1 Form of Class 1-A-1 Certificate.............................
Exhibit A-2-A-1 Form of Class 2-A-1 Certificate.............................
Exhibit A-3-A-1 Form of Class 3-A-1 Certificate ............................
Exhibit A-A-R Form of Class A-R Certificate...............................
Exhibit B Form of Class X-0, X-0 or B-3 Certificate...................
Exhibit C Form of Class X-0, X-0 or B-6 Certificate...................
Exhibit D [Reserved]..................................................
Exhibit E Form of Reverse of Certificates.............................
Exhibit F Form of Initial Certification of Custodian..................
Exhibit G Form of Final Certification of Custodian....................
Exhibit H Form of Class A-R Transfer Affidavit........................
Exhibit I Form of Transferor Certificate..............................
Exhibit J Form of Investment Letter (Non-Rule 144A)...................
Exhibit K Form of Rule 144A Letter....................................
Exhibit L Form of Request for Release of Documents....................
Exhibit M Form of Certification to be Provided with Form 10-K.........
THIS POOLING AND SERVICING AGREEMENT, dated as of September 1, 2003,
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., a Delaware corporation,
as depositor (the "Depositor"), UBS WARBURG REAL ESTATE SECURITIES INC., a
Delaware corporation, as transferor (the "Transferor"), XXXXX FARGO BANK
MINNESOTA, N.A., a national banking association, as master servicer (in such
capacity, the "Master Servicer") and as a custodian (in such capacity, a
"Custodian"), U.S. BANK NATIONAL ASSOCIATION, a national banking association
("U.S. Bank"), as a custodian (a "Custodian") and JPMORGAN CHASE BANK, a New
York banking corporation, as trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund is being conveyed
to the Trustee to create a trust for the benefit of the Certificateholders. The
Trust Fund for federal income tax purposes will consist of two REMICs. The
Lower-Tier REMIC will consist of all of the assets constituting the Trust Fund
(other than the Lower-Tier REMIC Regular Interests and proceeds thereof in the
Distribution Account) and will be evidenced by the Lower-Tier REMIC Regular
Interests (which will be uncertificated and will represent the "regular
interests" in the Lower-Tier REMIC) and the Class A-LR Interest as the single
"residual interest" in the Lower-Tier REMIC. The Trustee will hold the
Lower-Tier REMIC Regular Interests. The Upper-Tier REMIC will consist of the
Lower-Tier REMIC Regular Interests and proceeds thereof in the Distribution
Account and will be evidenced by the Regular Certificates (which will represent
the " regular interests" in the Upper-Tier REMIC) and the Class A-UR Interest as
the single "residual interest" of the Upper-Tier REMIC. The "latest possible
maturity date" for federal income tax purposes of all interests created hereby
will be the Latest Possible Maturity Date. The Class A-R Certificates will
represent the Class A-LR Interest and the Class A-UR Interest.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
Integral
Initial Class Initial Multiples
Principal Pass-Through Minimum in Excess of
Balance Rate Denomination Minimum
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Class 1-A-1 $ 78,739,000 4.472248%(1) $ 25,000 $1
Class 2-A-1 $104,537,000 4.443596%(2) $ 25,000 $1
Class 3-A-1 $181,505,000 4.976496%(3) $ 25,000 $1
Class A-R(4) $ 100 4.472248%(5) $ 100 N/A
Class B-1 $ 11,060,000 4.714936%(6) $ 25,000 $1
Class B-2 $ 4,463,000 4.714936%(6) $ 25,000 $1
Class B-3 $ 3,298,000 4.714936%(6) $ 25,000 $1
Class B-4 $ 1,746,000 4.714936%(6) $ 25,000 $1
Class B-5 $ 1,164,000 4.714936%(6) $ 25,000 $1
Class B-6 $ 1,553,435 4.714936%(6) $ 25,000 $1
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(1) The Pass-Through Rate for the Class 1-A-1 Certificates for each
Distribution Date will be a per annum rate equal to the weighted average
of the Net Mortgage Rates on the Group 1 Mortgage Loans, weighted on the
basis of the respective Scheduled Principal Balances, as of the first day
of the related Interest Accrual Period (after taking into account
scheduled payments of principal on that date).
(2) The Pass-Through Rate for the Class 2-A-1 Certificates for each
Distribution Date will be a per annum rate equal to the weighted average
of the Net Mortgage Rates on the Group 2 Mortgage Loans, weighted on the
basis of the respective Scheduled Principal Balances, as of the first day
of the related Interest Accrual Period (after taking into account
scheduled payments of principal on that date).
(3) The Pass-Through Rate for the Class 3-A-1 Certificates for each
Distribution Date will be a per annum rate equal to the weighted average
of the Net Mortgage Rates on the Group 3 Mortgage Loans, weighted on the
basis of the respective Scheduled Principal Balances, as of the first day
of the related Interest Accrual Period (after taking into account
scheduled payments of principal on that date).
(4) The Class A-R Certificates will represent the Class A-LR Interest and the
Class A-UR Interest.
(5) The Pass-Through Rate for the Class A-R Certificates will be a per annum
rate equal to the weighted average of the Net Mortgage Rates on the Group
1 Mortgage Loans, weighted on the basis of the respective Scheduled
Principal Balances, as of the first day of the related Interest Accrual
Period (after taking into account scheduled payments of principal on that
date).
(6) The Pass-Through Rate for the Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates for each Distribution Date will be a
per annum rate equal to the weighted average (weighted on the basis of the
portion of the aggregate Certificate Principal Balance of the Subordinate
Certificates attributable to each Loan Group as of the Business Day
immediately prior to that Distribution Date) of the Net Mortgage Rates on
the Mortgage Loans in each Loan Group, weighted on the basis of the
respective Scheduled Principal Balances, as of the first day of the
related Interest Accrual Period (after taking into account scheduled
payments of principal on that date).
Set forth below are designations of Classes of Certificates to the categories
used herein:
Book-Entry Certificates.......... All Classes of Offered Certificates other
than the Physical Certificates.
ERISA-Restricted Certificates.... The Residual Certificates and the Private
Certificates.
Group 1 Certificates............. The Class 1-A-1 and Class A-R Certificates.
Group 2 Certificates............. The Class 2-A-1 Certificates.
Group 3 Certificates............. The Class 3-A-1 Certificates.
Offered Certificates............. All Classes of Certificates other than the
Private Certificates.
Physical Certificates............ The Private Certificates and the Residual
Certificates.
Private Certificates............. The Class B-4, Class B-5 and Class B-6
Certificates.
Rating Agencies.................. Xxxxx'x and S&P.
Regular Certificates............. All Classes of Certificates, other than
the Residual Certificates.
Residual Certificates............ The Class A-R Certificates.
Senior Certificates.............. The Group 1 Certificates, Group 2
Certificates and Group 3 Certificates.
Subordinate Certificates......... The Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6
Certificates.
Defined terms and provisions herein relating to statistical rating
agencies not designated above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accrued Certificate Interest: With respect to any Distribution Date
and any interest-bearing Class, the sum of (i) one month's interest accrued
during the related Interest Accrual Period at the Pass-Through Rate for such
Class on the related Class Principal Balance, subject to reduction as provided
in Section 4.02(c) and (ii) any Class Unpaid Interest Amounts for such Class.
Adjustment Amount: With respect to the Special Hazard Loss Coverage
Amount and, with respect to each anniversary of the Cut-off Date, the amount, if
any, by which the Special Hazard Loss Coverage Amount (without giving effect to
the deduction of the Adjustment Amount for such anniversary) exceeds the
greatest of (x) the product of 1% and the outstanding principal balance of all
the related Mortgage Loans on the Distribution Date immediately preceding such
anniversary, (y) the outstanding principal balance of related Mortgage Loans
secured by Mortgaged Properties in the highest California zip code concentration
on the Distribution Date immediately preceding such anniversary and (z) twice
the outstanding principal balance of the related Mortgage Loan which has the
largest outstanding principal balance on the Distribution Date immediately
preceding such anniversary.
Adjustment Date: As to each Mortgage Loan, the date on which the
Mortgage Rate is adjusted in accordance with the terms of the related Mortgage
Note and Mortgage.
Advance: An advance of principal or interest required to be made by
the applicable Servicer pursuant to the related Servicing Agreement or required
to be made by the Master Servicer with respect to any Distribution Date pursuant
to Section 4.01.
Affiliate: When used with reference to a specified Person that (i)
directly or indirectly controls or is controlled by or is under common control
with the specified Person, (ii) is an officer of, partner in or trustee of, or
serves in a similar capacity with respect to, the specified Person or of which
the specified Person is an officer, partner or trustee, or with respect to which
the specified Person serves in a similar capacity or (iii) directly or
indirectly is the beneficial owner of 10% or more of any class of equity
securities of the specified Person or of which the specified Person is directly
or indirectly the owner of 10% or more of any class of equity securities.
Aggregate Pool Principal Balance: As to any Distribution Date, the
aggregate of the Scheduled Principal Balances of the Mortgage Loans which were
Outstanding Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date.
Aggregate Subordinate Optimal Principal Amount: For any Distribution
Date, the sum of the Subordinate Optimal Principal Amounts for all of the Loan
Groups.
Aggregate Subordinate Percentage: As of any Distribution Date, the
aggregate Class Principal Balance for the Subordinate Certificates immediately
prior to such Distribution Date divided by the sum of the Group Pool Principal
Balance for all of the Loan Groups.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Alliance Mortgage: Alliance Mortgage Company, and its successors and
assigns, in its capacity as Servicer of the Alliance Mortgage Loans.
Alliance Mortgage Loans: The Mortgage Loans for which Alliance
Mortgage is listed as "Servicer" on the Mortgage Loan Schedule.
Alliance Mortgage Servicing Agreement: Solely with respect to the
Alliance Mortgage Loans, the Seller's Purchase, Warranties and Servicing
Agreement, dated as of May 1, 2002, between the Transferor, as purchaser, and
Alliance Mortgage, as seller and as servicer, and as the same may be amended
further from time to time, and any term sheets related to the Alliance Mortgage
Loans.
Allocable Share: For any Distribution Date and each Class of
Subordinate Certificates, the portion of the Aggregate Subordinate Optimal
Principal Amount allocable to such Class, equal to the product of the Aggregate
Subordinate Optimal Principal Amount on such Distribution Date and a fraction,
the numerator of which is the related Class Principal Balance thereof and the
denominator of which is the aggregate of the Class Principal Balances of the
Subordinate Certificates; provided, that no class of Subordinate Certificates
will be entitled on any Distribution Date to receive distributions pursuant to
clauses (ii), (iii) and (iv) of the definition of Subordinate Optimal Principal
Amount unless the Class Prepayment Distribution Trigger for that class is
satisfied for that Distribution Date; if the Class Prepayment Distribution
Trigger is not satisfied for an outstanding class of Subordinate Certificates,
those amounts will be distributable to the remaining classes of Subordinate
Certificates for which the Class Prepayment Distribution Trigger is satisfied,
pro rata, according to Certificate Principal Balance.
Amount Available for Group 1 Principal: As to any Distribution Date,
Group 1 Available Funds for such Distribution Date reduced by the aggregate
amount distributable on such Distribution Date in respect of interest on the
Group 1 Certificates pursuant to Section 4.02(a)(i) priority first sub-clause
(A).
Amount Available for Group 2 Principal: As to any Distribution Date,
Group 2 Available Funds for such Distribution Date reduced by the aggregate
amount distributable on such Distribution Date in respect of interest on the
Group 2 Certificates pursuant to Section 4.02(a)(i) priority first sub-clause
(B).
Amount Available for Group 3 Principal: As to any Distribution Date,
Group 3 Available Funds for such Distribution Date reduced by the aggregate
amount distributable on such Distribution Date in respect of interest on the
Group 3 Certificates pursuant to Section 4.02(a)(i) priority first sub-clause
(C).
Amount Held for Future Distribution: As to any Distribution Date and
any Mortgage Loan or Loan Group, the aggregate amount held in the Collection
Account at the close of business on the related Servicer Remittance Date with
respect to such Mortgage Loan or Loan Group at the close of business on the
related Servicer Remittance Date on account of (i) Principal Prepayments
received after the related Prepayment Period, and Liquidation Proceeds and
Insurance Proceeds received in the month of such Distribution Date and (ii) all
Scheduled Payments due after the related Due Date.
Apportioned Subordinate Principal Distribution Amount: For any
Distribution Date, the product of (i) the Subordinate Principal Distribution
Amount and (ii) the applicable Apportionment Fraction.
Apportionment Fraction: With respect to the Senior Certificates and
for any Distribution Date, in the event that the Class Principal Balances of the
Senior Certificates of any Certificate Group have been reduced to zero, a
fraction the numerator of which is equal to the sum of the Subordinate Optimal
Principal Amount of the Loan Group (or Groups) related to such Certificate Group
(or Groups), and the denominator of which is equal to the Aggregate Subordinate
Optimal Principal Amount.
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the
time of the origination of such Mortgage Loan; and (ii) with respect to a
Refinancing Mortgage Loan, the value of the Mortgaged Property based upon the
appraisal made-at the time of the origination of such Refinancing Mortgage Loan
as modified by an updated appraisal.
Assignment: An individual assignment of a Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
of record the sale or transfer of the Mortgage Loan.
Assignment Agreements: The following Assignment, Assumption and
Recognition Agreements, each dated as of September 29, 2003, whereby certain
Servicing Agreements solely with respect to the related Mortgage Loans were
assigned to the Depositor for the benefit of the Certificateholders:
(a) The Assignment, Assumption and Recognition Agreement, among
Alliance Mortgage Company, the Transferor and Mortgage Asset Securitization
Transactions, Inc.;
(b) The Assignment, Assumption and Recognition Agreement, among
Cendant Mortgage Corporation, the Transferor and Mortgage Asset Securitization
Transactions, Inc.;
(c) The Assignment, Assumption and Recognition Agreement, among
Xxxxxx Savings and Loan Association, F.A., the Transferor and Mortgage Asset
Securitization Transactions, Inc.;
(d) The Assignment, Assumption and Recognition Agreement, among
First Republic Bank, the Transferor and Mortgage Asset Securitization
Transactions, Inc.;
(e) The Assignment, Assumption and Recognition Agreement, among
GreenPoint Mortgage Funding, the Transferor and Mortgage Asset Securitization
Transactions, Inc.; and
(f) The Assignment, Assumption and Recognition Agreement, among
PrimeWest Mortgage Corporation, the Transferor and Mortgage Asset Securitization
Transactions, Inc.
(g) The Assignment, Assumption and Recognition Agreement, among
Washington Mutual Mortgage Securities Corp., the Transferor and Mortgage Asset
Securitization Transactions, Inc.
Available Funds: Any of the Group 1 Available Funds, Group 2
Available Funds and Group 3 Available Funds.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: With respect to any Group, the
point in time at which the Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction as reported by the applicable Servicer to
the Master Servicer; provided, however, that a Bankruptcy Loss shall not be
deemed a Bankruptcy Loss hereunder so long as the Master Servicer has notified
the Trustee in writing that either the Master Servicer or the applicable
Servicer is diligently pursuing any remedies that may exist in connection with
the related Mortgage Loan and either (A) the related Mortgage Loan is not in
default with regard to payments due thereunder or (B) delinquent payments of
principal and interest under the related Mortgage Loan and any related escrow
payments in respect of such Mortgage Loan are being advanced on a current basis
by either the Master Servicer or the applicable Servicer, in either case without
giving effect to any Debt Service Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Distribution Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses relating to
the Mortgage Loans since the Cut-off Date and (ii) any permissible reductions in
such Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction or modification will
not adversely affect the then current ratings assigned to the Senior
Certificates rated by it.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York,
Minnesota, Maryland, or 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.
Cendant: Cendant Mortgage Corporation, and its successors and
assigns, in its capacity as Servicer of the Cendant Mortgage Loans.
Cendant Mortgage Loans: The Mortgage Loans for which Cendant is
listed as "Servicer" on the Mortgage Loan Schedule.
Cendant Servicing Agreement: Solely with respect to the Cendant
Mortgage Loans, the Flow Mortgage Loan Purchase, Sale and Servicing Agreement,
dated as of August 1, 2001, between the Transferor, as purchaser, and Cendant,
as seller and as servicer, and as the same may be amended further from time to
time, and any term sheets related to the Cendant Mortgage Loans.
Certificate: Any one of the Certificates executed by the Trustee on
behalf of the Trust and authenticated by the Trustee in substantially the forms
attached hereto as Exhibits A through E.
Certificate Group: The Group 1 Certificates, Group 2 Certificates
and Group 3 Certificates, as applicable.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: With respect to any Certificate at
any date, the maximum dollar amount of principal to which the Holder thereof is
then entitled hereunder, such amount being equal to the Denomination thereof
minus the sum of (i) all distributions of principal previously made with respect
thereto and (ii) all Realized Losses allocated thereto and, in the case of any
Subordinate Certificates, all other reductions in Certificate Principal Balance
previously allocated thereto pursuant to Section 4.03; provided, however, that
pursuant to Section 4.03(d), the Class Principal Balance of a Class of
Certificates may be increased up to the amount of Realized Losses previously
allocated to such Class, in the event that there is a Recovery on a related
Mortgage Loan, and the Certificate Principal Balance of any individual
Certificate of such Class will be increased by its pro rata share of the
increase to such Class.
Certificate Register: The register maintained pursuant to Section
5.02 hereof.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Master Servicer or the Depositor or any affiliate of the Master
Servicer or the Depositor, as applicable, shall be deemed not to be Outstanding
and the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; provided, however, that, if any such
Person (including the Master Servicer or the Depositor) owns 100% of the
Percentage Interests evidenced by a Class of Certificates, such Certificates
shall be deemed to be Outstanding for purposes of any provision hereof that
requires the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to rely
conclusively on a certification of the Master Servicer or the Depositor or any
affiliate of the Master Servicer or the Depositor, as applicable, in determining
which Certificates are registered in the name of an affiliate of the Master
Servicer or the Depositor.
Certification: The certification signed by a Master Servicing
Officer pursuant to Section 8.12(d), in substantially the form attached hereto
as Exhibit M.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A-LR Interest: The "residual interest" in the Lower-Tier
REMIC, represented by the Class A-R Certificates.
Class A-UR Interest: The "residual interest" in the Upper-Tier
REMIC, represented by the Class A-R Certificates
Class Interest Shortfall: As to any Distribution Date and any
interest-bearing Class, the amount by which the amount described in clause (i)
of the definition of Accrued Certificate Interest for such Class exceeds the
amount of interest actually distributed on such Class on such Distribution Date
pursuant to such clause (i).
Class Prepayment Distribution Trigger: With respect to any Class of
Subordinate Certificates and any Distribution Date, if either (i) the Fractional
Interest for such Class with respect to such Distribution Date, equals or
exceeds the Fractional Interest for such Class calculated as of the Closing Date
or (ii) such Class of Subordinate Certificates is the most senior Class of
Subordinate Certificates then outstanding.
Class Principal Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Principal Balances of
all Certificates of such Class as of such date.
Class Unpaid Interest Amounts: As to any Distribution Date and any
interest bearing Class, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii) of
the definition of Accrued Certificate Interest for such Class.
Closing Date: September 29, 2003.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The separate Eligible Account or Accounts
created and maintained by the Master Servicer pursuant to Section 3.07 with a
depository institution in the name of the Master Servicer for the benefit of the
Trustee on behalf of Certificateholders and designated "JPMorgan Chase Bank, in
trust for the registered holders of Mortgage Asset Securitization Transactions,
Inc., MASTR Adjustable Rate Mortgages Trust 2003-4 Mortgage Pass-Through
Certificates Series 2003-4."
Compensating Interest: With respect to any Distribution Date and any
Servicer, the amount required to be paid by such Servicer under the related
Servicing Agreement in connection with Prepayment Interest Shortfalls that occur
on Mortgage Loans serviced by such Servicer for the related Distribution Date.
If any Servicer fails to make its required Compensating Interest payment on any
Distribution Date, the Master Servicer will be required to make such
Compensating Interest payment to the same extent that such Servicer is required
to make such Compensating Interest payment.
Corporate Trust Office: The designated office of the Trustee at
which at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Corporate Trust Services-MASTR Adjustable Rate Mortgages
Trust 2003-4, telephone no. (000) 000-0000, facsimile no. (000) 000-0000, which
is the address to which appropriate notices to and correspondence with the
Trustee should be directed.
Cross-Over Date: The Distribution Date on which the Class Principal
Balances of the Subordinate Certificates have been reduced to zero.
Custodian: Xxxxx Fargo, with respect to those Mortgage Loans for
which Xxxxx Fargo, is listed under the heading "Custodian" in the Mortgage Loan
Schedule, and which were not originated by WMMSC or an affiliate thereof, and
any successor thereto. U.S. Bank with respect to those Mortgage Loans for which
U.S. Bank is listed under the heading "Custodian" in the Mortgage Loan Schedule,
and which were originated by WMMSC or an affiliate thereof, and any successor
thereto.
Cut-off Date: September 1, 2003.
Cut-off Date Pool Balance: $388,065,536.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Scheduled Principal Balance thereof as of the close of business on the Cut-off
Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or Section 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any Scheduled Payment
that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: As defined in Section 2.03(c) hereof.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Principal Balance of this
Certificate" or, if not the foregoing, the Percentage Interest appearing on the
face thereof.
Depositor: Mortgage Asset Securitization Transactions, Inc., a
Delaware corporation, or its successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: The date on which a Servicer is required to
determine the amount it is required to advance pursuant to the applicable
Servicing Agreement.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.07 in the name of the Trustee
for the benefit of the Certificateholders and designated "JPMorgan Chase Bank,
in trust for registered holders of MASTR Adjustable Rate Mortgages Trust 2003-4
Mortgage Pass-Through Certificates, Series 2003-4." Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, one
Business Day prior to such Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business Day,
the next succeeding Business Day, commencing in October 2003.
Distribution Date Statement: The statement delivered to the
Certificateholders pursuant to Section 4.04.
Xxxxxx: Xxxxxx Savings and Loan Association, F.A., a federal
association, and its successors and assigns, in its capacity as Servicer of the
Xxxxxx Mortgage Loans.
Xxxxxx Mortgage Loans: The Mortgage Loans for which Xxxxxx is listed
as "Servicer" on the Mortgage Loan Schedule.
Xxxxxx Servicing Agreement: Solely with respect to the Xxxxxx
Mortgage Loans, the Master Loan Purchase and Servicing Agreement, dated as of
August 1, 2002, between the Transferor, as purchaser, and Xxxxxx, as seller and
as servicer, as the same may be amended from time to time, and any assignments
and conveyances related to the Xxxxxx Mortgage Loans.
Due Date: With respect to any Distribution Date, the first day of
the month in which the related Distribution Date occurs.
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 debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a non-interest bearing segregated trust
account or accounts maintained with (a) the trust department of a federal or
state chartered depository institution or (b) a trust company, acting in its
fiduciary capacity or (iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
Eligible Substitute Mortgage Loan: With respect to a Mortgage Loan
substituted by the Transferor for a Deleted Mortgage Loan, a Mortgage Loan which
must, on the date of such substitution, (i) have a Scheduled Principal Balance,
after deduction of the principal portion of the Scheduled Payment due in the
month of substitution (or, in the case of a substitution of more than one
mortgage loan for a Deleted Mortgage Loan, an aggregate principal balance), not
in excess of, and not more than 10% less than the Scheduled Principal Balance of
the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower than,
and not more than 1% per annum higher than, that of the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (iv) have the same index and Periodic Rate Cap as that of the Deleted
Mortgage Loan and a Gross Margin not more than 1% per annum higher or lower than
that of the Deleted Mortgage Loan; (v) does not permit conversion of the related
interest rate to a fixed interest rate; (vi) have a Loan-to-Value Ratio no
higher than that of the Deleted Mortgage Loan; (vii) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; (viii) comply with each representation and warranty set
forth in Section 2.03 hereof; (ix) be the same credit grade category as the
Deleted Mortgage Loan; and (x) have the same prepayment penalty term.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.08 hereof.
Excess Loss: The amount of any (i) Fraud Loss realized after the
Fraud Loss Coverage Termination Date, (ii) Special Hazard Loss realized after
the Special Hazard Coverage Termination Date or (iii) Deficient Valuation
realized after the Bankruptcy Coverage Termination Date.
Excess Proceeds: With respect to any Liquidated Loan, the amount, if
any, by which the sum of any Liquidation Proceeds of such Mortgage Loan received
in the calendar month in which such Mortgage Loan became a Liquidated Loan,
exceeds (i) the Scheduled Principal Balance of such Liquidated Loan as of the
Due Date in the month in which such Mortgage Loan became a Liquidated Loan plus
(ii) accrued interest at the Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date applicable to the Distribution Date immediately following the
calendar month during which such liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
Xxxxxx Xxx: Xxxxxx Xxx, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989.
First Republic: First Republic Bank, and its successors and assigns,
in its capacity as Servicer of the First Republic Mortgage Loans, as applicable.
First Republic Mortgage Loans: The Mortgage Loans for which First
Republic is listed as "Servicer" on the Mortgage Loan Schedule.
First Republic Servicing Agreement: Solely with respect to the First
Republic Mortgage Loans, the Master Loan Purchase and Servicing Agreement, dated
as of August 1, 2003, between the Transferor, as purchaser, and First Republic,
as seller and servicer, as the same may be amended from time to time, and any
assignment and conveyance related to the First Republic Mortgage Loans.
Fractional Interest: As to any Distribution Date and each Class of
Subordinate Certificates, the fraction (expressed as a percentage), the
numerator of which is the aggregate Certificate Principal Balance of such Class
and each Class subordinate to such Class, if any, and the denominator of which
is the aggregate Scheduled Principal Balance for all Loan Groups.
Fraud Loan: A Liquidated Loan as to which a Fraud Loss has occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $11,641,966,
subject to reduction from time to time by the amount of Fraud Losses that would
have been previously allocated to the Subordinate Certificates in the absence of
the Loss Allocation Limitation. In addition, the Fraud Loss Coverage Amount will
be reduced as follows: (a) on the first anniversary of the Cut-off Date, to an
amount equal to $7,761,311, less the amount of Fraud Losses that would have been
previously allocated to the Subordinate Certificates in the absence of the Loss
Allocation Limitation, (b) on the third anniversary of the Cut-off Date, to an
amount equal to $3,880,655, less the amount of Fraud Losses that would have been
previously allocated to the Subordinate Certificates in the absence of the Loss
Allocation Limitation and (c) on the earlier to occur of the Cross-Over Date and
the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss
is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation as reported by the
applicable Servicer to the Master Servicer.
Xxxxxxx Mac: Xxxxxxx Mac, a corporate instrumentality of the United
States created and existing under Title III of the Emergency Home Finance Act of
1970, as amended, or any successor thereto.
GreenPoint: GreenPoint Mortgage Funding, Inc., and its successors
and assigns, in its capacity as Servicer of the GreenPoint Mortgage Loans, as
applicable.
GreenPoint Mortgage Loans: The Mortgage Loans for which GreenPoint
is listed as "Servicer" on the Mortgage Loan Schedule.
GreenPoint Servicing Agreement: Solely with respect to the
GreenPoint Mortgage Loans, the Mortgage Loan Purchase and Servicing Agreement,
dated as of March 1, 2003, between the Transferor, as purchaser, and GreenPoint,
as seller and servicer, as the same may be amended from time to time, and any
assignment and conveyance related to the GreenPoint Mortgage Loans.
Group 1 Available Funds: As to any Distribution Date, the sum of (a)
the aggregate amount held in the Collection Account at the close of business on
the related Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business of the related Distribution
Account Deposit Date, attributable to the Group 1 Mortgage Loans net of the
Amount Held for Future Distribution related to the Group 1 Mortgage Loans and
net of amounts (i) permitted to be withdrawn from the Collection Account
pursuant to clauses (i)-(viii) inclusive and clauses (ix)(A)(ii), (ix)(B), (x)
and (xi) of Section 3.10(a) and (ii) after giving effect to all amounts
deposited to the Distribution Account from the Collection Account, amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses (i)
through (iv) inclusive of Section 3.10(b) each as it relates to the Group 1
Mortgage Loans, (b) the amount of the Advances related to the Group 1 Mortgage
Loans, and (c) in connection with Defective Mortgage Loans in Loan Group 1, as
applicable, the aggregate of the Purchase Prices and Substitution Adjustment
Amounts deposited on the related Distribution Account Deposit Date.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Mortgage Loans: Those Mortgage Loans identified on the
Mortgage Loan Schedule as Group 1 Mortgage Loans.
Group 1 Pool Principal Balance: As to any Distribution Date, the
aggregate of the Scheduled Principal Balances of the Group 1 Mortgage Loans
which were Outstanding Mortgage Loans on the Due Date in the month preceding the
month of such Distribution Date.
Group 1 Subordinate Amount: As to any Distribution Date, the excess
of (i) the aggregate Scheduled Principal Balance of the Group 1 Mortgage Loans
over (ii) the sum of the Class Principal Balances of the Group 1 Certificates.
Group 2 Available Funds: As to any Distribution Date, the sum of (a)
the aggregate amount held in the Collection Account at the close of business on
the related Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business of the related Distribution
Account Deposit Date, attributable to the Group 2 Mortgage Loans net of the
Amount Held for Future Distribution related to the Group 2 Mortgage Loans and
net of amounts (i) permitted to be withdrawn from the Collection Account
pursuant to clauses (i)-(viii) inclusive and clauses (ix)(A)(ii), (ix)(B), (x)
and (xi) of Section 3.10(a) and (ii) after giving effect to all amounts
deposited to the Distribution Account from the Collection Account, amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses
(i)-(iv) inclusive of Section 3.10(b) each as it relates to the Group 2 Mortgage
Loans, (b) the amount of the Advances related to the Group 2 Mortgage Loans, and
(c) in connection with Defective Mortgage Loans in Loan Group 2, as applicable,
the aggregate of the Purchase Prices and Substitution Adjustment Amounts
deposited on the related Distribution Account Deposit Date.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Mortgage Loans: Those Mortgage Loans identified on the
Mortgage Loan Schedule as Group 2 Mortgage Loans.
Group 2 Pool Principal Balance: As to any Distribution Date, the
aggregate of the Scheduled Principal Balances of the Group 2 Mortgage Loans
which were Outstanding Mortgage Loans on the Due Date in the month preceding the
month of such Distribution Date.
Group 2 Subordinate Amount: As to any Distribution Date, the excess
of (i) the aggregate Scheduled Principal Balance of the Group 2 Mortgage Loans
over (ii) the sum of the Class Principal Balances of the Group 2 Certificates.
Group 3 Available Funds: As to any Distribution Date, the sum of (a)
the aggregate amount held in the Collection Account at the close of business on
the related Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business of the related Distribution
Account Deposit Date, attributable to the Group 3 Mortgage Loans net of the
Amount Held for Future Distribution related to the Group 3 Mortgage Loans and
net of amounts (i) permitted to be withdrawn from the Collection Account
pursuant to clauses (i)-(viii) inclusive and clauses (ix)(A)(ii), (ix)(B), (x)
and (xi) of Section 3.10(a) and (ii) after giving effect to all amounts
deposited to the Distribution Account from the Collection Account, amounts
permitted to be withdrawn from the Distribution Account pursuant to clauses
(i)-(iv) inclusive of Section 3.10(b) each as it relates to the Group 3 Mortgage
Loans, (b) the amount of the Advances related to the Group 3 Mortgage Loans, and
(c) in connection with Defective Mortgage Loans in Loan Group 3, as applicable,
the aggregate of the Purchase Prices and Substitution Adjustment Amounts
deposited on the related Distribution Account Deposit Date.
Group 3 Certificates: As specified in the Preliminary Statement.
Group 3 Mortgage Loans: Those Mortgage Loans identified on the
Mortgage Loan Schedule as Group 3 Mortgage Loans.
Group 3 Pool Principal Balance: As to any Distribution Date, the
aggregate of the Scheduled Principal Balances of the Group 3 Mortgage Loans
which were Outstanding Mortgage Loans on the Due Date in the month preceding the
month of such Distribution Date.
Group 3 Subordinate Amount: As to any Distribution Date, the excess
of (i) the aggregate Scheduled Principal Balance of the Group 3 Mortgage Loans
over (ii) the sum of the Class Principal Balances of the Group 3 Certificates.
Group Available Funds: Any of the Group 1 Available Funds, Group 2
Available Funds or Group 3 Available Funds, as applicable.
Group Pool Principal Balance: Any of the Group 1 Pool Principal
Balance, Group 2 Pool Principal Balance or Group 3 Pool Principal Balance, as
applicable.
Group Subordinate Amount: Each of the Group 1 Subordinate Amount,
Group 2 Subordinate Amount and Group 3 Subordinate Amount, as applicable.
HUD: The United States Department of Housing and Urban Development
or any successor thereto.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Coverage Amount: $167,771.
Insolvency Proceeding: With respect to any Person: (i) any case,
action, or proceeding with respect to such Person before any court or other
governmental authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up, or relief of debtors; or
(ii) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in respect of
the creditors generally of such Person or any substantial portion of such
Person's creditors, in any case undertaken under federal, state or foreign law,
including the Bankruptcy Code.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses, to the extent such proceeds are not
applied to the restoration of the related Mortgaged Property or released to the
borrower in accordance with the applicable Servicer's normal servicing
procedures.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Certificates,
each Lower-Tier REMIC Regular Interest and any Distribution Date, the period
from and including the first day of the month immediately preceding the month in
which such Distribution Date occurs, commencing September 1, 2003, to and
including the last day of such immediately preceding month.
Latest Possible Maturity Date: The Distribution Date following the
third anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender-Paid Mortgage Insurance Amount: With respect to any
Lender-Paid Mortgage Insurance Loan, the interest portion of each Scheduled
Payment that is paid by the related Mortgagor that will be used to pay the
monthly premium of the "lender-paid" Primary Insurance Policy on such
Lender-Paid Mortgage Insurance Loan, which is calculated by multiplying the
Scheduled Principal Balance as of the related date of determination on such
Lender-Paid Mortgage Insurance Loan by the applicable Lender-Paid Mortgage
Insurance Rate.
Lender-Paid Mortgage Insurance Loan: Each of the Mortgage Loans
identified on the Mortgage Loan Schedule as having a Lender-Paid Mortgage
Insurance Rate.
Lender-Paid Mortgage Insurance Rate: With respect to any Lender-Paid
Mortgage Insurance Loan, a per annum rate equal to the percentage indicated on
the Mortgage Loan Schedule under the heading "Lender-Paid Mortgage Insurance
Rate."
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the
applicable Servicer or the Master Servicer, as the case may be, has determined
(in accordance with the applicable Servicing Agreement and this Agreement) that
it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of an REO
Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees, Servicing
Advances and Advances.
Loan Group: Each of Loan Group 1, Loan Group 2 and Loan Group 3, as
applicable.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Seller: With respect to any Mortgage Loan, the entity who sold
such Mortgage Loan to the Transferor.
Loan-to-Value Ratio or LTV Ratio: With respect to any Mortgage Loan
and as to 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 of determination and the denominator of which is the Appraised Value
of the related Mortgaged Property.
Loss Allocation Limitation: As defined in Section 4.03(d) hereof.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Lower-Tier REMIC: As described in the Preliminary Statement.
Lower-Tier REMIC Interest: Any one of the Lower-Tier REMIC Regular
Interests or the Class A-LR Interest.
Lower-Tier REMIC Regular Interest: Any of the Class L-1B Interest,
Class L-1Q Interest, Class L-2B Interest, Class L-2Q Interest, Class L-3B
Interest and Class L-3Q Interest.
Lower-Tier Subordinated Balance Ratio: The ratio among the principal
balances of the Class L-1B Interest, Class L-2B Interest and Class L-3B
Interest, equal to the ratio among the Group 1 Subordinate Amount, the Group 2
Subordinate Amount and the Group 3 Subordinate Amount.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least 51%
of the Percentage Interests evidenced by all Certificates of such Class.
Master Servicer Event of Termination: As defined in Section 7.01
hereof.
Master Servicer or Xxxxx Fargo: Xxxxx Fargo Bank Minnesota, N.A., a
national banking association, and its successors and assigns, in its capacity as
Master Servicer and as a Custodian, as the case may be, hereunder.
Master Servicing Compensation: All investment earnings on amounts on
deposit in the Collection Account and the Distribution Account (other than the
WMMSC Investment Earnings Amount).
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: As defined in Section 2.01.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
If Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b), the address for notices to Moody's shall be
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Monitoring Group, or such other address as
Moody's may hereafter furnish to each party to this Agreement.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the related Custodian to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of September 1, 2003, between the Transferor and the
Depositor.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the related Custodian to reflect the addition of Eligible
Substitute Mortgage Loans and the deletion of Deleted Mortgage Loans pursuant to
the provisions of this Agreement) transferred to the Trustee as part of the
Trust Fund and from time to time subject to this Agreement, attached hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan: (1) the Mortgage Loan identifying number; (2) the Mortgagor's
first and last name; (3) the street address of the Mortgaged Property including
the city, state and zip code; (4) the original principal balance of the Mortgage
Loan; (5) the Scheduled Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date; (6) the unpaid principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date; (7) the last
scheduled Due Date on which a Scheduled Payment was applied to the Scheduled
Principal Balance; (8) the last Due Date on which a Scheduled Payment was
actually applied to the unpaid principal balance; (9) the Mortgage Rate in
effect immediately following origination; (10) the Mortgage Rate in effect
immediately following the Cut-off Date (if different from (9)); (11) the amount
of the Scheduled Payment at origination; (12) the amount of the Scheduled
Payment as of the Cut-off Date (if different from (11)); (13) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or an investor
property; (14) a code indicating whether the Mortgaged Property is a single
family residence, a two-family residence, a three-family residence, a
four-family residence, a planned-unit development, or a condominium; (15) a code
indicating the loan purpose (i.e., purchase, rate/term refinance, cash-out
refinance); (16) the stated maturity date; (17) the original months to maturity;
(18) the remaining months to maturity from the Cut-off Date based on the
original amortization schedule and, if different, the remaining months to
maturity expressed in the same manner but based on the actual amortization
schedule; (19) the origination date of the Mortgage Loan; (20) the Loan-to-Value
Ratio at origination; (21) the date on which the first Scheduled Payment was due
on the Mortgage Loan after the origination date; (22) a code indicating the
documentation style of the Mortgage Loan; (23) a code indicating if the Mortgage
Loan is subject to a Primary Insurance Policy and, if so, the name of the
Qualified Mortgage Insurer, the certificate number and the coverage amount of
the Primary Insurance Policy; (24) the Servicing Fee Rate, and if such rate is
subject to change, the date such rate will change and the Servicing Fee Rate
applicable thereafter; (25) a code indicating whether the Mortgage Loan is
subject to a prepayment penalty and, if so, the term of such prepayment penalty;
(26) the credit score (or mortgage score) of the Mortgagor; (27) the
debt-to-income ratio of the Mortgage Loan; (28) the next Mortgage Rate
Adjustment Date; (29) the lifetime Mortgage Rate Cap; (30) the Periodic Rate
Cap; (31) the Maximum Interest Rate; (32) the Minimum Interest Rate; (33) a code
indicating if the Mortgage Loan is subject to a "lender-paid" Primary Insurance
Policy and, if so, the name of the Qualified Mortgage Insurer, the certificate
number and the coverage amount of the Primary Insurance Policy, and the
Lender-Paid Mortgage Insurance Rate; (34) such loan sale date; (35) a code
indicating whether the Mortgage Loan is a Group 1 Mortgage Loan, Group 2
Mortgage Loan or Group 3 Mortgage Loan; (36) the initial Servicer; (37) a code
indicating the originator of the Mortgage Loan and (38) a code indicating the
applicable Custodian.
Mortgage Loans: Such of the mortgage loans transferred and
assigned to the Trustee pursuant to the provisions hereof as from time to time
are held as a part of the Trust Fund (including any REO Property), the mortgage
loans so held being identified on the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time.
Mortgaged Property: The underlying property securing a Mortgage
Loan.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less (i) the related Servicing Fee
Rate and (ii) the Lender-Paid Mortgage Insurance Rate, if applicable.
Net Prepayment Interest Shortfalls: As to any Distribution Date and
Loan Group, the amount by which the aggregate of Prepayment Interest Shortfalls
for that Loan Group during the related Prepayment Period exceeds the amount of
Compensating Interest available to such Loan Group for such Distribution Date.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the applicable Servicer or the Master Servicer, as the
case may be, that, in the good faith judgment of the applicable Servicer or the
Master Servicer, will not be ultimately recoverable by the applicable Servicer
or the Master Servicer from the related Mortgagor, related Liquidation Proceeds
or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of
the Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii) if provided for in
this Agreement, signed by a Master Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, including in-house counsel, reasonably
acceptable to the Trustee; provided, however, that, with respect to the
interpretation or application of the REMIC Provisions, such counsel must (i) in
fact be independent of the Depositor and the Master Servicer, (ii) not have any
direct financial interest in the Depositor or the Master Servicer or in any
affiliate of either, and (iii) not be connected with the-Depositor or the Master
Servicer as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Optional Termination: The termination of the trust created hereunder
in connection with the purchase of the Mortgage Loans pursuant to Section
9.01(a) hereof.
Original Subordinate Principal Balance: The aggregate of the Class
Principal Balances of the Subordinate Certificates as of the Closing Date.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(a) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Scheduled Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full prior to such Due Date and that did not become a
Liquidated Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
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.
Pass-Through Rate: For any interest bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Rate Cap: As to each Mortgage Loan and the related Mortgage
Note, the provisions therein that limit permissible increases and decreases in
the interest rate of any Mortgage Loan on any Adjustment Date.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(a) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the United
States;
(b) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency, or such lower rating as will
not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by either Rating Agency (as confirmed in writing by
the applicable Rating Agency);
(c) commercial or finance company paper which is then receiving the
highest commercial or finance company paper rating of each Rating Agency,
or such lower rating as will not result in the downgrading or withdrawal
of the ratings then assigned to the Certificates by either Rating Agency
(as confirmed in writing by the applicable Rating Agency);
(d) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long term unsecured
debt obligations of such depository institution or trust company are then
rated in one of the two highest long-term and the highest short-term
ratings of each Rating Agency for such securities, or such lower ratings
as will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by either Rating Agency (as confirmed in
writing by the applicable Rating Agency);
(e) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC and are then rated in the highest
long-term and the highest short-term ratings of each Rating Agency for
such securities, or such lower ratings as will not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by either Rating Agency (as confirmed in writing by the applicable Rating
Agency);
(f) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation containing, at the time of the issuance of
such agreements, such terms and conditions as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates
by either Rating Agency (as confirmed in writing by the applicable Rating
Agency);
(g) repurchase obligations with respect to any security described in
clauses (a) and (b) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (d)
above;
(h) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face amount
thereof) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state thereof
which, at the time of such investment, have the highest rating of each
Rating Agency, or such lower rating as will not result in the downgrading
or withdrawal of the rating then assigned to the Certificates by either
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency (as confirmed in writing by the applicable Rating Agency);
(i) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency and restricted to obligations issued
or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations;
(j) any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to instruments
that otherwise would constitute Permitted Investments hereunder, including
any such fund that is managed by the Trustee or Master Servicer or any
affiliate of the Trustee or Master Servicer or for which the Trustee or
Master Servicer or any affiliate of the Trustee or Master Servicer acts as
an adviser as long as such fund is rated in at least the highest rating
category by each Rating Agency (if so rated by such Rating Agency;
provided, however, if S&P is a Rating Agency, then such mutual fund, money
market fund, common trust fund or other pooled investment vehicle shall
have been rated by S&P); and
(k) such other investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any State thereof or the
District of Columbia, an estate whose income is subject to United States federal
income tax purposes 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 Persons described in this clause (v) have the
authority to control all substantial decisions of the Trust (or, to the extent
provided in applicable Treasury Regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as United States
persons) unless such Person has furnished the transferor and the Trustee with a
duly completed Internal Revenue Service Form W-8ECI or any applicable successor
form, (vi) any Person with respect to whom income on any Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other Person
and (vii) any other Person so designated by the Depositor based upon an Opinion
of Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause either the Lower-Tier REMIC or the Upper-Tier REMIC
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions. A corporation will not be treated as an instrumentality of the
United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
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.
Physical Certificate: As specified in the Preliminary Statement.
Pool Principal Balance: As to any Distribution Date, the aggregate
of the Scheduled Principal Balances of the Mortgage Loans which were Outstanding
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date.
Prepayment Interest Excess: As to any Principal Prepayment received
or, in the case of partial Principal Prepayments, applied by the applicable
Servicer or the Master Servicer from the first day through the fifteenth day of
any calendar month (other than the calendar month in which the Cut-off Date
occurs), all amounts paid by the related Mortgagor in respect of interest on
such Principal Prepayment.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received or, in the case of partial Principal
Prepayments, applied, during the applicable Prepayment Period, the amount, if
any, by which one month's interest at the related Net Mortgage Rate on such
Principal Prepayment exceeds the amount of interest at the Net Mortgage Rate
paid in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date, (a) with respect to
any voluntary Principal Prepayment of a Mortgage Loan (other than any voluntary
Principal Prepayment in Full of a WMMSC Mortgage Loan) the calendar month
preceding the month in which such Distribution Date occurs; and (b) with respect
to any Principal Prepayment in Full of a WMMSC Mortgage Loan, the period
beginning on the 15th day of the calendar month immediately preceding the month
in which such Distribution Date occurs and ending on the 14th day of the
calendar month in which such Distribution Date occurs.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
PrimeWest: PrimeWest Mortgage Corporation, and its successors and
assigns, in its capacity as Servicer of the PrimeWest Mortgage Loans to the
Transferor.
PrimeWest Mortgage Loans: The Mortgage Loans for which PrimeWest is
listed as "Servicer" on the Mortgage Loan Schedule.
PrimeWest Servicing Agreement: Solely with respect to the PrimeWest
Mortgage Loans, the Servicing Agreement, dated as of May 1, 2003, between the
Transferor and PrimeWest, as the same may be amended from time to time, and any
assignment and conveyances related to the PrimeWest Mortgage Loans.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments will be applied by the applicable Servicers in accordance
with the terms of the related Servicing Agreements and in accordance with the
terms of the related Mortgage Note, and to the extent the Mortgage Note does not
provide otherwise, shall be applied in the Prepayment Period preceding the
receipt thereof.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Private Certificate: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date and any Mortgage Loan
(i) with respect to any Senior Certificate for which such Mortgage Loan is not
in the Related Loan Group, zero, and (ii) with respect to each other Class of
Senior Certificates as to which such Mortgage Loan is in the Related Loan Group,
and each Class of Subordinate Certificates, the ratio that the amount calculated
with respect to such Distribution Date for such Class pursuant to clause (i) of
the definition of Accrued Certificate Interest (without giving effect to any
reduction of such amount pursuant to Section 4.02(c)) bears to the amount
calculated with respect to such Distribution Date for all such Classes of Senior
Certificates and for all Classes of Subordinate Certificates pursuant to clause
(i) of the definition of Accrued Certificate Interest (without giving effect to
any reduction of such amount pursuant to Section 4.02(c)); provided, however,
that with respect to the calculation in (ii) above, such calculation with
respect to the Subordinate Certificates shall be made as though each Class of
Subordinate Certificates had a Class Principal Balance equal to its pro rata
share (based on Class Principal Balance) of the Group Subordinate Amount for the
Group which includes such Mortgage Loan, and provided further that, in the event
the Pro Rata Share for any Class of Senior Certificates as so calculated exceeds
the portion of the Accrued Certificate Interest for such Class in accordance
with clause (i) of the definition thereof without adjustment for Section 4.02(c)
other than reduction for Net Prepayment Interest Shortfalls, the amount of such
excess shall be allocated pro rata to all other Classes of Senior Certificates
based on Accrued Certificate Interest pursuant to such clause (i) without
adjustment pursuant to Section 4.02(c), and shall be treated as the Pro Rata
Share of each such Class.
Prospectus Supplement: The Prospectus Supplement dated September 25,
2003 relating to the Offered Certificates.
Protected Account: An account established and maintained for the
benefit of Certificateholders by each Servicer with respect to the related
Mortgage Loans and with respect to REO Property pursuant to the respective
Servicing Agreements. Each Protected Account is required to be an Eligible
Account.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Transferor pursuant to Section 2.02 or 2.03 hereof, an amount
equal to the sum of (i) 100% of the unpaid principal balance of the Mortgage
Loan on the date of such purchase, (ii) accrued and unpaid interest thereon at
the applicable Mortgage Rate from the date through which interest was last paid
by the Mortgagor or the applicable Servicer or the Master Servicer, as the case
may be, made an Advance in respect thereof (which was not reimbursed) to the Due
Date in the month in which the Purchase Price is to be distributed to
Certificateholders, (iii) in the event that such Mortgage Loan is repurchased by
the Transferor due to a breach of the representations and warranties listed in
clauses (xiii) or (xiv) of Schedule II to this Agreement, any costs and damages
incurred by the Trust in connection with a violation of a predatory or abusive
lending law with respect to such Loan, less (d) any Amounts Held for Future
Distribution related to such Mortgage Loan with respect to the Distribution Date
in the month in which the Purchase Price is to be distributed to
Certificateholders.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of business
and each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and to
write the insurance provided by the insurance policy issued by it, approved as a
Xxxxxx Xxx-approved mortgage insurer and having a claims paying ability rating
of at least "AA" or equivalent rating by a nationally recognized statistical
rating organization. Any replacement insurer with respect to a Mortgage Loan
must have at least as high a claims paying ability rating as the insurer it
replaces had on the Closing Date.
Qualified Mortgage Insurer: Any mortgage insurer that is Xxxxxx Mae
and Xxxxxxx Mac approved.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Loan, an amount (not
less than zero or more than the Scheduled Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Loan as of the date of such liquidation, plus (ii)
interest at the Net Mortgage Rate from the Due Date as to which interest was
last paid or advanced (and not reimbursed) to Certificateholders up to the Due
Date in the month in which Liquidation Proceeds are required to be distributed
on the Scheduled Principal Balance of such Liquidated Loan from time to time,
minus (iii) the Liquidation Proceeds, if any, received during the month in which
such liquidation occurred, to the extent applied as recoveries of interest at
the Net Mortgage Rate and to principal of the Liquidated Loan. With respect to
each Mortgage Loan which has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, 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.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Recovery: With respect to any Distribution Date and any Mortgage
Loan, an amount received in respect of principal on such Mortgage Loan during
the related Prepayment Period which has previously been allocated as a Realized
Loss to a Class of Certificates.
Refinancing Mortgage Loan: Any Mortgage Loan originated in
connection with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Related Loan Group: With respect to the Group 1 Certificates and the
Class L-1B Interest and Class L-1Q Interest, Loan Group 1; with respect to the
Group 2 Certificates and the Class L-2B Interest and Class L-2Q Interest, Loan
Group 2; and with respect to the Group 3 Certificates and the Class L-3B
Interest and Class L-3Q Interest, Loan Group 3.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended or any comparable state or local statute (including the comparable
provisions under the California Military and Veterans Code, as amended).
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (ii) interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure, deed-in-lieu of foreclosure, repossession or otherwise in
connection with a defaulted Mortgage Loan.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under the
applicable Servicing Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
having direct responsibility for the administration of this Agreement and also
to whom, with respect to a particular matter, such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Restricted Classes: As defined in Section 4.02(d).
S&P: Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto. If S&P is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to S&P shall be Standard and Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Monitoring Group, or such other address
as S&P may hereafter furnish to each party to this Agreement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Scheduled Principal Balance: As to any Mortgage Loan and any
Distribution Date, the unpaid principal balance of such Mortgage Loan as of such
Due Date in the month preceding the month in which such Distribution Date
occurs, as specified in the amortization schedule at the time relating thereto
(before any adjustment to such amortization schedule by reason of any moratorium
or similar waiver or grace period) after giving effect to any previous partial
Principal Prepayments and Liquidation Proceeds allocable to principal received
during the Prepayment Period for the prior Distribution Date (other than with
respect to any Liquidated Loan), and to the payment of principal due on such Due
Date and irrespective of any delinquency in payment by the related Mortgagor.
Securities Act: The Securities Act of 1933, as amended.
Senior Certificates: As specified in the Preliminary Statement.
Senior Final Distribution Date: The Distribution Date on which the
respective Class Principal Balances of the Senior Certificates have each been
reduced to zero.
Senior Optimal Principal Amount: For any Distribution Date and any
Loan Group, the sum for all Mortgage Loans in such Loan Group of (i) the Senior
Percentage of (a) the principal portion of each Scheduled Payment (without
giving effect, prior to the Bankruptcy Coverage Termination Date, to any
reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on each such Mortgage Loan on the related Due Date, (b) the
principal portion of the Purchase Price of each such Mortgage Loan to the extent
it was repurchased by the Transferor pursuant to this Agreement as of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with any
Deleted Mortgage Loan related to such Loan received with respect to such
Distribution Date and (d) any Liquidation Proceeds (including Insurance
Proceeds) allocable to recoveries of principal of any Mortgage Loan related to
such Loan Group that is not yet a Liquidated Loan, received during the calendar
month preceding the month of such Distribution Date, (ii) with respect to each
such Mortgage Loan that became a Liquidated Loan during the calendar month
preceding the month of such Distribution Date, the lesser of (A) the Senior
Percentage of the Scheduled Principal Balance of such Mortgage Loan, and (B)
either (a) the Senior Prepayment Percentage, or (b) if an Excess Loss was
sustained with respect to such Liquidated Loan during such prior calendar month,
the Senior Percentage of the amount of the Liquidation Proceeds allocable to
principal received with respect to such Mortgage Loan, (iii) the Senior
Prepayment Percentage of the sum of (a) all Principal Prepayments in full
related to such Mortgage Loans received during the related Prepayment Period and
(b) all partial Principal Prepayments related to such Mortgage Loans and applied
during the related Prepayment Period and (iv) with respect to any Distribution
Date prior to the Cross-Over Date only, the Senior Prepayment Percentage of the
Recoveries for such Loan Group received during the related Prepayment Period;
provided, however, that, if a Bankruptcy Loss that is an Excess Loss is
sustained with respect to such Mortgage Loan that is not a Liquidated Loan, the
Senior Optimal Principal Amount will be reduced on the related Distribution Date
by the Senior Percentage of the principal portion of such Bankruptcy Loss.
Senior Percentage: As to any Distribution Date and any Certificate
Group, the lesser of (a) 100% and (b) the percentage equivalent of a fraction
the numerator of which is the aggregate of the Class Principal Balances of each
Class of Senior Certificates in such Certificate Group immediately preceding
such Distribution Date and the denominator of which is the aggregate of the
Scheduled Principal Balance of each Mortgage Loan in the related Loan Group.
Senior Prepayment Percentage: For any Distribution Date during the
seven years beginning on the first Distribution Date, 100%. The Senior
Prepayment Percentage for any Certificate Group and any Distribution Date
occurring on or after the seventh anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in the
first year thereafter, the Senior Percentage for such Certificate Group plus 70%
of the Subordinate Percentage for such Certificate Group for such Distribution
Date; for any Distribution Date in the second year thereafter, the Senior
Percentage for such Certificate Group plus 60% of the Subordinate Percentage for
such Certificate Group for such Distribution Date; for any Distribution Date in
the third year thereafter, the Senior Percentage for such Certificate Group plus
40% of the Subordinate Percentage for such Certificate Group for such
Distribution Date; for any Distribution Date in the fourth year thereafter, the
Senior Percentage for such Certificate Group plus 20% of the Subordinate
Percentage for such Certificate Group for such Distribution Date; and for any
Distribution Date thereafter, the Senior Percentage for such Certificate Group
for such Distribution Date (unless on any Distribution Date the Senior
Percentage for such Certificate Group exceeds the initial Senior Percentage for
such Certificate Group, in which case the Senior Prepayment Percentage for all
Certificate Groups for such Distribution Date will once again equal 100%);
provided, however, (i) if on any Distribution Date the Senior Percentage for
such Certificate Group exceeds the initial Senior Percentage for such
Certificate Group, the Senior Prepayment Percentage for all Groups for such
Distribution Date will equal 100%, (ii) if on any Distribution Date on or before
the Distribution Date in September 2006, prior to giving effect to any
distributions on such Distribution Date, the Aggregate Subordinate Percentage
for such Distribution Date is greater than or equal to twice the initial
Aggregate Subordinate Percentage, then the Senior Prepayment Percentage for such
Certificate Group for such Distribution Date will equal the Senior Percentage
for such Certificate Group plus 50% of the Subordinate Percentage for such
Certificate Group and (iii) if on any Distribution Date on or after the
Distribution Date in October 2006, prior to giving effect to any distributions
on such Distribution Date, the Aggregate Subordinate Percentage for such
Distribution Date is greater than or equal to twice the initial Aggregate
Subordinate Percentage, then the Senior Prepayment Percentage for such
Certificate Group for such Distribution Date will equal the Senior Percentage
for such Certificate Group. Notwithstanding the foregoing, no decrease in the
Senior Prepayment Percentage for a Certificate Group will occur unless both of
the Senior Step Down Conditions are satisfied.
Senior Step Down Conditions: As of the last day of the month
preceding the applicable Distribution Date as to which any decrease in the
Senior Prepayment Percentage applies, (i) the aggregate Scheduled Principal
Balance of all Mortgage Loans delinquent 60 days or more (including delinquent
Mortgage Loans in bankruptcy, and all Mortgage Loans in foreclosure and REO
Properties), as a percentage of the aggregate Class Principal Balance of the
Subordinate Certificates on such Distribution Date, does not equal or exceed 50%
and (ii) cumulative Realized Losses with respect to the Mortgage Loans do not
exceed (a) with respect to the Distribution Dates occurring between and
including October 2003 and September 2006, 20% of the Original Subordinate
Principal Balance, (b) with respect to the Distribution Date on or after October
2006, 30% of the Original Subordinate Principal Balance.
Servicer: Each of Alliance Mortgage Company, Cendant Mortgage
Corporation, Xxxxxx Savings and Loan Association, F.A., First Republic Bank,
GreenPoint Mortgage Funding, PrimeWest Mortgage Corporation and Washington
Mutual Mortgage Securities Corp., as applicable.
Servicer Remittance Date: With respect to any Servicer (other than
WMMSC) and any Distribution Date, no later than the 18th calendar day of each
month or the immediately following Business Day or the immediately preceding
Business Day, as specified in the related Servicing Agreement. With respect to
WMMSC, as to any Distribution Date, the 24th day of each calendar month, or if
such 24th day is not a Business Day, the immediately preceding Business Day.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its master servicing obligations or the applicable Servicer, as the case may be,
of its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer or the applicable Servicer, as the
case may be, pursuant to Section 3.11 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.09.
Servicing Agreements:
(a) the Alliance Mortgage Servicing Agreement;
(b) the Cendant Servicing Agreement;
(c) the Xxxxxx Servicing Agreement;
(d) the First Republic Servicing Agreement;
(e) the GreenPoint Servicing Agreement;
(f) the PrimeWest Servicing Agreement; and
(g) the WMMSC Servicing Agreement.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount payable out of each full payment of interest received on such Mortgage
Loan and equal to one-twelfth of the Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan as of the Due Date in the
month immediately preceding the month in which such Distribution Date occurs
(after giving effect to any Scheduled Payments due on such Mortgage Loan on such
Due Date), subject to reduction for any Compensating Interest payments required
to be made by the applicable Servicer.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate set forth on the Mortgage Loan Schedule.
Similar Law: As defined in Section 5.02(b) hereof.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss as reported by the applicable
Servicer to the Master Servicer suffered by a Mortgaged Property on account of
direct physical loss but not including (i) any loss of a type covered by a
hazard insurance policy or a flood insurance policy required to be maintained
with respect to such Mortgaged Property pursuant to Section 3.11 to the extent
of the amount of such loss covered thereby, or (ii) any loss caused by or
resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, any Servicer the Master Servicer or any of their agents or
employees (without regard to any portion of the loss not covered by any
errors and omissions policy);
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for
the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and
whether such loss be direct or indirect, proximate or remote or be in
whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending
or expected attack:
(i) by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air
forces; or
(ii) by military, naval or air forces; or
(iii) by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any government
or public authority or risks of contraband or illegal transportation or
trade.
Special Hazard Loss Coverage Amount: With respect to any
Distribution Date, $4,000,000 less (i) the aggregate amount of Special Hazard
Losses that would have been previously allocated to the Subordinate Certificates
in the absence of the Loss Allocation Limitation and (ii) the Adjustment Amount
as of the most recent anniversary of the Cut-off Date. As of any Distribution
Date after the Cross-Over Date, the Special Hazard Loss Coverage Amount for the
Subordinate Certificates shall be zero. All principal balances for the purpose
of this definition will be calculated as of the first day of the calendar month
preceding the month of such Distribution Date after giving effect to Scheduled
Payments on the Mortgage Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Loan as to which a
Special Hazard Loss has occurred.
Startup Day: The Closing Date.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Certificates Fractional Interest Test: This test is
satisfied with respect to a Class of Subordinate Certificates and any
Distribution Date if (a) on any Distribution Date on or prior to the
Distribution Date in September 2006, the Fractional Interest of such Class is
greater than or equal to twice its Fractional Interest on the Closing Date and
(b) the Senior Prepayment Percentage for such Distribution Date is determined in
accordance with clause (ii) or (iii) of the proviso in the definition of "Senior
Prepayment Percentage."
Subordinate Optimal Principal Amount: For any Distribution Date and
any Loan Group, the sum for each Mortgage Loan in such Loan Group of (i) the
Subordinate Percentage of (a) the principal portion of each Scheduled Payment
(without giving effect, prior to the Bankruptcy Coverage Termination Date, to
any reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on each such Mortgage Loan on the related Due Date, (b) the
principal portion of the Purchase Price of each such Mortgage Loan to the extent
it was repurchased by the Transferor pursuant to this Agreement as of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with any
Deleted Mortgage Loan related to such Loan Group received with respect to such
Distribution Date, (d) any Liquidation Proceeds (including Insurance Proceeds)
allocable to recoveries of principal of Mortgage Loans related to such Loan
Group that are not yet Liquidated Loans, received during the calendar month
preceding the month of such Distribution Date, (ii) with respect to each
Mortgage Loan in such Loan Group that became a Liquidated Loan during the
calendar month preceding the month of such Distribution Date, the portion of the
amount of the Liquidation Proceeds allocable to principal received with respect
to such Mortgage Loan that was not included in clause (ii) of the definition of
"Senior Optimal Principal Amount" for such Distribution Date, (iii) the
Subordinate Prepayment Percentage of the sum of (a) all Principal Prepayments in
Full of Mortgage Loans in such Loan Group received during the related Prepayment
Period and (b) all partial Principal Prepayments of Mortgage Loans in such Loan
Group and applied during the related Prepayment Period and (iv) with respect to
any Distribution Date prior to the Cross-Over Date only, the Subordinate
Prepayment Percentage related to such Group of the Recoveries received during
the related Prepayment Period; provided, however, that if a Bankruptcy Loss that
is an Excess Loss is sustained with respect to a Mortgage Loan in such Loan
Group that is not a Liquidated Loan, the Subordinate Optimal Principal Amount
will be reduced on the related Distribution Date by the Subordinate Percentage
of the principal portion of such Bankruptcy Loss.
Subordinate Percentage: As to any Distribution Date and any
Certificate Group, 100% minus the Senior Percentage for such Certificate Group
for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
any Certificate Group, 100% minus the Senior Prepayment Percentage for such
Certificate Group for such Distribution Date, except that, on any Distribution
Date after the Senior Final Distribution Date for any Certificate Group, the
Subordinate Prepayment Percentage for such Certificate Group will equal 100%.
Subordinate Principal Distribution Amount: With respect to the
Subordinate Certificates, the aggregate amount that would be payable as
principal on the Subordinate Certificates from Available Funds for the Loan
Groups in the aggregate, after application of Available Funds for each such Loan
Group (i) to make payments on the related Senior Certificates in accordance with
Section 4.02(a)(i) items first and second and Section 4.02(e) and (ii) to make
payments of Accrued Certificate Interest to the Subordinate Certificates in
accordance with Section 4.02(a)(ii).
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03.
Tax Matters Person: The Holder of the Class A-R Certificates
designated as "tax matters person" of each of the Lower-Tier REMIC and
Upper-Tier REMIC in the manner provided under Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transferor: UBS Warburg Real Estate Securities Inc., a Delaware
corporation, seller of the Mortgage Loans to the Depositor pursuant to the
Mortgage Loan Purchase Agreement.
Trust: As defined in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loan Purchase Agreement, the Servicing Agreements (other than
those rights under the Servicing Agreements that do not relate to the servicing
of the Mortgage Loans (including, without limitation, the representations and
warranties made by the applicable Servicers (with respect to the Mortgage Loans
sold to the Transferor) and the document delivery requirements of such Servicer
and the remedies (including indemnification) available for breaches thereto),
which rights were retained by the Transferor pursuant to the Assignment
Agreements); (ii) the Mortgage Loans and all interest and principal received on
or with respect thereto after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof; (iii) the Collection
Account and the Distribution Account and all amounts deposited therein pursuant
to the applicable provisions of this Agreement (other than, in the case of the
Collection Account, any prepayment penalties deposited therein, which shall be
retained by the Transferor); (iv) property that secured a Mortgage Loan and has
been acquired by foreclosure, deed-in-lieu of foreclosure or otherwise and (v)
all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing.
Trustee: JPMorgan Chase Bank, a New York banking corporation, and
its successors and, if a successor trustee is appointed hereunder, such
successor.
Undercollateralized Group: Any Certificate Group, with respect to
which, on any Distribution Date, the aggregate Class Principal Balance of the
Senior Certificates related to such Certificate Group of which (after giving
effect to distributions to be made on such Distribution Date) is greater than
the Group Pool Principal Balance of the related Loan Group for the following
Distribution Date.
Upper-Tier REMIC: As described in the Preliminary Statement.
U.S. Bank: U.S. Bank National Association, a national banking
association, and its successors and assigns.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, the Voting Rights shall be allocated among Holders of the
remaining Classes of Certificates in proportion to the Certificate Principal
Balances of their respective Certificates on such date.
Xxxxx Fargo: Xxxxx Fargo Bank Minnesota, N.A., a national banking
association, and its successors and assigns, in its capacity as Master Servicer.
WMMSC: Washington Mutual Mortgage Securities Corp., a Delaware
corporation and its successors and assigns, in its capacity as Servicer of the
WMMSC Mortgage Loans.
WMMSC Investment Earnings Amount: With respect to any Distribution
Date, an amount equal to the investment earnings, if any, that accrued on
amounts then held in the Distribution Account in respect of the WMMSC Monthly
Remittance Amount, for the period from and including the Servicer Remittance
Date immediately preceding such Distribution Date, to and including such
Distribution Date.
WMMSC Monthly Remittance Amount: With respect to any Distribution
Date and the WMMSC Mortgage Loans, an amount equal to the funds that WMMSC
withdrew from its Protected Account and remitted to the Trustee on the Servicer
Remittance Date immediately preceding such Distribution Date in respect of any
of the items listed in subclauses (i) through (vii) of Section 2.6(b) of the
WMMSC Servicing Agreement.
WMMSC Mortgage Loans: The Mortgage Loans for which WMMSC is listed
as "Servicer" on the Mortgage Loan Schedule.
WMMSC Servicing Agreement: The Servicing Agreement, dated as of
August 1, 2002, between the Transferor and WMMSC, as the same may be amended
from time to time.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, all calculations of interest
(other than as provided in the Mortgage Loan documents) provided for herein
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans . (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund together with all rights assigned by the
Transferor to the Depositor, pursuant to the Mortgage Loan Purchase Agreement,
solely with respect to the Mortgage Loans, and, solely with respect to the
Mortgage Loans, all of the Transferor's right, title and interest in and to the
Servicing Agreements (other than those rights under the Servicing Agreements
that do not relate to servicing of the Mortgage Loans (including, without
limitation, the representations and warranties made by each Servicer (in its
capacity as loan seller to the Transferor) and the document delivery
requirements of such Servicer and the remedies (including indemnification)
available for breaches thereto), which rights were retained by the Transferor
pursuant to the Assignment Agreements). In connection with the foregoing
assignments, the Transferor has caused each Servicer to enter into the related
Assignment Agreement.
(b) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to the
applicable Custodian, on behalf of the Trustee, for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of ___________
without recourse," with all intervening endorsements showing a complete
chain of endorsement from the originator to the Person endorsing the
Mortgage Note (each such endorsement being sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note); or, with respect to any
Lost Mortgage Note, a lost note affidavit from the related originator or
the Transferor stating that the original Mortgage Note was lost or
destroyed, together with a copy of such Mortgage Note;
(ii) except as provided below, the original recorded Mortgage or a
copy of such Mortgage certified by the related originator as being a true
and complete copy of the Mortgage;
(iii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments), endorsed in the
following form: "JPMorgan Chase Bank, in trust for the MASTR Adjustable
Rate Mortgages Trust 2003-4 for the benefit of the Holders of the Mortgage
Pass-Though Certificates, Series 2003-4" together with, except as provided
below, all interim recorded assignments of such mortgage (each such
assignment, when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates); provided
that, if the related Mortgage has not been returned from the applicable
public recording office, such assignment of the Mortgage may exclude the
information to be provided by the recording office;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(v) except as provided below, the original or duplicate original
lender's title policy and all riders thereto.
Notwithstanding the foregoing, if any Mortgage has been recorded in
the name of Mortgage Electronic Registration System, Inc. ("MERS") or its
designee, no assignment of Mortgage in favor of the Trustee will be required to
be prepared or delivered and instead, the Master Servicer shall enforce the
obligations of the applicable Servicer under the related Servicing Agreement to
cause the Trust to be shown as the owner of the related Mortgage Loan on the
records of MERS for the purpose of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS.
If in connection with any Mortgage Loan the Depositor cannot deliver
(a) the original recorded Mortgage, (b) all interim recorded assignments or (c)
the lender's title policy (together with all riders thereto) satisfying the
requirements of clause (ii), (iii) or (v) above, respectively, concurrently with
the execution and delivery hereof because such document or documents have not
been returned from the applicable public recording office in the case of clause
(ii) or (iii) above, or because the title policy has not been delivered to
either the applicable Custodian or the Depositor by the applicable title insurer
in the case of clause (v) above, the Depositor shall promptly deliver to the
applicable Custodian, in the case of clause (ii) or (iii) above, such original
Mortgage or such interim assignment, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the relevant recording
office, but in no event shall any such delivery of the original Mortgage and
each such interim assignment or a copy thereof, certified, if appropriate, by
the relevant recording office, be made later than one year following the Closing
Date, or, in the case of clause (v) above, no later than 120 days following the
Closing Date; provided, however, in the event the Depositor is unable to deliver
by such date each Mortgage and each such interim assignment by reason of the
fact that any such documents have not been returned by the appropriate recording
office, or, in the case of each such interim assignment, because the related
Mortgage has not been returned by the appropriate recording office, the
Depositor shall deliver such documents to the applicable Custodian as promptly
as possible upon receipt thereof and, in any event, within 720 days following
the Closing Date. The Depositor shall forward or cause to be forwarded to the
applicable Custodian (a) from time to time additional original documents
evidencing an assumption or modification of a Mortgage Loan and (b) any other
documents required to be delivered by the Depositor to the applicable Custodian.
In the event that the original Mortgage is not delivered and in connection with
the payment in full of the related Mortgage Loan and the public recording office
requires the presentation of a "lost instruments affidavit and indemnity" or any
equivalent document, because only a copy of the Mortgage can be delivered with
the instrument of satisfaction or reconveyance, the applicable Custodian shall
execute and deliver or cause to be executed and delivered such a document to the
public recording office. In the case where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, the Transferor shall deliver to the
applicable Custodian a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage.
As promptly as practicable subsequent to such transfer and
assignment, set forth in clause (a) above and in any event, within ninety (90)
days thereafter, the applicable Custodian shall affix the Trustee's name to each
assignment of Mortgage, as the assignee thereof, and, subject to Section 2.02,
the Master Servicer shall enforce the obligations of the related Servicer
pursuant to the related Servicing Agreement to (i) cause such assignment to be
in proper form for recording in the appropriate public office for real property
records and (ii) cause to be delivered for recording in the appropriate public
office for real property records the assignments of the Mortgages to the
Trustee, except that, with respect to any assignments of Mortgage as to which
the related Servicer has not received the information required to prepare such
assignment in recordable form, the related Servicer's obligation to do so and to
deliver the same for such recording shall be as soon as practicable after
receipt of such information and in any event within ninety (90) days after
receipt thereof and except that the related Servicer need not cause to be
recorded any assignment which relates to a Mortgage Loan (a) in any state where,
in an Opinion of Counsel addressed to the Trustee, such recording is not
required to protect the Trustee's interests in the Mortgage Loan against the
claim of any subsequent transferee or any successor to or creditor of the
Depositor or the Transferor, (b) in any state where recordation is not required
by either Rating Agency to obtain the initial ratings set forth in the
Prospectus Supplement on the Certificates or (c) with respect to any Mortgage
which has been recorded in the name of MERS, or its designee. As of the date
hereof, Florida and Maryland are the only states where recordation is required
by either Rating Agency (upon which statement the Master Servicer, Trustee and
each Custodian may conclusively rely), to obtain the initial rating on the
Certificates.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Master Servicer on behalf of the Trustee, will deposit in the Collection
Account the portion of such payment that is required to be deposited in the
Collection Account pursuant to Section 3.07 hereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "MASTR Adjustable Rate
Mortgages Trust 2003-4" and JPMorgan Chase Bank, is hereby appointed as Trustee
in accordance with the provisions of this Agreement.
Section 2.02 Acceptance by Trustee of the Mortgage Loans. Each
Custodian, on behalf of the Trustee, acknowledges receipt of the documents
identified in the Initial Certification in the form annexed hereto as Exhibit F,
and declares that it holds and will hold such documents and the other documents
delivered to it constituting the related Mortgage Files, and each such Custodian
and Trustee together declare that it holds or will hold such other assets as are
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders. Each Custodian acknowledges that it will
maintain possession of the Mortgage Notes in the State of Minnesota with respect
to Xxxxx Fargo Bank Minnesota, N.A., and Arizona with respect to U.S. Bank,
unless otherwise permitted by the Rating Agencies and the Trustee.
Each Custodian agrees to execute and deliver on the Closing Date to
the Depositor and the Trustee an Initial Certification in the form annexed
hereto as Exhibit F. Based on its review and examination, and only as to the
documents identified in such Initial Certification, each Custodian acknowledges,
subject to any applicable exceptions noted on Exhibit F that such documents
appear regular on their face and relate to such Mortgage Loan. Neither Custodian
shall be under any duty or obligation to (i) inspect, review or examine said
documents, instruments, certificates or other papers to determine that the same
are genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face or (ii) determine whether the
Mortgage File should include any of the documents specified in Section
2.01(b)(iv) unless the Mortgage Loan Schedule indicates that such documents are
applicable.
Not later than 90 days after the Closing Date, each Custodian shall
deliver to the Depositor, the Trustee and the Transferor a Final Certification
in the form annexed hereto as Exhibit G, with any applicable exceptions noted
thereon. Each Custodian shall make available, upon request of any
Certificateholder, a copy of any exceptions noted on the Initial Certification
or the Final Certification. Each Custodian shall make available, upon request of
the Trustee, the identity of the originator for any Mortgage Loan with a
material exception.
If, in the course of such review, either Custodian finds any
document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, each Custodian shall list such as an exception in
the Final Certification; provided, however, that such Custodian shall not make
any determination as to whether (i) any endorsement is sufficient to transfer
all right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note, (ii) any assignment is in
recordable form or is sufficient to effect the assignment of and transfer to the
assignee thereof under the mortgage to which the assignment relates or (iii) the
Mortgage File should include any of the documents specified in Section
2.01(b)(iv) unless the Mortgage Loan Schedule indicates that such documents are
applicable.
Upon receiving each Final Certification from the applicable
Custodian, the Trustee shall notify the Transferor of any document defects
listed as exceptions in each such Final Certification. The Trustee shall enforce
the applicable duties of the Transferor pursuant to the terms of this Section
2.02 to correct and cure such document defects, and if the Transferor fails to
correct or cure the defect within such period, and such defect materially and
adversely affects the interests of the Certificateholders in the related
Mortgage Loan, the Trustee shall enforce the Transferor's obligations hereunder,
to purchase such Mortgage Loan at the Purchase Price. Any such purchase of a
Mortgage Loan shall not be effected prior to the delivery to the applicable
Custodian of a Request for Release substantially in the form of Exhibit L. The
Purchase Price for any such Mortgage Loan shall be paid by the Transferor to the
Master Servicer for deposit in the Collection Account on or prior to the
Distribution Account Deposit Date for the Distribution Date in the month
following the month of repurchase and, upon receipt of such deposit, the Master
Servicer shall instruct the applicable Custodian to release, and the applicable
Custodian shall release, the related Mortgage File to the Transferor and the
Trustee shall execute and deliver at the Transferor's written request such
instruments of transfer or assignment prepared by the Transferor, in each case
without recourse, representation or warranty, as shall be necessary to vest in
the Transferor or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto.
The Transferor hereby covenants that within ninety (90) days of the
earlier of its discovery or its receipt of written notice from the Trustee of
any document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, which document defect materially and adversely
affects the interest of the Certificateholders in any Mortgage Loan, it shall
repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the
Purchase Price in the manner set forth above. The Transferor shall promptly
reimburse the Master Servicer and the Trustee for any expenses reasonably
incurred by the Master Servicer or the Trustee in respect of enforcing such
repurchase by the Transferor.
Each Custodian shall retain possession and custody of each related
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. Pursuant to the terms of the related Servicing Agreement, the
Master Servicer shall cause each of the related Servicers to promptly deliver to
the related Custodian who shall thereupon promptly deposit within each Mortgage
File, upon the execution or receipt thereof, the originals of such other
documents or instruments constituting the Mortgage File as come into the
possession of the related Servicers from time to time.
It is understood and agreed that the obligations of the Transferor,
hereunder, to purchase any Mortgage Loan which does not meet the requirements of
Section 2.01 above or substitute for the related Mortgage Loan an Eligible
Substitute Mortgage Loan shall constitute the sole remedy respecting such defect
available to the Trustee, the Master Servicer, the Depositor and any
Certificateholder.
Section 2.03 Remedies for Breaches of Representations and
Warranties. The Transferor hereby makes the representations and warranties set
forth in Schedule II hereto, and by this reference incorporated herein, to the
Depositor and the Trustee, as of the Closing Date, or if so specified therein,
as of the Cut-off Date.
Upon discovery by any of the parties hereto of a breach of a
representation or warranty made by the Transferor pursuant to this Section 2.03
that materially and adversely affects the interests of the Certificateholders in
any Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. A breach which causes a Mortgage Loan not to
constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, will be deemed automatically to materially and adversely affect the
interests of the Certificateholders in such Mortgage Loan. Upon receiving notice
of a breach, the Trustee shall in turn notify the Transferor of such breach. The
Trustee shall enforce the obligations of the Transferor in accordance with this
Section 2.03 to correct or cure any such breach of a representation or warranty
made herein, and if the Transferor fails to correct or cure the defect within
such period, and such defect materially and adversely affects the interests of
the Certificateholders in the related Mortgage Loan, the Trustee shall enforce
the Transferor's obligations hereunder to (i) purchase such Mortgage Loan at the
Purchase Price or (ii) substitute for the related Mortgage Loan an Eligible
Substitute Mortgage Loan, in each case, such Mortgage Loan (a "Deleted Mortgage
Loan") will be removed from the Trust Fund.
The Transferor hereby covenants that within ninety (90) days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made pursuant to this Section 2.03
which materially and adversely affects the interest of the Certificateholders in
any Mortgage Loan it shall cure such breach in all material respects, and if
such breach is not so cured, shall, (i) if such ninety (90) day period expires
prior to the second anniversary of the Closing Date, remove such Deleted
Mortgage Loan from the Trust Fund and substitute in its place an Eligible
Substitute Mortgage Loan or Loans into the Trust Fund, in the manner and subject
to the conditions set forth in this Section; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the
manner set forth below. The Transferor shall promptly reimburse the Master
Servicer and the Trustee for any expenses reasonably incurred by the Master
Servicer or the Trustee in respect of enforcing the remedies for such breach by
the Transferor.
With respect to any Eligible Substitute Mortgage Loan or Loans, the
Transferor shall deliver to the related Custodian on behalf of the Trustee for
the benefit of the Certificateholders the Mortgage Note, the Mortgage, the
related assignment of the Mortgage, and such other documents and agreements as
are required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution is permitted to be made on
any day in any calendar month after the Determination Date for such month.
With respect to substitutions made by the Transferor, Scheduled
Payments due with respect to Eligible Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
Transferor on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter the
Transferor shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The related Custodian shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Eligible Substitute
Mortgage Loan or Loans and the related Custodian shall deliver the amended
Mortgage Loan Schedule to the Trustee. Upon such substitution, the Eligible
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Transferor shall be deemed to have made with
respect to such Eligible Substitute Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to this Section
2.03 with respect to such Mortgage Loan. Upon any such substitution and the
deposit to the Collection Account of the amount required to be deposited therein
in connection with such substitution as described in the following paragraph,
the related Custodian shall release the Mortgage File held for the benefit of
the Certificateholders relating to such Deleted Mortgage Loan to the Transferor
and shall execute and deliver or cause the Trustee to execute and deliver at the
Transferor's direction such instruments of transfer or assignment prepared by
the Transferor, without recourse, representation or warranty, as shall be
necessary to vest title in the Transferor, as applicable, or its designee, the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
For any month in which the Transferor substitutes one or more
Eligible Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
principal balance of all such Eligible Substitute Mortgage Loans as of the date
of substitution is less than the aggregate Scheduled Principal Balance of all
such Deleted Mortgage Loans (after application of the scheduled principal
portion of the monthly payments due in the month of substitution). The amount of
such shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be remitted by the Transferor, and the Master Servicer shall deposit
such amounts received from the Transferor into the Collection Account on or
before the Distribution Account Deposit Date for the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
In the event that the Transferor shall have repurchased a Mortgage
Loan, the Purchase Price therefor shall be deposited in the Collection Account
pursuant to Section 3.07 on or before the Distribution Account Deposit Date for
the Distribution Date in the month following the month during which the
Transferor became obligated hereunder to repurchase or replace such Mortgage
Loan and upon such deposit of the Purchase Price and receipt of a Request for
Release in the form of Exhibit L hereto, the related Custodian shall release the
related Mortgage File held for the benefit of the Certificateholders to the
Transferor, and the Trustee shall execute and deliver at the Transferor's
direction such instruments of transfer or assignment prepared by the Transferor,
in each case without recourse, representation or warranty, as shall be necessary
to transfer title from the Trustee. It is understood and agreed that the
obligation under this Agreement of the Transferor to cure, repurchase or replace
any Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedies against the Transferor respecting such matters
available to Certificateholders, the Master Servicer, the Depositor or the
Trustee on their behalf.
The provisions of this Section 2.03 shall survive the conveyance and
assignment of the Mortgage Files to the Trustee and the delivery of the
respective Mortgage Files to the related Custodian for the benefit of the
Trustee and the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans. The Depositor hereby represents and warrants to the Trustee
and the Master Servicer with respect to each Mortgage Loan as of the date hereof
or such other date set forth herein that as of the Closing Date, and following
the transfer of the Mortgage Loans to it by the Transferor the Depositor had
good title to the Mortgage Loans and the Mortgage Notes were subject to no
offsets, liens, defenses or counterclaims.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the Mortgage Files to
the Master Servicer. Upon discovery by the Depositor, the Transferor, the Master
Servicer or the Trustee of a breach of any of the foregoing representations and
warranties set forth in this Section 2.04 (referred to herein as a "breach"),
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05 [Reserved].
Section 2.06 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and
acknowledges the issuance of the Lower-Tier REMIC Regular Interests and the
Class A-LR Interest in exchange therefor. The Trustee acknowledges the transfer
and assignment to it of the Lower-Tier REMIC Regular Interests and, concurrently
with such transfer and assignment, the issuance of the Class A-UR Interest and
has executed, authenticated and delivered to or upon the order of the Depositor,
the Certificates in authorized denominations evidencing directly or indirectly
the entire ownership of the Trust Fund. The Trustee agrees to hold the Trust
Fund and the Lower-Tier REMIC Regular Interests and to exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates and to perform the duties set forth in this Agreement to the best
of its ability, to the end that the interests of the Holders of the Certificates
may be adequately and effectively protected.
Section 2.07 REMIC Matters. The Preliminary Statement sets forth the
designations as "regular interests" or "residual interests" and "latest possible
maturity date" for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. Each REMIC shall have the calendar year as its fiscal year and shall use
the accrual method of accounting.
The pass-through rate with respect to the Class L-1B Interest and
Class L-1Q Interest shall be a per annum rate equal to the weighted average of
the Net Mortgage Rates on the Group 1 Mortgage Loans. The pass-through rate with
respect to the Class L-2B Interest and Class L-2Q Interest shall be a per annum
rate equal to the weighted average of the Net Mortgage Rates on the Group 2
Mortgage Loans. The pass-through rate with respect to the Class L-3B Interest
and Class L-3Q Interest shall be a per annum rate equal to the weighted average
of the Net Mortgage Rates on the Group 3 Mortgage Loans. Each of the foregoing
determinations and in the preceding three paragraphs shall be weighted on the
basis of their respective Scheduled Principal Balances, as of the first day of
the related Interest Accrual Period (after taking into account scheduled
payments of principal on such date).
As of the Closing Date and any date of determination, (i) the
principal balance of the Class L-1B Interest shall equal 0.10% of the Group 0
Xxxxxxxxxxx Xxxxxx, (xx) the principal balance of the Class L-2B Interest shall
equal 0.10% of the Group 2 Subordinate Amount and (iii) and the principal
balance of the Class L-3B Interest shall equal 0.10% of the Group 3 Subordinate
Amount (in each case, computed to at least eight decimal places).
As of the Closing Date and any date of determination, (i) the
principal balance of the Class L-1Q Interest shall equal the excess of the
aggregate Scheduled Principal Balance of the Group 1 Mortgage Loans (less $100
allocable to the Class A-R Certificate (in respect of the Class A-LR Interest)
until paid) over the principal balance of the Class L-1B Interest, (ii) the
principal balance of the Class L-2Q Interest shall equal the excess of the
aggregate Scheduled Principal Balance of the Group 2 Mortgage Loans over the
principal balance of the Class L-2B Interest and (iii) the principal balance of
the Class L-3Q Interest shall equal the excess of the aggregate Scheduled
Principal Balance of the Group 3 Mortgage Loans over the principal balance of
the Class L-3B Interest.
For federal income tax purposes, the Pass-Through Rate for the Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates for
any Distribution Date shall be expressed as a per annum rate equal to the
weighted average of (i) the pass-through rate for the Class L-1B Interest, (ii)
the pass-through rate for the Class L-2B Interest and (iii) the pass-through
rate for the Class L-3B Interest, weighted, for each of the foregoing
determinations, on the basis of the respective principal balance of each such
Lower Tier REMIC Regular Interest (computed to at least eight decimal places),
immediately prior to such Distribution Date.
Section 2.08 Covenants of the Master Servicer. The Master Servicer
hereby covenants to the Depositor and the Trustee as follows:
(a) subject to Section 3.01, the Master Servicer shall cause each
Servicer to perform its obligations under the applicable Servicing Agreement;
and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any affiliate
of the Depositor or the Trustee and prepared by the Master Servicer pursuant to
this Agreement will contain any untrue statement of a material fact or omit to
state a material fact necessary to make such information, certificate, statement
or report not misleading; provided, however, that the Master Servicer shall have
no liability hereunder and shall be indemnified pursuant to Section 6.03 for any
information with respect to the WMMSC Mortgage Loans included in any report
provided hereunder.
Section 2.09 Representations and Warranties of the Master Servicer.
The Master Servicer hereby represents and warrants to the Depositor, the
Trustee, and each Custodian, or if so specified herein, as of the Cut-off Date:
(a) The Master Servicer is duly organized as a national banking
association and is validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to transact any
and all business contemplated by this Agreement to be conducted by the Master
Servicer in any state in which a Mortgaged Property is located or is otherwise
not required under applicable law to effect such qualification and, in any
event, is in compliance with the doing business laws of any such state, to
master service the Mortgage Loans in accordance with the terms of this Agreement
and to perform any of its other obligations under this Agreement in accordance
with the terms thereof.
(b) The Master Servicer has the full power and authority to master
service each Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary action on the part of the Master Servicer the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) The execution and delivery of this Agreement by the Master
Servicer, and the master servicing of the Mortgage Loans by the Master Servicer
under this Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance with the
terms thereof are in the ordinary course of business of the Master Servicer and
will not (i) result in a material breach of any term or provision of the
articles of incorporation or by-laws of the Master Servicer, (ii) materially
conflict with, result in a material breach, violation or acceleration of, or
result in a material default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or (iii) constitute a material violation of any statute, order or regulation
applicable to the Master Servicer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Master Servicer; and
the Master Servicer is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
the Master Servicer's ability to perform or meet any of its obligations under
this Agreement.
(d) The Master Servicer or an affiliate thereof is an approved
servicer of conventional mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac and is a
mortgagee approved by the Secretary of Housing and Urban Development pursuant to
sections 203 and 211 of the National Housing Act.
(e) No litigation is pending or threatened against the Master
Servicer that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master Servicer to master
service the Mortgage Loans or to perform any of its other obligations under this
Agreement in accordance with the terms thereof.
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
the Master Servicer has obtained the same.
Section 2.10 Representations and Warranties of the Custodians. Each
Custodian, severally and not jointly, hereby represents and warrants to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date, or if so
specified herein, as of the Cut-off Date:
(a) Such Custodian is duly organized as a national banking
association and is validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to transact any
and all business contemplated by this Agreement to be conducted by such
Custodian in any state in which a Mortgaged Property is located or is otherwise
not required under applicable law to effect such qualification and, in any
event, is in compliance with the doing business laws of any such state, to the
extent necessary to perform any of its obligations under this Agreement in
accordance with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought.
(c) The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of such Custodian and will not (i) result in a
material breach of any term or provisions of the articles of incorporation or
by-laws of such Custodian, (ii) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which such Custodian is a
party or by which it may be bound, or (iii) constitute a material violation of
any statute, order or regulation applicable to such Custodian of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over such Custodian; and such Custodian is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair such Custodian's ability to perform or meet any
of its obligations under this Agreement.
(d) No litigation is pending or threatened against such Custodian
that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of such Custodian to perform any
of its obligations under this Agreement in accordance with the terms thereof.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Custodian of, or compliance by such Custodian with, this
Agreement or the consummation of the transactions contemplated thereby, or if
any such consent, approval, authorization or order is required, such Custodian
has obtained the same.
ARTICLE III
ADMINISTRATION AND MASTER
SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicing of Mortgage Loans. For and on behalf
of the Certificateholders, the Master Servicer shall supervise, monitor and
oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. With respect to WMMSC, the WMMSC Mortgage Loans
and the WMMSC Servicing Agreement, the obligations of the Master Servicer
imposed in the preceding sentence shall be limited to: (i) collecting the
monthly report provided by WMMSC under the WMMSC Servicing Agreement, (ii)
enforcing WMMSC's obligation to remit to the Trustee hereunder, (iii) receiving
the annual compliance statements from WMMSC and (iv) complying with the
provisions of Section 3.02(b) hereof and the WMMSC Servicing Agreement with
respect to the termination of WMMSC. In performing its obligations hereunder,
the Master Servicer shall act in a manner consistent with this Agreement,
subject to the prior two sentences, and with customary and usual standards of
practice of prudent mortgage loan master servicers. Furthermore, the Master
Servicer shall oversee and consult with each Servicer as necessary from
time-to-time to carry out the Master Servicer's obligations hereunder, shall
receive, review and evaluate all reports, information and other data provided to
the Master Servicer by each Servicer (provided, however, the Master Servicer
shall have no obligation to review or evaluate any reports, information and
other data provided by WMMSC with respect to the WMMSC Mortgage Loans) and shall
cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers' and Master Servicer's records, and based on such
reconciled and corrected information, prepare the statements specified in
Section 4.04 and any other information and statements required hereunder;
provided, however, that the Master Servicer shall be under no obligation to
perform the duties outlined in this sentence with respect to WMMSC or the WMMSC
Mortgage Loans other than collecting the mortgage loan information provided to
the Master Servicer by WMMSC to enable the Master Servicer to prepare the
statement required under Section 4.04. Other than with respect to WMMSC and the
WMMSC Mortgage Loans, the Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicers to the
Collection Account pursuant to the applicable Servicing Agreements.
In accordance with the standards of the preceding paragraph and to
the extent the related Servicer does not make such advance, the Master Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.07, and further as
provided in Section 3.08. The costs incurred by the Master Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Scheduled Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
Section 3.02 Monitoring of Servicers. (a) The Master Servicer shall
be responsible for reporting to the Trustee and the Depositor the compliance by
each Servicer with its duties under the related Servicing Agreement. In the
review of each Servicer's activities, the Master Servicer may rely upon an
officer's certificate of the Servicer with regard to such Servicer's compliance
with the terms of its Servicing Agreement. In the event that the Master
Servicer, in its judgment, determines that a Servicer should be terminated in
accordance with its Servicing Agreement, or that a notice should be sent
pursuant to such Servicing Agreement with respect to the occurrence of an event
that, unless cured, would constitute grounds for such termination, the Master
Servicer shall notify the Depositor and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as successor Servicer of the related Mortgage Loans
or cause the Trustee to enter in to a new Servicing Agreement with a successor
Servicer selected by the Master Servicer; provided, however, it is understood
and acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of 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 Master Servicer, in its good faith
business judgment, would require were it the owner of the related Mortgage
Loans. The Master Servicer shall pay the costs of such enforcement at its own
expense, provided that the Master Servicer shall not be required to prosecute or
defend any legal action except to the extent that the Master Servicer shall have
received reasonable indemnity for its costs and expenses in pursuing such
action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data and
the completion, correction or manipulation of such servicing data as may be
required by the successor servicer to correct any errors or insufficiencies in
the servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Collection
Account.
(d) The Master Servicer shall require each Servicer to comply with
the remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
(f) If a Servicer fails to make its required payment of Compensating
Interest on any Distribution Date, the Master Servicer will be required to make
such payment of Compensating Interest to the same extent that such Servicer was
required to make such payment of Compensating Interest.
(g) To the extent a Servicer requests the consent of the Trust or
the Master Servicer with respect to any servicing-related matter for which the
applicable Servicer is required to seek consent under the applicable Servicing
Agreement or Assignment Agreement, the Master Servicer (or the applicable
Custodian with respect to any custody-related matters) shall promptly or within
the time frame specified in such Servicing Agreement, if any, evaluate such
request for consent in the best interest of the Trust and the
Certificateholders, and grant or withhold such consent accordingly.
Section 3.03 [Reserved].
Section 3.04 Rights of the Depositor and the Trustee in Respect of
the Master Servicer. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer hereunder and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer hereunder and in connection with any such defaulted obligation to
exercise the related rights of the Master Servicer hereunder; provided that the
Master Servicer shall not be relieved of any of its obligations hereunder by
virtue of such performance by the Depositor or its designee. Neither the Trustee
nor the Depositor shall have any responsibility or liability for any action or
failure to act by the Master Servicer or any Servicer nor shall the Trustee or
the Depositor be obligated to supervise the performance of the Master Servicer
hereunder or any Servicer under any Servicing Agreement or otherwise.
Section 3.05 Trustee to Act as Master Servicer. In the event that
the Master Servicer shall for any reason no longer be the Master Servicer
hereunder (including by reason of a Master Servicer Event of Termination), the
Trustee or its successor shall in accordance with Section 7.02 thereupon assume
all of the rights and obligations of the Master Servicer hereunder arising
thereafter (except that the Trustee shall not be (i) liable for losses of the
predecessor Master Servicer or any acts or omissions of the predecessor Master
Servicer hereunder), (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or 2.03
hereof, (iv) responsible for expenses of the Master Servicer pursuant to Section
2.03 or (v) deemed to have made any representations and warranties of the Master
Servicer pursuant to Section 2.09 hereunder). Any such assumption shall be
subject to Section 7.02 hereof. If the Master Servicer shall for any reason no
longer be the Master Servicer (including by reason of any Master Servicer Event
of Termination), the Trustee or its successor may, but shall not be obligated
to, succeed to any rights and obligations of the Master Servicer under each
subservicing agreement.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best efforts
to effect the orderly and efficient transfer of the substitute subservicing
agreement to the assuming party.
The Trustee or successor master servicer shall be entitled to be
reimbursed from the Master Servicer for all costs associated with the transfer
of master servicing from the Master Servicer, including, without limitation, any
costs or expenses associated with the complete transfer of all master servicing
data and the completion, correction or manipulation of such master servicing
data as may be required by the Trustee or successor master servicer to correct
any errors or insufficiencies in the master servicing data or otherwise to
enable the Trustee or successor master servicer to master service the Mortgage
Loans properly and effectively.
If the Master Servicer does not pay such reimbursement within thirty
(30) days of its receipt of an invoice therefor, such reimbursement shall be an
expense of the Trust and the Trustee shall be entitled to withdraw such
reimbursement from amounts on deposit in the Distribution Account pursuant to
Section 3.10(b)(iv); provided that the Master Servicer shall reimburse the Trust
for any such expense incurred by the Trust.
Section 3.06 Protected Accounts. (a) The Master Servicer shall
enforce the obligation of each Servicer to establish and maintain a Protected
Account in accordance with the applicable Servicing Agreement, with records to
be kept with respect thereto on a Mortgage Loan by Mortgage Loan basis, into
which accounts shall be deposited within 48 hours (or as of such other time
specified in the related Servicing Agreement) of receipt all collections of
principal and interest on any Mortgage Loan and with respect to any REO Property
received by a Servicer, including Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds, and advances made from the Servicer's own funds (less
servicing compensation as permitted by the applicable Servicing Agreement in the
case of any Servicer) and all other amounts to be deposited in the Protected
Account. The Master Servicer is hereby authorized to make withdrawals from and
deposits to the related Protected Account for purposes required or permitted by
this Agreement.
(b) In accordance with the terms of the applicable Servicing
Agreement, amounts on deposit in a Protected Account may be invested by the
applicable Servicer in investments specified in such Servicing Agreement. The
income earned from investments made pursuant to this Section 3.06 shall be paid
to the related Servicer under the applicable Servicing Agreement, and the risk
of loss of moneys required to be distributed to the Certificateholders resulting
from such investments shall be borne by and be the risk of the related Servicer.
The related Servicer (to the extent provided in the Servicing Agreement) shall
deposit the amount of any such loss in the Protected Account within two Business
Days of receipt of notification of such loss but not later than the second
Business Day prior to the Distribution Date on which the moneys so invested are
required to be distributed to the Certificateholders.
Section 3.07 Collection of Mortgage Loan Payments; Collection
Account; Distribution Account. (a) The Master Servicer shall enforce the
obligation of the Servicers to collect all payments called for under the terms
and provisions of the Mortgage Loans to the extent such procedures shall be
consistent with the applicable Servicing Agreement and the terms and provisions
of any related Required Insurance Policy.
(b) The Master Servicer shall establish and maintain a Collection
Account into which the Master Servicer shall deposit or cause to be deposited
within two Business Days of receipt, except as otherwise specifically provided
herein, the following payments and collections remitted by the Servicers, or
received by it in respect of Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans on or
before the Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Servicing Fee;
(iii) all Liquidation Proceeds (including Insurance Proceeds), other
than proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the applicable
Servicers or Master Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.07(e) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.15(b), 3.15(d), and in respect of net monthly rental
income from REO Property pursuant to Section 3.15 hereof;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to Section
4.01;
(viii) any prepayment penalties received from any Servicer;
(ix) any Compensating Interest Payments;
(x) any amounts deposited by the Master Servicer in connection with
a deductible clause in any blanket hazard insurance policy in respect of
the Mortgage Loans in such Group;
(xi) all proceeds of a primary mortgage guaranty insurance policy in
respect of the Mortgage Loans in such Group; and
(xii) any other amounts required to be deposited hereunder.
In the event that the Master Servicer shall deposit into the Collection Account
any amount not required to be deposited, it may at any time withdraw such amount
from the Collection Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds deposited in
the Collection Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.10.
(c) [Reserved].
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt but no later than on the Distribution Account Deposit Date, deposit in
the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.10(a)(ix)(A);
(ii) any amount deposited by the Master Servicer pursuant to Section
3.07(e) in connection with any losses on Permitted Investments; and
(iii) any other amounts described hereunder which are required to be
deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not required to be
remitted, it may at any time direct the Trustee in writing to withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.10. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Master Servicer.
(e) Each institution at which the Collection Account or Distribution
Account is maintained shall invest the funds on deposit in the Collection
Account or Distribution Account as directed in writing by the Master Servicer,
in Permitted Investments. Funds invested in the Collection Account shall mature
not later than the Business Day next preceding the related Distribution Account
Deposit Date (except that if such Permitted Investment is an obligation of or is
managed by the institution that maintains such account, then such Permitted
Investment shall mature not later than such Distribution Account Deposit Date).
The Trustee shall, with respect to funds other than the WMMSC Monthly Remittance
Amount, as directed in writing by the Master Servicer, and with respect to the
WMMSC Monthly Remittance Amount, as directed in writing by WMMSC, either (i)
hold funds on deposit in the Distribution Account uninvested in a trust or
deposit account of the Trustee with no liability for interest or other
compensation thereon, except as otherwise agreed in writing with the Master
Servicer or WMMSC, as applicable, or (ii) invest funds on deposit in the
Distribution Account in Permitted Investments as directed by the Master Servicer
or WMMSC, as applicable, which Permitted Investments shall mature not later than
the Business Day next preceding the Distribution Date (except that if such
Permitted Investment is an obligation of or is managed by the institution that
maintains such fund or account, then such Permitted Investment shall mature not
later than such Distribution Date). Permitted Investments in respect of the
Collection Account or the Distribution Account shall not be sold or disposed of
prior to their maturity. All such Permitted Investments shall be made in the
name of the Trustee, for the benefit of the Certificateholders. All income and
gain net of any losses realized from any such investment of funds on deposit in
the Collection Account shall be for the benefit of the Master Servicer as master
servicing compensation and shall be remitted to it monthly as provided herein.
The amount of any realized losses in the Collection Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
Master Servicer (from its own funds without any right of reimbursement) in the
Collection Account or paid to the Trustee by wire transfer of immediately
available funds for deposit into the Distribution Account. All income and gain
(net of any losses realized from any such investment of funds on deposit in the
Distribution Account and net of the WMMSC Investment Earnings Amount) shall be
for the benefit of the Master Servicer as additional compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses in
the Distribution Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Master Servicer or WMMSC, as
applicable, in the Distribution Account. The Trustee shall not be liable for the
amount of any loss incurred in respect of any investment or lack of investment
of funds held in the Collection Account (except to the extent the Trustee is the
obligor and has defaulted thereon) or the Distribution Account and made in
accordance with this Section 3.07. In the absence of written instructions by (i)
the Master Servicer, with respect to funds other than the WMMSC Monthly
Remittance Amount, or (ii) WMMSC, with respect to the WMMSC Monthly Remittance
Amount, to invest funds held in the Collection Account or Distribution Account,
all funds on deposit therein shall remain uninvested.
(f) The Master Servicer shall give notice to the Trustee, each
Rating Agency and the Depositor of any proposed change of the location of the
Collection Account prior to any change thereof. The Trustee shall give notice to
the Master Servicer, each Rating Agency and the Depositor of any proposed change
of the location of the Distribution Account prior to any change thereof.
Section 3.08 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. To the extent required by the related Servicing Agreement and
by the related Mortgage Note and not violative of current law, the Master
Servicer shall require each Servicer to establish and maintain one or more
accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by such Servicer) for the payment
of taxes, assessments, hazard insurance premiums or comparable items for the
account of the Mortgagors. Nothing herein shall require the Master Servicer to
compel a Servicer to establish an Escrow Account in violation of applicable law.
Section 3.09 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Master Servicer and each Custodian shall
afford and the Master Servicer shall require the Servicers to afford the
Depositor and the Trustee and their respective agents or representatives
reasonable access to all records and documentation regarding the Mortgage Loans
and all accounts, insurance information and other matters relating to this
Agreement or the Servicing Agreement, such access being afforded without charge,
but only upon reasonable request and during normal business hours at the office
designated by the Master Servicer or the applicable Servicer or the related
Custodian.
Upon reasonable advance notice in writing, the Master Servicer and
each Custodian will provide or the Master Servicer shall require the Servicers,
to the extent set forth in the applicable Servicing Agreement, to provide to
each Certificateholder which is a savings and loan association, bank or
insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit such
Certificateholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates; provided,
that the Master Servicer, the applicable Servicer or the related Custodian shall
be entitled to be reimbursed by each such Certificateholder for actual expenses
incurred by the Master Servicer, the applicable Servicer or the related
Custodian in providing such reports and access.
Section 3.10 Permitted Withdrawals from the Collection Account and
Distribution Account. (a) The Master Servicer may from time to time make
withdrawals from the Collection Account for the following purposes:
(i) to pay to the Servicers (to the extent not previously retained
by them), the servicing compensation to which they are entitled pursuant
to Section 3.19, and to pay to the Master Servicer, earnings on or
investment income with respect to funds in or credited to the Collection
Account;
(ii) to reimburse the Servicers or the Master Servicer for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this sub-clause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made;
(iii) to reimburse the Servicers or the Master Servicer for any
Nonrecoverable Advance previously made;
(iv) to reimburse the Servicers or the Master Servicer for Insured
Expenses from the related Insurance Proceeds;
(v) to reimburse the Servicers or the Master Servicer for (a)
unreimbursed Servicing Advances, the Servicers' or the Master Servicer's
right to reimbursement pursuant to this clause (a) with respect to any
Mortgage Loan being limited to amounts received on such Mortgage Loan(s)
which represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01 or Section 3.06 and (b) for unpaid
Servicing Fees as provided in Section 3.15 hereof;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02 or 2.03, all amounts received thereon after the date of such
purchase;
(vii) to reimburse the Transferor, the Master Servicer or the
Depositor for expenses or indemnities incurred by any of them and
reimbursable pursuant to Section 6.03 hereof;
(viii) to withdraw any amount deposited in the Collection Account
and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to (A)
withdraw (i) an amount equal to the related Group 1 Available Funds, Group
2 Available Funds and Group 3 Available Funds for such Distribution Date
(ii) on or after the Cross-Over Date only, any Recoveries received during
the related Prepayment Period, and remit by wire transfer of immediately
available funds such amounts to the Trustee for deposit in the
Distribution Account and (B) withdraw any prepayment penalties received
from any Servicer and remit by wire transfer of immediately available
funds such amounts to the Transferor pursuant to Section 3.24;
(x) to reimburse the Master Servicer for any costs or expenses
incurred by it and reimbursable pursuant to Section 3.02; and
(xi) to clear and terminate the Collection Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
The Master 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 pursuant to such sub-clauses (i), (ii), (iv), (v) and
(vi). Prior to making any withdrawal from the Collection Account pursuant to
sub-clause (iii), the Master Servicer shall deliver to the Trustee an Officer's
Certificate of a Master Servicing Officer indicating the amount of any previous
Advance determined by the Master Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans(s), and their respective portions of such
Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders, in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of any
taxes that it is authorized to withhold pursuant to the last paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Distribution Account for the following purposes:
(i) to pay to the Master Servicer earnings on or investment income,
if any, and WMMSC the WMMSC Investment Earnings Amount, if any, with
respect to funds in or credited to the Distribution Account;
(ii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein in accordance with Section 3.07(d);
(iii) to withdraw any indemnity, expense or other reimbursement owed
to it pursuant to this Agreement, including, without limitation, Section
3.05, Section 7.02 and Section 8.05; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01 hereof.
Section 3.11 Maintenance of Hazard Insurance. (a) For each Mortgage
Loan, the Master Servicer shall enforce any obligation of the Servicers under
the related Servicing Agreements to maintain or cause to be maintained standard
fire and casualty insurance and, where applicable, flood insurance, all in
accordance with the provisions of the related Servicing Agreements. It is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the applicable Servicing Agreement and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall at
any time be in force and as shall require such additional insurance.
(b) Pursuant to Sections 3.07 and 3.08, any amounts collected by the
Master Servicer, or by any Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Collection Account,
subject to withdrawal pursuant to Sections 3.07 and 3.08. Any cost incurred by
the Master Servicer or any Servicer in maintaining any such insurance if the
Mortgagor defaults in its obligation to do so shall be added to the amount owing
under the Mortgage Loan where the terms of the Mortgage Loan so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.07 and 3.08.
Section 3.12 Presentment of Claims and Collection of Proceeds. The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured's claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to a Servicer and remitted to the Master Servicer) in respect of such policies,
bonds or contracts shall be promptly deposited in the Collection Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.13 Maintenance of the Primary Insurance Policies. (a) The
Master Servicer shall not take, or permit any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. The Master Servicer shall use its
best reasonable efforts to cause each Servicer (to the extent required under the
related Servicing Agreement) to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
The Master Servicer shall not, and shall not permit any Servicer (to the extent
required under the related Servicing Agreement) to, cancel or refuse to renew
any such Primary Insurance Policy that is in effect at the date of the initial
issuance of the Mortgage Note and is required to be kept in force hereunder
except in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
(to the extent required under the related Servicing Agreement) to present, on
behalf of the Trustee and the Certificateholders, claims to the insurer under
any Primary Insurance Policies and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Sections 3.07 and
3.08, any amounts collected by the Master Servicer or any Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Collection
Account, subject to withdrawal pursuant to Sections 3.07 and 3.08.
Section 3.14 Realization upon Defaulted Mortgage Loans. The Master
Servicer shall cause each Servicer (to the extent required under the related
Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged 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, all in
accordance with the applicable Servicing Agreement.
Section 3.15 REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any related Mortgage Loan, the deed
or certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the related Certificateholders. The Master Servicer shall, to the
extent provided in the applicable Servicing Agreement, cause the applicable
Servicer to sell any REO Property as expeditiously as possible and in accordance
with the provisions of this Agreement and the related Servicing Agreement, as
applicable. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall cause the applicable Servicer to protect and conserve such REO
Property in the manner and to the extent required by the applicable Servicing
Agreement, subject to the REMIC Provisions.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable Servicer
as provided above shall be deposited in the Protected Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the Master Servicer for deposit
into the related Collection Account.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall enforce the obligation of the related
Servicer to dispose of such Mortgaged Property prior to the close of the third
calendar year after the year in which the Trust Fund acquires such Mortgaged
Property unless the Servicer shall have applied for and received an extension of
such period from the Internal Revenue Service, in which case the Trust Fund may
continue to hold such Mortgaged Property for the period of such extension.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used for the production of income by or on behalf of the Trust Fund
in such a manner or pursuant to any terms that would (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or (ii) subject either REMIC hereunder to the
imposition of any federal, state or local income taxes on the income earned from
such Mortgaged Property under Section 860G(c) of the Code or otherwise, unless
the Master Servicer or related Servicer, as applicable, has agreed to indemnify
and hold harmless the Trust Fund with respect to the imposition of any such
taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of a
deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer will cause the applicable Servicer to comply
with the provisions of Treasury Regulation Section 1.1445-2(d)(3) (or any
successor thereto) necessary to assure that no withholding tax obligation arises
with respect to the proceeds of such foreclosure except to the extent, if any,
that proceeds of such foreclosure are required to be remitted to the obligors on
such Mortgage Loan.
Section 3.16 Due-on-Sale Clauses; Assumption Agreements. To the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 3.17 Trustee to Cooperate; Release of Mortgage Files. Upon
(i) the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes or (ii) otherwise in connection with the servicing
of any Mortgage Loan, the Master Servicer shall, upon receipt of notification
from the related Servicer pursuant to the applicable Servicing Agreement, which
notification shall state that such payment in full has been deposited in the
Collection Account or has otherwise been escrowed in a manner customary for such
purposes, instruct the related Custodian to, and the related Custodian shall,
release the related Mortgage File to the related Servicer. Upon notification,
the Trustee shall at the Master Servicer's direction execute and deliver to the
related Custodian the request for reconveyance, deed of reconveyance or release
or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage in each case provided by the related Custodian, together with the
Mortgage Note with written evidence of cancellation thereon. Expenses incurred
in connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the related Mortgagor.
If the Master Servicer or any related Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement or the Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
Section 3.18 Documents, Records and Funds in Possession of Master
Servicer and Custodians to Be Held for the Trustee. Notwithstanding any other
provisions of this Agreement, the Master Servicer shall forward to the related
Custodian with an instruction to, and the related Custodian shall, place within
the Mortgage File and the Master Servicer shall cause each Servicer to transmit
to the Master Servicer as required by this Agreement and the related Servicing
Agreement all documents and instruments in respect of a Mortgage Loan coming
into the possession of the Master Servicer or related Servicer from time to time
and shall account fully to the Trustee for any funds received by the Master
Servicer or related Servicer or which otherwise are collected by the Master
Servicer, or related Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan. All Mortgage Files and funds collected or held by,
or under the control of, the Master Servicer, the related Servicer or the
related Custodian in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, including but
not limited to, any funds on deposit in the Collection Account or any Protected
Account, shall be held by the Master Servicer, the related Servicer or the
related Custodian for and on behalf of the Trustee and shall be and remain the
sole and exclusive property of the Trust, subject to the applicable provisions
of this Agreement and the related Servicing Agreement. Each of the Master
Servicer and the Custodians also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the Collection
Account, Distribution Account or any Escrow Account, or any funds that otherwise
are or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Mortgage File or any funds collected on, or
in connection with, a Mortgage Loan, except, however, that the Master Servicer
shall be entitled to set off against and deduct from any such funds any amounts
that are properly due and payable to the Master Servicer under this Agreement.
Section 3.19 Master Servicing Compensation. As compensation for its
activities hereunder, the Master Servicer shall be entitled to retain or
withdraw from the Collection Account an amount equal to all investment income
gained on amounts held in the Collection Account. The Trustee will remit from
amounts on deposit in the Distribution Account to the Master Servicer all
investment income earned on amounts held in the Distribution Account net of the
WMMSC Investment Earnings Amount, if any, which the Trustee shall remit directly
to WMMSC.
Section 3.20 Access to Certain Documentation. The Master Servicer
and each Custodian shall provide and the Master Servicer shall cause each
Servicer to provide in accordance with the related Servicing Agreement to the
OTS and the FDIC and to comparable regulatory authorities supervising Holders of
Subordinate Certificates and the examiners and supervisory agents of the OTS,
the FDIC and such other authorities, access to the documentation regarding the
Mortgage Loans required by applicable regulations of the OTS and the FDIC. Such
access shall be afforded without charge, but only upon reasonable and prior
written request and during normal business hours at the offices designated by
the Master Servicer, the related Custodian and the related Servicer. Nothing in
this Section shall limit the obligation of the Master Servicer, the related
Custodian and the related Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of the Master
Servicer, the related Custodian or the related Servicer to provide access as
provided in this Section as a result of such obligation shall not constitute a
breach of this Section. In fulfilling such requests, the Master Servicer and the
related Custodian shall not be responsible to determine the sufficiency of such
information.
Section 3.21 Annual Statement as to Compliance. The Master Servicer
shall deliver to the Depositor, each Rating Agency and the Trustee on or before
March 15th of each year, commencing with March 15, 2004, an Officer's
Certificate, signed by two officers of the Master Servicer, stating, as to the
signers thereof, that (i) a review of the activities of the Master Servicer
during the preceding calendar year and of the performance of the Master Servicer
under this Agreement has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Master Servicer
has fulfilled all 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.
Section 3.22 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. On or before March 15th of each year,
commencing with March 15, 2004, if the Master Servicer has, during the course of
any fiscal year, directly serviced any Mortgage Loan, then at its expense shall
cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, the
Depositor, the Trustee or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Trustee and the Depositor to the effect that-such firm has examined certain
documents and records relating to the servicing of the Mortgage Loans under this
Agreement or of mortgage loans under pooling and servicing agreements
substantially similar to this Agreement (such statement to have attached thereto
a schedule setting forth the pooling and servicing agreements covered thereby)
and that, on the basis of such examination, conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
the Audit Program for Mortgages serviced for Xxxxxx Xxx and Xxxxxxx Mac, such
servicing has been conducted in compliance with such pooling and servicing
agreements except for such significant exceptions or errors in records that, in
the opinion of such firm, the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages serviced for Xxxxxx Mae and Xxxxxxx
Mac requires it to report. Copies of such statement shall be provided by the
Trustee to any Certificateholder upon request at the Master Servicer's expense,
provided such statement is delivered by the Master Servicer to the Trustee.
Section 3.23 Errors and Omissions Insurance; Fidelity Bonds. The
Master Servicer shall for so long as it acts as Master Servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of insurance
covering errors and omissions in the performance of its obligations as Master
Servicer hereunder and (b) a fidelity bond in respect of its officers, employees
and agents. Each such policy or policies shall be in such form and such amount
generally acceptable for entities serving as master servicer. In the event that
any such policy or bond ceases to be in effect, the Master Servicer shall obtain
a comparable replacement policy or bond from an insurer or issuer, meeting the
requirements set forth above as of the date of such replacement.
Section 3.24 Master Servicer to Remit Prepayment Penalties to the
Transferor. On or prior to each Distribution Account Deposit Date, the Master
Servicer shall withdraw any amounts in the Collection Account attributable to
prepayment penalties deposited therein by any Servicer, and remit by wire
transfer of immediately available funds such amounts to the Transferor in
accordance with the instructions of the Transferor.
ARTICLE IV
DISTRIBUTIONS AND SERVICING ADVANCES
Section 4.01 Advances. The Master Servicer shall deposit in the
Distribution Account not later than the Distribution Account Deposit Date
immediately preceding the related Distribution Date an Advance in an amount
equal to the difference between (x) with respect to each Scheduled Payment due
on a Mortgage Loan that is delinquent (other than as a result of a Relief Act
Reduction) and for which the related Servicer was required to make an Advance
pursuant to the related Servicing Agreement and (y) amounts deposited in the
Collection Account (or, in the case of WMMSC, amounts deposited in the
Distribution Account) to be used for Advances with respect to such Mortgage
Loan, except to the extent the Master Servicer determines any such Advance to be
a Nonrecoverable Advance. Subject to the foregoing, the Master Servicer shall
continue to make such Advances for so long as the related Servicer is required
to do so under the related Servicing Agreement. If applicable, on the
Distribution Account Deposit Date, the Master Servicer shall deliver an
Officer's Certificate to the Trustee stating that the Master Servicer elects not
to make an Advance in a stated amount and detailing the reason(s) it deems the
Advance to be a Nonrecoverable Advance. Any amounts deposited by the Master
Servicer pursuant to this Section 4.01 shall be net of the Servicing Fee, for
the related Mortgage Loans.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Trustee shall withdraw the Group 1 Available Funds, the Group 2
Available Funds and the Group 3 Available Funds (to the extent on deposit in the
Distribution Account) from the Distribution Account and, pursuant to written
instruction received from the Master Servicer as set forth in Section 4.04(a),
upon which it may conclusively rely, apply such funds, first to distributions in
respect of the Lower-Tier REMIC Regular Interests, as provided in Section
4.02(f), and then to distributions on the Certificates in the following order
and priority and, in each case, to the extent of Group 1 Available Funds, Group
2 Available Funds and Group 3 Available Funds, subject to adjustment in
accordance with Section 4.02(e):
(i) With respect to the Group 1 Certificates from the Group 1
Available Funds; with respect to the Group 2 Certificates from the Group 2
Available Funds; with respect to the Group 3 Certificates from the Group 3
Available Funds as follows:
first, concurrently,
(A) to each Class of Group 1 Certificates, pro rata, an amount
allocable to interest equal to the related Accrued Certificate
Interest;
(B) to the Class of Group 2 Certificates, an amount allocable
to interest equal to the related Accrued Certificate Interest; and
(C) to each Class of Group 3 Certificates, an amount allocable
to interest equal to the related Accrued Certificate Interest;
in each case ((A), (B) and (C) of this paragraph), any shortfall shall be
allocated among such Classes in proportion to the amount of the Accrued
Certificate Interest that would have been distributed in the absence of
such shortfall; and
second, concurrently,
(A) to the extent of remaining Group 1 Available Funds,
sequentially, to the Class A-R Certificates (in respect of the Class
A-UR Interest) and Class 1-A-1 Certificates, in that order, up to
the amount of the Senior Optimal Principal Amount for Loan Group 1
for such Distribution Date, until the Class Principal Balance of
each such Class has been reduced to zero;
(B) to the extent of remaining Group 2 Available Funds, to the
Class 2-A-1 Certificates, up to the amount of the Senior Optimal
Principal Amount for Loan Group 2 for such Distribution Date, until
the Class Principal Balance of such Class has been reduced to zero;
and
(C) to the extent of remaining Group 3 Available Funds, to the
Class 3-A-1 Certificates, up to the amount of the Senior Optimal
Principal Amount for Loan Group 3 for such Distribution Date, until
the Class Principal Balance of each Class has been reduced to zero;
(ii) to the Subordinate Certificates, subject to Section 4.02(e), in
the following order of priority:
(A) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-1 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-1 Certificates
for that Distribution Date and (2) the Class B-1 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(B) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-2 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-2 Certificates
for that Distribution Date and (2) the Class B-2 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(C) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-3 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-3 Certificates
for that Distribution Date and (2) the Class B-3 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(D) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-4 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-4 Certificates
for that Distribution Date and (2) the Class B-4 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(E) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-5 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-5 Certificates
for that Distribution Date and (2) the Class B-5 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(F) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-6 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-6 Certificates
for that Distribution Date and (2) the Class B-6 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero; and
(G) eighth, to the Class A-R Certificates, in respect of the
Class A-LR Interest and Class A-UR Interest any remaining portion
(which is expected to be zero) of the Available Funds in the
Lower-Tier REMIC and the Upper-Tier REMIC, respectively, for that
Distribution Date.
Pro rata distributions of principal among Classes of Certificates are required
to be made in proportion to the then current Certificate Principal Balance of
the applicable Classes.
(b) [Reserved].
(c) On each Distribution Date, the amount referred to in clause (i)
of the definition of Accrued Certificate Interest for each Class of Senior
Certificates and Subordinate Certificates for such Distribution Date shall be
reduced by (i) the related Class' pro rata share of Net Prepayment Interest
Shortfalls with respect to the Mortgage Loans in the related Loan Group or Loan
Groups, based on such Class' Accrued Certificate Interest for such Distribution
Date without taking into account such Net Prepayment Interest Shortfalls and
(ii) the related Class' Pro Rata Share of (A) after the related Special Hazard
Coverage Termination Date, with respect to each Mortgage Loan in the related
Loan Group or Loan Groups, that became a Special Hazard Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the excess of one
month's interest at the related Net Mortgage Rate on the Scheduled Principal
Balance of such Mortgage Loan as of the Due Date in such month over the amount
of Liquidation Proceeds applied as interest on such Mortgage Loan with respect
to such month, (B) after the Bankruptcy Coverage Termination Date, with respect
to each Mortgage Loan in the related Loan Group or Loan Groups that became
subject to a Bankruptcy Loss during the calendar month preceding the month of
such Distribution Date, the interest portion of the related Deficient Valuation,
(C) each Relief Act Reduction incurred on a Mortgage Loan in the related Loan
Group or Loan Groups, during the calendar month preceding the month of such
Distribution Date and (D) after the Fraud Loss Coverage Termination Date with
respect to each Mortgage Loan in the related Loan Group or Loan Groups that
became a Fraud Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the related Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan as of the
Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month; and
(d) Notwithstanding the priority and allocation contained in Section
4.02(a)(ii)(A) through (F), if with respect to any Class of Subordinate
Certificates on any Distribution Date, (I) such Class has not satisfied the
related Class Prepayment Distribution Trigger, no distribution of amounts
pursuant to clauses (ii) and (iii) of the definition of Subordinate Optimal
Principal Amount will be made to any such Classes (the "Restricted Classes") and
the amount of such amounts pursuant to clauses (ii) and (iii) of the definition
of Subordinate Optimal Principal Amount otherwise distributable to the
Restricted Classes shall be distributed to any Classes of Subordinate
Certificates, which are not Restricted Classes, having lower numerical Class
designations than such Class, pro rata, based on their respective Class
Principal Balances immediately prior to such Distribution Date and shall be
distributed in the sequential order provided in Section 4.02(a)(ii)(A) through
(F); provided, however, that, if all of the Subordinate Certificates are
Restricted Classes, then such amounts shall be distributed to the most senior
Class of Subordinate Certificates outstanding and (II) such Class has not
satisfied the Subordinate Certificates Fractional Interest Test, the Classes of
Subordinate Certificates that have higher numerical designations shall receive,
in respect of clauses (ii) and (iii) of the definition of Subordinate Optimal
Principal Amount, an amount equal to the product of (i) their pro rata shares
(based on the Certificate Principal Balances of all Subordinate Certificates
that are entitled to receive principal distributions on such date) and (ii) the
percentages set forth in the following table:
Distribution Date occurring in Percentage
--------------------------------------------------------------- ------------
October 2003 through September 2010 ........................... 0%
October 2010 through September 2011 ........................... 30%
October 2011 through September 2012 ........................... 40%
October 2012 through September 2013 ........................... 60%
October 2013 through September 2014 ........................... 80%
After September 2014........................................... 100%
Each Class of Subordinate Certificates that received a full pro rata
share as described above will be allocated any remaining amount in respect of
clauses (5) and (6) of the definition of Subordinate Optimal Principal Amount,
pro rata (based on the Certificate Principal Balances of only those Subordinate
Certificates that received a full pro rata share). The calculation of any amount
to be distributed under this Section 4.02(d) shall be made by the Master
Servicer.
(e) On each Distribution Date, after application of Group Available
Funds for each Loan Group in accordance with Section 4.02(a)(i), the Trustee
shall effect cross-collateralization among the Certificate Groups as follows:
(i) To the extent any Accrued Certificate Interest with respect to
any Class or Classes of Senior Certificates remains unpaid after
application of Group 1 Available Funds, Group 2 Available Funds and Group
3 Available Funds in accordance with Section 4.02(a)(i), Available Funds
remaining after payments on the Senior Certificates shall be applied to
cover such unpaid Accrued Certificate Interest, and shall be applied pro
rata based on the amounts of such unpaid Accrued Certificate Interest to
the extent there are insufficient funds to pay such amounts in full. Such
amounts shall otherwise be paid to the Senior Certificates in accordance
with the priorities set forth in Section 4.02(a)(i).
(ii) If on any Distribution Date, one or more of the Certificate
Groups is an Undercollateralized Group, the available Subordinate
Principal Distribution Amount (after giving effect to amounts required to
be paid in subclause (i) above) shall be paid to the Senior Certificates
of each such Undercollateralized Group as principal in accordance with the
priorities set forth in Section 4.02(a)(i) until the aggregate Class
Principal Balance of the Senior Certificates of each such
Undercollateralized Group(s) equals the Pool Balance of the related Loan
Group. If more than one such Certificate Group is an Undercollateralized
Group, the available Subordinate Principal Distribution Amount shall be
distributed between such Undercollateralized Groups pro rata according to
the Pool Principal Balance of the related Loan Group.
(iii) On or after the date on which the Class Principal Balances of
all of the Senior Certificates in any of the Certificate Groups have been
reduced to zero, amounts otherwise distributable as principal on the
Subordinate Certificates, up to the applicable Apportioned Subordinate
Principal Distribution Amount, shall be paid pro rata as principal to the
remaining Senior Certificates of such other Certificate Group or Groups in
accordance with the priorities set forth in Section 4.02(a)(i), provided
that on such Distribution Date (a) the Aggregate Subordinate Percentage
for such Distribution Date is less than twice the initial Aggregate
Subordinate Percentage or (b) the average outstanding principal balance of
the Mortgage Loans in any Loan Group delinquent 60 days or more over the
last six months (including delinquent Mortgage Loans in bankruptcy, and
all Mortgage Loans in foreclosure and REO Properties) as a percentage of
the related Group Subordinate Amount is greater than or equal to 50%.
(iv) Any application of the Subordinate Principal Distribution
Amount for the Subordinate Certificates pursuant to the preceding
paragraphs (ii) and (iii) will reduce distributions of such amount in
reverse order of priority pursuant to the priorities set forth in Section
4.02(a)(ii)(A) through (F).
(f) On each Distribution Date, prior to distributions on the
Certificates as provided in Section 4.02(a)-(e), (i) Group 1 Available Funds
(other than amounts paid to the Class A-R Certificates pursuant to Section
4.02(a)(i)) shall be deemed distributed to the Class L-1B Interest and Class
L-1Q Interest, (ii) Group 2 Available Funds shall be deemed distributed to the
Class L-2B Interest and Class L-2Q Interest and (iii) Group 3 Available Funds
shall be deemed distributed to the Class L-3B Interest and Class L-3Q Interest,
in each case, with respect to interest, at the related pass through rate
described in Section 2.07, and with respect to principal in the amounts
described in this Section 4.02(f).
Distributions of principal shall be made, and Realized Losses, Fraud
Losses, Bankruptcy Losses, Special Hazard Losses, Deficient Valuations and
Excess Losses shall be allocated:
(i) first, to the Class L-1B Interest, Class L-2B Interest and Class
L-3B Interest, each from the Related Loan Group, so that their respective
principal balances (computed to at least eight decimal places) are equal
to (A) 0.10% of the Group 0 Xxxxxxxxxxx Xxxxxx, (X) 0.10% of the Group 2
Subordinate Amount and (C) 0.10% of the Group 3 Subordinate Amount,
respectively (except that if any such amount is a larger number than in
the preceding distribution period, the least amount of principal shall be
distributed or losses shall be allocated to the Class L-1B Interest, Class
L-2B Interest and Class L-3B Interest, as applicable, such that the
Lower-Tier Subordinated Balance Ratio is maintained); and
(ii) second, any remaining amounts of principal shall be distributed
and losses shall be allocated from the Related Loan Group, to the Class
L-1Q Interest, Class L-2Q Interest and Class L-3Q Interest, respectively.
Section 4.03 Allocation of Realized Losses. (a) On or prior to each
Distribution Date, the Master Servicer shall determine the total amount of
Realized Losses, including Excess Losses and the allocation of such total amount
as set forth below. Realized Losses occurring on the Mortgage Loans shall be
allocated as follows:
(i) (A) any Realized Loss (other than an Excess Loss) shall be
allocated first to the Subordinate Certificates in reverse order of their
respective numerical Class designations (beginning with the Class of
Subordinate Certificates then outstanding with the highest numerical Class
designation) until the respective Class Principal Balance of each such
Class is reduced to zero and second (1) with respect to such losses
occurring with respect to Group 1 Mortgage Loans, to the Classes of Group
1 Certificates, pro rata on the basis of their respective Class Principal
Balances immediately prior to the related Distribution Date until the
Class Principal Balance of each such Class has been reduced to zero; (2)
with respect to such losses occurring with respect to Group 2 Mortgage
Loans, to the Group 2 Certificates; and (3) with respect to such losses
occurring with respect to Group 3 Mortgage Loans, to the Group 3
Certificates; and
(B) any Excess Losses occurring on the Mortgage Loans shall be
allocated among (1) the Group 1 Certificates, in the case of an Excess
Loss on a Group 1 Mortgage Loan, the Group 2 Certificates, in the case of
an Excess Loss on a Group 2 Mortgage Loan and the Group 3 Certificates, in
the case of an Excess Loss on a Group 3 Mortgage Loan and (2) each Class
of Subordinate Certificates, pro rata, based upon their respective Class
Principal Balances (or, in the case of the Subordinate Certificates in the
aggregate, the Group Subordinate Amount for the Loan Group which incurred
the Excess Loss, the aggregate amount so allocated to the Subordinate
Certificates then to be allocated among the Subordinate Certificates pro
rata based on their respective Class Principal Balances) after giving
effect to distributions of principal on such Distribution Date.
(b) The Class Principal Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class designation shall
be reduced on each Distribution Date by the amount, if any, by which the
aggregate of the Class Principal Balances of all outstanding Classes of
Certificates (after giving effect to the distribution of principal and the
allocation of Realized Losses on such Distribution Date) exceeds the Pool
Principal Balance for the following Distribution Date.
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant to
Section 4.03(a) above shall be allocated among the Certificates of such Class in
proportion to their respective Certificate Principal Balances.
(d) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Principal Balance of a Certificate, pursuant to
Section 4.03(a) above shall be accomplished by reducing the Certificate
Principal Balance thereof, as applicable, immediately following the
distributions made on the related Distribution Date in accordance with the
definition of "Certificate Principal Balance" herein; provided that no Realized
Loss shall be allocated to reduce the Certificate Principal Balance of a
Certificate to the extent that such allocation would reduce the aggregate
Certificate Principal Balance of all of the Certificates to an amount less than
the Pool Principal Balance for the following Distribution Date of all
outstanding Mortgage Loans in the aggregate, less any related Deficiency
Valuations occurring before the related Bankruptcy Loss Coverage Termination
Date (such limitation, a "Loss Allocation Limitation").
Section 4.04 Distribution Date Statements to Certificateholders. (a)
Not later than two Business Days prior to each Distribution Date, the Master
Servicer shall prepare and make available to the Trustee and not later than each
Distribution Date, the Master Servicer shall make available to each
Certificateholder, the Depositor and any other interested parties a statement
based in part on information provided by each Servicer setting forth the
following information with respect to the related distribution (in the case of
information furnished pursuant to (i), (ii) and (vii) below, the amounts shall
be expressed as a dollar amount per minimum denomination Certificate, such
minimum denominations being as set forth in the Preliminary Statement):
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any unpaid Class
Interest Shortfall included in such distribution and any remaining unpaid
Class Interest Shortfall after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Certificate Principal Balance as a dollar amount per
minimum denomination Certificate and the Class Principal Balance of each
Class of Certificates, after giving effect to the distribution of
principal on such Distribution Date;
(v) the Group Pool Principal Balance for each Loan Group on such
Distribution Date;
(vi) the Senior Percentage and Subordinate Percentage;
(vii) the amount of the Servicing Fees with respect to such
Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure) (1) 1 to 30 days
(2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days and (B) in
foreclosure and delinquent (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90
days and (4) 91 or more days, as of the close of business on the last day
of the calendar month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Scheduled
Principal Balance of such Mortgage Loan as of the close of business on the
last Business Day of the calendar month preceding such Distribution Date
and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the calendar month preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month; and
(xv) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as
of the related Determination Date.
(b) The Master Servicer's responsibility for disbursing the above
information to the Trustee, Depositor, Certificateholders and other interested
parties is limited to the availability, timeliness and the accuracy of the
information provided by each Servicer. The Master Servicer and, to the extent
received by the Trustee, the Trustee will make a copy of each statement provided
pursuant to this Section 4.04 (and, at the option of the Master Servicer and
Trustee, as applicable, any additional files containing the same information in
an alternative format) available each month to Certificateholders and other
interested parties, and other parties to this Agreement via its internet
website. The Master Servicer's internet website will initially be located at
"xxx.xxxxxxx.xxx." The Trustee's internet website will initially be located at
"xxx.xxxxxxxx.xxx/xxx." Assistance in using the Master Servicer's website can be
obtained by calling the Master Servicer's customer service desk at (301)
815-6600. Assistance in using the Trustee's website can be obtained by calling
the Trustee's customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution method are entitled to have a paper copy mailed to
them via first class mail by calling the Master Servicer's customer service desk
and indicating such. The Master Servicer shall have the right to change the way
the Distribution Date Statement is distributed in order to make such
distribution more convenient and more accessible and the Master Servicer shall
provide timely and adequate notification to the Certificateholders and the
parties to this Agreement regarding any such changes.
The Master Servicer shall also be entitled to rely on but shall not
be responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
As a condition to access the Master Servicer's or the Trustee's
internet website, the Master Servicer or Trustee, as applicable, may require
registration and the acceptance of a disclaimer. The Master Servicer will not be
liable for the dissemination of information in accordance with this Agreement.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished upon request to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(i), (a)(ii) and
(a)(vii) of this Section 4.04 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 in effect.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto in Exhibit A. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
Subject to Section 9.02 hereof respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if such Holder has
so notified the Trustee in writing at least five Business Days prior to the
related Record Date or (y) by check mailed by first class mail to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless authenticated by the Trustee by manual signature, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their authentication. On the Closing
Date, the Trustee shall authenticate the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06 hereof, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and 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. Upon surrender for
registration of transfer of any Certificate, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. 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 registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but 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 may be required by the
Trustee.
All Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee (other than the Depositor or an
affiliate of the Depositor) shall each certify to the Trustee in writing the
facts surrounding the transfer in substantially the forms set forth in Exhibit I
(the "Transferor Certificate") and (i) deliver a letter in substantially the
form of either Exhibit J (the "Investment Letter") or Exhibit K (the "Rule 144A
Letter") or (ii) there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel addressed to the Trustee that such transfer may
be made pursuant to an exemption from the Securities Act. The Depositor shall
provide to any Holder of a Private Certificate and any prospective transferee
designated by any such Holder, information regarding the related Certificates
and the Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer
of any such Certificate without registration thereof under the Securities Act
pursuant to the registration exemption provided by Rule 144A. The Trustee and
the Master Servicer shall cooperate with the Depositor, in accordance with the
Depositor's request, in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor, to the extent in its
possession, such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor, and the Master 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 an ERISA-Restricted Certificate shall be made (other
than to the Depositor or an affiliate of the Depositor) unless the Trustee shall
have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(in the event such Certificate is a Private Certificate, such requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit J or Exhibit K), to the effect
that such transferee is not an employee benefit plan or arrangement subject to
Section 406 of ERISA or a plan or arrangement subject to Section 4975 of the
Code, or a plan or arrangement subject to any federal, state or local law
("Similar Law") materially similar to the foregoing provisions of ERISA or the
Code, nor a person acting on behalf of any such plan or arrangement, nor using
the assets of any such plan or arrangement to effect such transfer, (ii) in the
case of an ERISA-Restricted Certificate other than a Residual Certificate, if
the purchaser is an insurance company, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under PTCE 95-60 or (iii)
in the case of any ERISA-Restricted Certificate other than a Residual
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
or a plan or arrangement subject to Similar Law (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of either the Trustee or the Trust Fund,
addressed to the Trustee to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code or similar provisions of Similar Law and will
not subject the Trustee to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Private
Certificate, in the event the representation letter referred to in the preceding
sentence is not so furnished, such representation shall be deemed to have been
made to the Trustee by the transferee's (including an initial acquirer's)
acceptance of the ERISA-Restricted Certificates. Notwithstanding anything else
to the contrary herein, (a) any purported transfer of an ERISA-Restricted
Certificate, other than a Residual Certificate, to or on behalf of an employee
benefit plan subject to ERISA, the Code or Similar Law without the delivery to
the Trustee of an Opinion of Counsel satisfactory to the Trustee as described
above shall be void and of no effect and (b) any purported transfer of a
Residual Certificate to a transferee that does not make the representation in
clause (i) above shall be void and of no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
Neither the Trustee, nor the Master Servicer shall be required to
monitor, determine or inquire as to the compliance with the transfer
restrictions with respect to any ERISA Restricted Certificate that is a
Book-Entry Certificate, and neither the Trustee, nor the Master Servicer shall
have any liability for transfers of any such Book-Entry Certificates made
through the book-entry facilities of any Depository or between or among
participants of the Depository or Certificate Owners made in violation of the
transfer restrictions set forth herein.
(c) 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
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) 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.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee (other than the Depositor of an affiliate thereof) in the form
attached hereto as Exhibit H.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
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 Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Residual Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee described in clauses (i) through (iv) of
the definition thereof.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel addressed to
the Trustee and the Master Servicer, which Opinion of Counsel shall not be an
expense of the Trust Fund, the Trustee, the Transferor or the Master Servicer,
to the effect that the elimination of such restrictions will not cause either
REMIC hereunder to fail to qualify as a REMIC at any time that the Certificates
are outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment of
this Agreement which, based on an Opinion of Counsel addressed to the Trustee,
is reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Residual Certificate which is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer 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.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing, qualified or able to properly
discharge its responsibilities as Depository, and (ii) the Depositor is unable
to locate a qualified successor, (y) the Depositor notifies the Trustee that it
elects to terminate the book-entry system through the Depository or (z) after
the occurrence of a Master Servicer Event of Termination, Certificate Owners
representing at least 51% of the Certificate Principal Balance of the Book-Entry
Certificates together advise the Trustee and the Depository through the
Depository Participants 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, upon receipt of notice of such event, shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the "
Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Master Servicer,
the Depositor nor the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. 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; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) 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 (b) there is delivered to the Master Servicer and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, 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 like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, 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
5.03 shall constitute complete and indefeasible evidence of ownership, 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 Master Servicer, the Trustee
and any agent of the Master Servicer or the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and none of the Master Servicer, the Trustee nor any
agent of the Master Servicer or the Trustee shall be affected by any notice to
the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Master Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee, if any. The Depositor
and every Certificateholder, by receiving and holding a Certificate, agree that
the Trustee shall not be held accountable by reason of the disclosure of any
such information as to the list of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. Certificates may be
surrendered for registration of transfer or exchange at the Corporate Trust
Office. The Trustee will give prompt written notice to the Certificateholders of
any change in such location of any such office or agency.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Depositor, the Master
Servicer and the Custodians. The Depositor, the Master Servicer and the
Custodians shall each be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by them
herein.
Section 6.02 Merger or Consolidation of the Depositor, the Master
Servicer and the Custodians. The Depositor, the Master Servicer and the
Custodians will each keep in full effect its existence, rights and franchises as
a corporation or limited partnership, as the case may be, under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation or
legal entity, as the case may be, in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor, the Master Servicer or either
Custodian may be merged or consolidated, or any Person resulting from any merger
or consolidation to which the Depositor, the Master Servicer or either Custodian
shall be a party, or any person succeeding to the business of the Depositor, the
Master Servicer or either Custodian, shall be the successor of the Depositor,
the Master Servicer or either Custodian, 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 Master Servicer shall be
qualified to service mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac.
Section 6.03 Limitation on Liability of the Depositor, the
Transferor, the Master Servicer, the Custodians and Others. None of the
Depositor, the Transferor, the Master Servicer, the Custodians or any of the
directors, officers, employees or agents of the Depositor, the Transferor or the
Master Servicer or the Custodians shall be under any liability to the Trust 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 Transferor, the Master
Servicer, the Custodians or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor, the
Transferor, the Master Servicer, the Custodians or any such Person from any
liability which would otherwise be imposed by reasons of willful misfeasance,
bad faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Depositor, the Transferor,
the Master Servicer, the Custodians and any director, officer, employee or agent
of the Depositor, the Transferor, the Master Servicer or either Custodian, the
Custodians may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Transferor, the Master Servicer, the Custodians
and any director, officer, employee or agent of the Depositor, the Transferor,
the Master Servicer or either Custodian shall be indemnified by the Trust Fund
and held harmless against any loss, liability or expense incurred in connection
with (i) any audit, controversy or judicial proceeding relating to a
governmental taxing authority, (ii) the performance of its duties and
obligations and the exercise of its rights under this Agreement or the
Certificates which constitute "unanticipated expenses incurred by the REMIC"
within the meaning of the REMIC Provisions, or (iii) any legal action relating
to this Agreement or the Certificates, other than any loss, liability or expense
related to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and 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. None of the
Depositor, the Transferor, the Master Servicer and the Custodians shall be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that any of the
Depositor, the Transferor, the Master Servicer or either Custodian may in its
discretion undertake any such action that it may deem necessary or desirable in
respect of this Agreement and the rights and duties of the parties hereto and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Transferor, the Custodians and the Master Servicer shall be
entitled to be reimbursed therefor out of the Collection Account.
Section 6.04 Limitation on Resignation of Master Servicer. The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (a) upon appointment of a successor master servicer and receipt by
the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading of the rating of any of the
Certificates, (b) upon determination that its duties hereunder are no longer
permissible under applicable law or (c) pursuant to Section 6.05. Any such
determination under clause (b) permitting the resignation of the Master Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee or a
successor master servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities and obligations hereunder.
Section 6.05 Sale and Assignment of Master Servicing Rights. The
Master Servicer may sell, assign or delegate its rights, duties and obligations
as Master Servicer under this Agreement in their entirety; provided, however,
that: (i) the purchaser or transferee accepting such sale, assignment and
delegation (a) shall be a Person qualified to servicing mortgage loans for
Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net worth of not less than
$50,000,000 (unless otherwise approved by each Rating Agency pursuant to clause
(ii) below); (c) shall be reasonably satisfactory to the Trustee (as evidenced
in a writing signed by Trustee); and (d) shall execute and deliver to the
Trustee an agreement, in form and substance reasonably satisfactory to the
Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by it as master servicer under this Agreement from and after the
effective date of such assumption agreement; (ii) each Rating Agency shall be
given prior written notice of the identity of the proposed successor to the
Master Servicer and shall confirm in writing to the Master Servicer and the
Trustee that any such sale, assignment or delegation would not result in a
withdrawal or a downgrading of the rating on any Class of Certificates in effect
immediately prior to such sale, assignment; and (iii) the Master Servicer shall
deliver to the Trustee an Officer's Certificate and an Opinion of Independent
Counsel, each stating that all conditions precedent to such action under this
Agreement have been fulfilled and such action is permitted by and complies with
the terms of this Agreement. No such sale, assignment or delegation shall affect
any liability of the Master Servicer arising prior to the effective date
thereof.
Section 6.06 Fees of the Custodians. Each of the Custodians shall be
compensated as separately agreed in writing with the Master Servicer.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Master Servicer Event of
Termination," wherever used herein, means any one of the following events:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure 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 Master
Servicer; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Certificateholders, and such failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure, properly requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee by the holders of Certificates evidencing Voting Rights
aggregating not less than 25% of the Certificates; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and
in effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or substantially all of its property; or
the Master Servicer admits in writing its inability to pay its debts
generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for
the benefit of its creditors, or voluntarily suspends payment of its
obligations; or
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Section 6.04.
In each and every such case, so long as such Master Servicer Event
of Termination with respect to the Master Servicer shall not have been remedied,
the Trustee may, and at the direction of the Holders of Certificates evidencing
Voting Rights aggregating not less than 25% of the Certificates shall, in each
case, by notice in writing to the Master Servicer (and to the Trustee if given
by such Certificateholders), with a copy to the Rating Agencies, may terminate
all of the rights and obligations (but not the liabilities accruing prior to the
date of termination) of the Master Servicer under this Agreement and in and to
the Mortgage Loans and the REO Property serviced by the Master Servicer and the
proceeds thereof. Upon the receipt by the Master Servicer of such written
notice, all authority and power of the Master Servicer under this Agreement,
whether with respect to the Certificates, the Mortgage Loans, the Servicing
Agreements, REO Property or under any other related agreements (but only to the
extent that such other agreements relate to the Mortgage Loans or related REO
Property) shall, subject to Section 7.02, automatically and without further
action pass to and be vested in the Trustee pursuant to this Section 7.01; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's rights and obligations hereunder, including, without limitation, the
transfer to the Trustee of (i) the Mortgage Files and all other property and
amounts which are then or should be part of the Trust or which thereafter become
part of the Trust; and (ii) originals or copies of all documents of the Master
Servicer reasonably requested by the Trustee to enable it to assume the Master
Servicer's duties thereunder. In addition to any other amounts which are then,
or, notwithstanding the termination of its activities under this Agreement, may
become payable to the Master Servicer under this Agreement, the Master Servicer
shall be entitled to receive, out of any amount received on account of a
Mortgage Loan or related REO Property, that portion of such payments which it
would have received as reimbursement under this Agreement if notice of
termination had not been given. The termination of the rights and obligations of
the Master Servicer shall not affect any obligations incurred by the Master
Servicer prior to such termination.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of any
late collection of a Scheduled Payment on a Mortgage Loan which was due prior to
the notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3.10(a)(i)
through (viii), and (x) and any other amounts payable to such Master Servicer
hereunder the entitlement to which arose prior to the termination of its
activities hereunder.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer receives a notice of termination pursuant to
Section 7.01 hereof, the Trustee shall, subject to and to the extent provided in
Section 3.05, be the successor to the Master Servicer in its capacity as Master
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof and applicable law including the obligation to make
Advances pursuant to Section 4.01. As compensation therefor, the Trustee shall
be entitled to all compensation to which the Master Servicer would have been
entitled hereunder if the Master Servicer had continued to act hereunder.
Notwithstanding the foregoing, if the Trustee has become the successor to the
Master Servicer in accordance with Section 7.01 hereof, the Trustee may, if it
shall be unwilling to so act, or shall, if it is prohibited by applicable law
from making Advances pursuant to Section 4.01 hereof or if it is otherwise
unable to so act, or if it has been requested in writing by Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by the
Certificates to do so, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder. Any successor to the Master Servicer shall be an
institution which is a Xxxxxx Mae and Xxxxxxx Mac approved seller/servicer in
good standing, which has a net worth of at least $15,000,000, and which is
willing to master service the Mortgage Loans and executes and delivers to the
Depositor and the Trustee an agreement accepting such delegation and assignment,
which contains an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer (other than
liabilities of the Master Servicer under Section 6.03 hereof incurred prior to
termination of the Master Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; and provided further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced, without regard to the guaranty provided by the Policies, as a result of
such assignment and delegation. Pending appointment of a successor to the Master
Servicer hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.05 hereof, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor master
servicer out of payments on Mortgage Loans as it and such successor master
servicer shall agree; provided, however, that no such compensation shall be in
excess of the compensation permitted the Master Servicer hereunder. The Trustee
and such successor master servicer shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither the
Trustee nor any other successor master servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
Any successor master servicer as Master Servicer shall give notice
to the Servicers of such change of master servicer and shall, during the term of
its service as master servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 3.11.
The Trustee or successor master servicer shall be entitled to be
reimbursed from the Master Servicer for all costs associated with the transfer
of master servicing from the predecessor master servicer, including, without
limitation, any costs or expenses (including but not limited to personnel time)
associated with the complete transfer of all master servicing data and the
completion, correction or manipulation of such master servicing data as may be
required by the Trustee or successor master servicer to correct any errors or
insufficiencies in the master servicing data or otherwise to enable the Trustee
or successor master servicer to master service the Mortgage Loans properly and
effectively. If the Master Servicer does not pay such reimbursement within
thirty (30) days of its receipt of an invoice therefor, such reimbursement shall
be an expense of the Trust and the Trustee shall be entitled to withdraw such
reimbursement from amounts on deposit in the Distribution Account pursuant to
Section 3.10(b)(iii); provided that the Master Servicer shall reimburse the
Trust for any such expense incurred by the Trust.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Master Servicer, the Trustee
shall give prompt written notice thereof to Certificateholders and to each
Rating Agency.
(b) Within 60 days after the occurrence of any Master Servicer Event
of Termination, the Trustee shall transmit by mail to all Certificateholders
notice of each such Master Servicer Event of Termination hereunder known to the
Trustee, unless such Master Servicer Event of Termination shall have been cured
or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE MASTER SERVICER
Section 8.01 Duties of Trustee. The Trustee, prior to the occurrence
of a Master Servicer Event of Termination and after the curing or waiver of all
Master Servicer Events of Termination that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Termination has occurred and
remains uncured or unwaived, 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, but only until such
time as a successor Master Servicer shall have been appointed hereunder.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument. If
any such instrument is found not to conform in any material respect to the
requirements of this Agreement, the Trustee shall notify the Certificateholders
of such non-conforming instrument in the event the Trustee, after so requesting,
does not receive a satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) unless a Master Servicer Event of Termination of which the
Trustee has actual knowledge shall have occurred, and be continuing, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement which it believed in good faith to be genuine and to have
been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be conclusively determined by a court of
competent jurisdiction, that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising or omitting to exercise any trust or power
conferred upon the Trustee under this Agreement;
(iv) the Trustee shall not be accountable, shall have no liability
and makes no representation as to any acts or omissions hereunder of the
Master Servicer until such time as the Trustee may be required to act as
Master Servicer pursuant to Section 7.02 and thereupon only for the acts
or omissions of the Trustee as successor Master Servicer; and
(v) the Trustee shall promptly remit to the Master Servicer any
complaint, claim, demand, notice or other document (collectively, the
"Notices") delivered to the Trustee as a consequence of the assignment of
any Mortgage Loan hereunder and relating to the servicing of the Mortgage
Loans; provided that any such Notice (i) is delivered to the Trustee at
its Corporate Trust Office; and (ii) contains information sufficient to
permit the Trustee to make a determination that the real property to which
such document related is a Mortgaged Property. The Trustee shall have no
duty hereunder with respect to any Notice it may receive or which may be
alleged to have been delivered to or served upon it unless such Notice is
delivered to it or served upon it at its Corporate Trust Office and such
Notice contains the information required pursuant to clause (ii) of the
preceding sentence.
Section 8.02 Certain Matters Affecting the Trustee. 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 believed by it to be genuine and to have
been signed or presented by the proper party or parties and the Trustee
shall have no responsibility to ascertain or confirm the genuineness of
any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) prior to the occurrence of a Master Servicer Event of
Termination and after the curing or waiver of all Master Servicer Events
of Termination which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition to
so proceeding. The reasonable expense of every such examination shall be
paid by the Master Servicer or, if paid by the Trustee, shall be
reimbursed by the Master Servicer upon demand. Nothing in this clause (iv)
shall derogate from the obligation of the Master Servicer to observe any
applicable law prohibiting disclosure of information regarding the
Mortgagors;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or
custodian appointed by the Trustee with due care;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers hereunder
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not assured
to it, and none of the provisions contained in this Agreement shall in any
event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, the Master Servicer in accordance with the terms of this Agreement;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
(viii) the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Termination until a Responsible Officer of the Trustee
obtains actual knowledge of such failure or the Trustee receives written
notice of such failure from the Master Servicer or the holders of
Certificates evidencing not less than 25% of the Voting Rights of
Certificates. In the absence of such receipt of such notice, the Trustee
may conclusively assume that there is no Master Servicer Event of
Termination; and
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which may be
incurred therein or thereby.
The Trustee shall have no duty (A) to see to any recording, filing,
or depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest, or
to see to the maintenance of any such recording or filing or depositing or to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance or (C) to see to the payment or discharge of any tax, assessment, or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Distribution Account.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Transferor, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Trustee's execution and authentication of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Master Servicer of any funds paid to the Depositor or the Master Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Depositor or the Master Servicer.
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may transact business with the parties hereto and their Affiliates with the
same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses. The Trustee shall be
compensated as separately agreed with the Master Servicer. The Trustee and any
director, officer, employee, agent or "control person" within the meaning of the
Securities Act of 1933, as amended, and the Securities Exchange of 1934, as
amended ("Control Person"), of the Trustee shall be indemnified by the Trust and
held harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal action
relating to (a) this Agreement (b) the Mortgage Loans or (c) the Certificates,
(ii) incurred in connection with the performance of any of the Trustee's duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder, (iii) incurred by reason of any action of the
Trustee taken at the direction of the Certificateholders and (iv) resulting from
any error in any tax or information return prepared by the Master Servicer,
provided that any such loss, liability or expense constitutes an "unanticipated
expense incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee hereunder. Without
limiting the foregoing, and except for any such expense, disbursement or advance
as may arise from the Trustee's negligence, bad faith or willful misconduct, or
which would not be an "unanticipated expense" within the meaning of the second
preceding sentence, the Trustee shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement with respect to: (A)
the reasonable compensation and the expenses and disbursements of its counsel
not associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant, engineer,
appraiser or other agent that is not regularly employed by the Trustee, to the
extent that the Trustee must engage such Persons to perform acts or services
hereunder and (C) printing and engraving expenses in connection with preparing
any Definitive Certificates. The Trust shall fulfill its obligations under this
paragraph from amounts on deposit from time to time in the Distribution Account.
Section 8.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a 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, subject to supervision or examination by
federal or state authority and with a credit rating of at least investment
grade. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07 hereof. The entity serving as Trustee may have normal banking and trust
relationships with the Depositor and its affiliates or the Master Servicer and
its affiliates; provided, however, that such entity cannot be an affiliate of
the Master Servicer other than the Trustee in its role as successor to the
Master Servicer.
Section 8.07 Resignation and Removal of Trustee. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor and the Master Servicer and each
Rating Agency not less than 60 days before the date specified in such notice
when, subject to Section 8.08, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 8.08 meeting the
qualifications set forth in Section 8.06. If no successor trustee meeting such
qualifications shall have been so appointed by the Depositor 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 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor or the Master Servicer
may remove the Trustee and appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee, one
copy of which shall be delivered to the Master Servicer and one copy to the
successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee 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 by the successor Trustee to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor so
appointed. Notice of any removal of the Trustee shall be given to each Rating
Agency by the Successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08 hereof.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 hereof shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee and the Master Servicer 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 Depositor, the
Master Servicer 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 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 hereof and its appointment
shall not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. 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
other entity into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation or other entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or other entity succeeding to the business of the Trustee, shall
be the successor of the Trustee hereunder, provided that such corporation or
other entity shall be eligible under the provisions of Section 8.06 hereof
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case a Master Servicer Event of
Termination shall have occurred and be continuing, the Trustee alone shall have
the power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee (as
successor master servicer) and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held liable by reason of any act
or omission of any other trustee hereunder and such appointment shall not,
and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which each REMIC election is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Master Servicer
covenants and agrees that it shall act as agent (and the Master Servicer is
hereby appointed to act as agent) on behalf of such REMIC and that in such
capacity it shall:
(a) prepare, submit to the Trustee for execution, and file, or cause
to be prepared and filed, in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit (REMIC) Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file or cause to be
prepared and filed with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to such REMIC, containing such information and at the times and in
the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby, including without limitation, the
calculation of any original issue discount using the prepayment assumption
identified in the Prospectus Supplement;
(b) apply for an Employee Identification Number from the Internal
Revenue Service via Form SS-4 or other acceptable method for such REMIC and
within thirty days of the Closing Date, furnish or cause to be furnished to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make or cause to be made elections that such assets be treated
as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee described in clauses (i)-(iv) of the definition thereof, or an agent
(including a broker, nominee or other middleman) of a non-Permitted Transferee
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(e) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status as a REMIC under the REMIC Provisions;
(f) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status;
(g) not permit the creation of any interests in such REMIC other
than the Certificates;
(h) not receive any amount representing a fee or other compensation
for services (except as otherwise permitted by this Agreement);
(i) receive any income attributable to any asset which is neither a
"qualified mortgage" nor a "permitted investment" within the meaning of the
REMIC Provisions;
(j) not receive any contributions to such REMIC after the Startup
Day that would be subject to tax under Section 860G(d) of the Code;
(k) not dispose of any assets of such REMIC at a gain if such
disposition would be a "prohibited transaction" within the meaning of Section
860F(a)(2) of the Code;
(l) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on such REMIC prior to its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Master Servicer or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Master Servicer from causing the withholding of payment of such tax, if
permitted by law, pending the outcome of such proceedings);
(m) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other Person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
and
(n) maintain records relating to such REMIC, including but not
limited to the income, expenses, assets and liabilities thereof and the adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information.
The Holder of the largest Percentage Interest of the Class A-R
Certificates shall act as "tax matters person" for each of the Upper-Tier REMIC
and the Lower-Tier REMIC within the meaning of Treasury Regulations Section
1.860F-4(d), and the Master Servicer is hereby designated as agent of such Class
A-R Certificateholder for such purpose (or if the Master Servicer is not so
permitted, such Holder shall be the tax matters person in accordance with the
REMIC Provisions). In such capacity, the Master Servicer shall, as and when
necessary and appropriate, represent the related REMIC in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year of
such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of such
REMIC, and otherwise act on behalf of such REMIC in relation to any tax matter
or controversy involving it.
In order to enable the Master Servicer to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Master Servicer within ten (10) days after the Closing Date all information or
data that the Master Servicer requests in writing and determines to be relevant
for tax purposes to the valuations and offering prices of the Certificates,
including, without limitation, the price, yield, prepayment assumption and
projected cash flows of the Certificates and the Mortgage Loans. Thereafter, the
Depositor shall provide to the Master Servicer promptly upon written request
therefor, any such additional information or data that the Master Servicer may,
from time to time, reasonably request in order to enable the Master Servicer to
perform its duties as set forth herein. The Depositor hereby indemnifies the
Master Servicer for any losses, liabilities, damages, claims or expenses of the
Master Servicer arising from any errors or miscalculations of the Master
Servicer that result from any failure of the Depositor to provide, or to cause
to be provided, accurate information or data to the Master Servicer on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of
either REMIC hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c) of
the Code, on any contribution to such REMIC after the Startup Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, if not paid as
otherwise provided for herein, such tax shall be paid by (i) the Master Servicer
or the Trustee, respectively, if any such other tax arises out of or results
from a breach by the Master Servicer or the Trustee, respectively, of any of its
obligations under this Agreement, (ii) the Transferor, if any such tax arises
out of or results from the Transferor's obligation to repurchase a Mortgage Loan
pursuant to Section 2.02 or 2.03 or (iii) in all other cases, or in the event
that the Trustee, the Master Servicer or the Transferor fails to honor its
obligations under the preceding clause (i), (ii) or (iii), any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 3.10(b).
Section 8.12 Periodic Filings. (a) With respect to each Distribution
Date, prior to the issuance of the related monthly statement to
Certificateholders pursuant to Section 4.04 (each, a "Distribution Date
Statement"), the Master Servicer shall confirm that it has received all
distribution and servicing information required to be provided to the Master
Servicer by each Servicer for inclusion in such Distribution Date Statement. In
the event the Master Servicer determines that any such information has not been
provided as required or is materially incorrect, the Master Servicer shall
immediately notify the applicable Servicer and use its reasonable best efforts
to cause the Servicer to provide or correct, as the case may be, such
information promptly (but in any event in time to permit the Master Servicer to
distribute the Distribution Date Statement at the time required in this
Agreement).
(b) Promptly upon receipt by the Master Servicer of (i) any
officer's certificate relating to any Servicer's annual compliance with the
terms of the applicable Servicing Agreement, (ii) any report of any Servicer's
independent public accountants relating to the Servicer's compliance with
servicing standards, as required under the applicable Servicing Agreement, and
(iii) any report of the Master Servicer's independent public accountants
required pursuant to Section 3.22, the Master Servicer shall review such
officer's certificate and reports. As part of the Form 10-K required to be filed
pursuant to paragraph (c) of this Section 8.12, the Master Servicer shall
include each such Servicer's annual statement of compliance (as well as any
annual statement of compliance required pursuant to Section 3.21), and each such
accountant's report, as well as a report of any significant deficiencies
relating to any Servicer's performance of its obligations under the applicable
Servicing Agreement.
(c) The Master Servicer shall reasonably cooperate with the
Depositor to enable the Trust to satisfy its reporting requirements under the
Exchange Act. The Master Servicer shall prepare on behalf of the Trust any Forms
8-K and 10-K customary for similar securities as required by the Exchange Act
and the rules and regulations promulgated thereunder, and the Master Servicer
shall sign and file (via the Securities and Exchange Commission's Electronic
Data Gathering and Retrieval System) such forms on behalf of the Trust.
(d) Each Form 8-K shall be filed by the Master Servicer within 15
days after each Distribution Date, which shall include a copy of the
Distribution Date Statement for such Distribution Date as an exhibit thereto.
Prior to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the rules and regulations promulgated thereunder), the Master
Servicer shall file a Form 10-K, in substance as required by applicable law or
applicable Securities and Exchange Commission staff's interpretations. Such Form
10-K shall include as exhibits the annual statements of compliance, the
accountant's reports and any report of significant deficiencies relating to any
Servicer's performance of its obligations under the applicable Servicing
Agreement described in paragraph (b) of this Section 8.12, in each case to the
extent they have been timely delivered to the Master Servicer. If they are not
so timely delivered, the Master Servicer shall file an amended Form 10-K
including such documents as exhibits reasonably promptly after they are
delivered to the Master Servicer. The Master Servicer shall have no liability
with respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Master Servicer's inability or failure to
obtain any information not resulting from its own negligence, bad faith or
willful misconduct. Each Form 10-K shall also include a certification in the
form attached hereto as Exhibit M or in such other form as may be required by
Rules 13a-14 and 15d-14 under the Exchange Act, as applicable, and any
directives or interpretations thereof by the Securities and Exchange Commission
(the "Certification"), which shall be signed by a Master Servicing Officer.
(e) Upon any filing with the Securities and Exchange Commission, the
Master Servicer shall promptly deliver to the Depositor a copy of any such
executed report, statement or information.
(f) Prior to January 30 of the first year in which the Master
Servicer is able to do so under applicable law, the Master Servicer shall file a
Form 15 Suspension Notification with respect to the Trust.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of All
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Transferor, the Master Servicer and the Trustee created
hereby with respect to the Trust Fund shall terminate upon the earlier of (a)
the purchase by the Master Servicer of all Mortgage Loans (and REO Properties)
remaining in the Trust Fund at the price equal to the sum of (i) 100% of the
unpaid principal balance of each Mortgage Loan (other than Mortgage Loans for
which the related Mortgaged Property has become REO Property) plus accrued and
unpaid interest thereon at the applicable Net Mortgage Rate and (ii) the lesser
of (x) the appraised value of any REO Property as determined by the higher of
two appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the unpaid principal
balance of each Mortgage Loan related to any REO Property plus accrued and
unpaid interest thereon at the applicable Net Mortgage Rate and (b) the later of
(i) the maturity or other liquidation (or any Advance with respect thereto) of
the last Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no event shall
the trusts created hereby continue beyond the earlier of (i) the expiration of
21 years from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late Ambassador of the United States to the Court of St. James's, living on
the date hereof and (ii) the Latest Possible Maturity Date. The right to
purchase all Mortgage Loans and REO Properties pursuant to clause (a) above
shall be conditioned upon the Pool Principal Balance, at the time of any such
repurchase, aggregating less than five percent (5%) of the aggregate Cut-off
Date Principal Balance of the Mortgage Loans.
Section 9.02 Final Distribution on the Certificates. If on any
Determination Date, the Master Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Account, the Master Servicer shall direct the Trustee
promptly to send a final distribution notice to each Certificateholder. If the
Master Servicer elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, at least 20 days prior to the date notice is to be mailed to the
affected Certificateholders, the Master Servicer shall notify the Depositor and
the Trustee of the date the Master Servicer intends to terminate the Trust Fund
and of the applicable repurchase price of the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and no later than the 15th day of the month next preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Master Servicer will give such notice to each Rating Agency at
the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class, in the
order set forth in Section 4.02 hereof, on the final Distribution Date, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount equal to (i) as to each Class of
Regular Certificates, the Certificate Principal Balance thereof plus accrued
interest thereon and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take reasonable steps, or may appoint an agent to take reasonable steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets of the Upper-Tier REMIC which remain subject hereto and the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Upper-Tier REMIC and the Lower-Tier REMIC, respectively, which remain
subject hereto.
Section 9.03 Additional Termination Requirements. (a) In the event
the Master Servicer exercises its purchase option as provided in Section 9.01,
the Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the Master Servicer, to the effect that the failure to comply
with the requirements of this Section 9.03 will not (i) result in the imposition
of taxes on "prohibited transactions" on the Upper-Tier REMIC or the Lower-Tier
REMIC as defined in Section 860F of the Code, or (ii) cause any such REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(i) The notice given by the Master Servicer under Section 9.02 shall
provide that such notice constitutes the adoption of a plan of complete
liquidation of the REMICs as of the date of such notice (or, if earlier,
the date on which the first such notice is mailed to Certificateholders).
The Master Servicer shall also specify such date in a statement attached
to the final tax return of each of the Upper-Tier REMIC and Lower-Tier
REMIC; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Trustee
shall sell all of the assets of the Trust Fund to the Master Servicer for
cash at the purchase price specified in Section 9.01 and shall distribute
such cash within 90 days of such adoption in the manner specified in
Section 9.02.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Transferor, the Master Servicer, the Custodians and
the Trustee without the consent of any of the Certificateholders (i) to cure any
ambiguity or mistake, (ii) to correct any defective provision herein or to
supplement any provision herein which may be inconsistent with any other
provision herein or in the Prospectus Supplement, (iii) to add to the duties of
the Depositor, the Trustee, the Transferor, the Custodians or the Master
Servicer, (iv) to add any other provisions with respect to matters or questions
arising hereunder or (v) to modify, alter, amend, add to or rescind any of the
terms or provisions contained in this Agreement; provided that any action
pursuant to clause (iv) or (v) above shall not, as evidenced by an Opinion of
Counsel addressed to the Trustee (which Opinion of Counsel shall be an expense
of the party requesting the amendment, or if the Trustee requests the amendment,
the Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificate
holders if the Person requesting the amendment obtains a letter from each Rating
Agency stating that the amendment would not result in the downgrading or
withdrawal of the respective ratings then assigned to the Certificates; it being
understood and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent a
determination only as to the credit issues affecting any such rating. The
Trustee, the Depositor, the Transferor, the Custodians and the Master Servicer
also may at any time and from time to time amend this Agreement without the
consent of the Certificateholders to modify, eliminate or add to any of its
provisions to such extent as shall be necessary or helpful to (i) maintain the
qualification of the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC under
the Code, (ii) avoid or minimize the risk of the imposition of any tax on either
REMIC pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements of
the Code, provided that the Trustee has been provided an Opinion of Counsel
addressed to the Trustee and the Master Servicer, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that such action is
necessary or helpful to, as applicable, (i) maintain such qualification, (ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply with
any such requirements of the Code.
Section 8.12 of this Agreement may also be amended by the Depositor,
the Transferor, the Master Servicer and the Trustee without the consent of any
of the Certificateholders, and without the need for any Opinions of Counsel
(other than the tax opinion described below) or Rating Agency confirmation, in
the event that new guidelines or procedures are issued by the Securities and
Exchange Commission with respect to the preparation and filing of Form 10-K and
the Certification required to be attached thereto as referenced in Section
8.12(d).
This Agreement may also be amended from time to time by the
Depositor, the Transferor, the Master Servicer, the Custodians and the Trustee
with the consent of the Holders of a Majority in Interest of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
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 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
in a manner other than as described in the preceding clause (i), without the
consent of the Holders of Certificates of such Class evidencing, as to such
Class, Percentage Interests aggregating 66% or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement (other than
pursuant to the second preceding paragraph) unless it shall have first received
an Opinion of Counsel addressed to the Trustee and the Master Servicer, which
opinion shall not be an expense of the Trustee, the Master Servicer or the Trust
Fund, to the effect that such amendment is permitted hereunder and will not
cause the imposition of any tax under the REMIC Provisions on either REMIC or
the Certificateholders or cause either of the Upper-Tier REMIC or the Lower-Tier
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 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.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel addressed to the Trustee
(which Opinion shall not be an expense of the Trustee or the Trust Fund),
satisfactory to the Trustee that (i) such amendment is permitted and is not
prohibited by this Agreement and that all requirements for amending this
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any Certificateholder
or (B) the conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
Section 10.02 Recordation of Agreement; Counterparts. This Agreement
(or an abstract hereof, if acceptable to the applicable recording office) is
subject to recordation in all appropriate public offices for real property
records in all the towns or other comparable jurisdictions in which any or all
of the Mortgaged Properties are situated, and in any other appropriate public
office or elsewhere, such recordation to be effected by the Master Servicer at
the expense of the Trust on direction by the Trustee (acting at the written
direction of a Majority in Interest of the Certificateholders), but only upon
direction accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance of the Trust Fund by the Depositor to the
Trustee be, and be construed as, an absolute sale thereof to the Trustee. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Depositor to the Trustee. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in such assets, then (i) this Agreement
shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of New York and (ii) the conveyance provided for in
this Agreement shall be deemed to be an assignment and a grant by the Depositor
to the Trustee, for the benefit of the Certificateholders, of a security
interest in all of the assets that constitute the Trust Fund, whether now owned
or hereafter acquired.
The Depositor for the benefit of the Certificateholders 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 Trust Fund, 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 the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholder.
Section 10.05 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Master Servicer Event of Termination that
has not been cured;
(iii) The resignation or termination of the Master Servicer, either
Custodian or the Trustee and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
(v) The final payment to Certificateholders.
In addition, the Master Servicer shall promptly furnish to each
Rating Agency copies of the following:
(i) Each annual statement as to compliance described in Section
3.21;
(ii) Each annual independent public accountants' servicing report
described in Section 3.22; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.02 or 2.03.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, Mortgage Asset Securitization Transactions, Inc., 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel,
(b) in the case of the Master Servicer and Xxxxx Fargo in its capacity as
Custodian, Xxxxx Fargo Bank Minnesota, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, or such other address as the Master Servicer may hereafter
furnish to each other party to this Agreement in writing, (c) in the case of the
Trustee, the Corporate Trust Office, or such other address as the Trustee may
hereafter furnish to each other party to this Agreement in writing, (d) in the
case of the Transferor, UBS Warburg Real Estate Securities Inc., 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, (e) in the
case of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency and (f) in the case of U.S.
Bank, in its capacity as a Custodian, U.S. Bank National Association, 000 Xxxx
0xx Xxxxxx, Xx. Xxxx, XX 00000, or such other address as U.S. Bank National
Association may hereafter furnish to each other party to this Agreement in
writing. Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section 10.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 6.02 and this Section 10.07,
this Agreement may not be assigned by the Master Servicer without the prior
written consent of the Trustee and Depositor. Pursuant to Section 6.05, the
Master Servicer shall be permitted to pledge its rights as servicer hereunder to
a lender, provided that no such pledge shall permit the termination of the
Master Servicer as Master Servicer unless a successor servicer meeting the
requirements of Sections 6.04 and 7.02 hereunder shall have assumed the rights
and obligations of the Master Servicer hereunder.
Section 10.08 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or 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
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party 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 or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of a Master Servicer Event of Termination and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less than
25% of the Voting Rights evidenced by the Certificates shall also have made
written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the 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 common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 10.08, each
and every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 10.09 Inspection and Audit Rights. The Master Servicer
agrees that, on reasonable prior notice, it will permit and will cause each
Servicer to permit any representative of the Depositor or the Trustee during the
Master Servicer's or Servicer's, as the case may be, normal business hours, to
examine all the books of account, records, reports and other papers of the
Master Servicer or the Servicer, as the case may be, relating to the Mortgage
Loans, to make copies and extracts therefrom, to cause such books to be audited
by independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Master Servicer or the Servicer, as the case may be,
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any out-of-pocket expense incident to the exercise
by the Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall be
borne by the Master Servicer or the related Servicer.
Section 10.10 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
[Signature Page Follows]
IN WITNESS WHEREOF, the Depositor, the Trustee, the Transferor and
the Master Servicer have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
MORTGAGE ASSET SECURITIZATION
TRANSACTIONS, INC.,
as Depositor
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate Director
By: /s/ Xxxxx XxXxxxxx
---------------------------------
Name: Xxxxx XxXxxxxx
Title: Associate Director
UBS WARBURG REAL ESTATE SECURITIES
INC.,
as Transferor
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate Director
By: /s/ Xxxxx XxXxxxxx
---------------------------------
Name: Xxxxx XxXxxxxx
Title: Associate Director
JPMORGAN CHASE BANK,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Vice President
XXXXX FARGO BANK MINNESOTA, N.A.,
as Master Servicer and Custodian
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Custodian
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of September, 2003 before me, a notary public in
and for said State, personally appeared Xxxxx Xxxxxxxx and Xxxxx XxXxxxxx known
to me to be a Associate Director and Associate Director 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 such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxx
-------------------------------------
Notary Public
[SEAL]
My commission expires:
August 25, 0000
----------------------
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF KINGS )
On the 25th day of September, 2003 before me, a notary public in
and for said State, personally appeared Xxxxxxx Xxxxxxxxx known to me to be a
Assistant Vice President of JPMorgan Chase Bank, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Notary Public
[SEAL]
My commission expires:
Oct. 2, 0000
----------------------
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of September, 2003 before me, a notary public in
and for said State, personally appeared Xxxxx Xxxxxxxx and Xxxxx XxXxxxxx known
to me to be a Associate Director and Associate Director of UBS Warburg Real
Estate Securities 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
such corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxx
-------------------------------------
Notary Public
[SEAL]
My commission expires:
August 25, 2007
----------------------
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
On the 26th day of September, 2003 before me, a notary public in
and for said State, personally appeared Xxxxx X. Xxxxxx known to me to be a Vice
President of Xxxxx Fargo Bank Minnesota, N.A., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxx
-------------------------------------
Notary Public
[SEAL]
My commission expires:
October 17, 0000
----------------------
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of September, 2003 before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxx known to me to be a Vice
President 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 such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Notary Public
[SEAL]
My commission expires:
1-31-05
----------------------------
SCHEDULE I
Mortgage Loan Schedule
SCHEDULE II
MASTR Adjustable Rate Mortgages Trust 2003-4
Mortgage Pass-Through Certificates
Series 2003-4
Representations and Warranties as to the Mortgage Loans
-------------------------------------------------------
UBS Warburg Real Estate Securities Inc. (the "Transferor") hereby
makes with respect to those Mortgage Loans sold by it to the Depositor pursuant
to the Mortgage Loan Purchase Agreement, the following representations and
warranties. Capitalized terms used but not otherwise defined in this Schedule II
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") relating to the above-referenced Series,
among the Transferor, Mortgage Asset Securitization Transactions, Inc., as
depositor, Xxxxx Fargo Bank Minnesota, N.A., as master servicer and a custodian,
U.S. Bank National Association, as a custodian, and JPMorgan Chase Bank, as
trustee.
(i) The information set forth in the Mortgage Loan Schedule was true
and correct in all material respects at the date or dates respecting which
such information is furnished as specified in the Mortgage Loan Schedule;
(ii) Immediately prior to the transfer and assignment contemplated
herein, the Transferor was the sole owner and holder of the Mortgage Loan
free and clear of any and all liens, pledges, charges or security
interests of any nature and has full right and authority to sell and
assign the same;
(iii) The Mortgage is a valid, subsisting and enforceable first lien
on the property therein described, and the Mortgaged Property is free and
clear of all encumbrances and liens having priority over the first lien of
the Mortgage except for liens for real estate taxes and special
assessments not yet due and payable and liens or interests arising under
or as a result of any federal, state or local law, regulation or ordinance
relating to hazardous wastes or hazardous substances, and, if the related
Mortgaged Property is a condominium unit, any lien for common charges
permitted by statute or homeowners association fees; and if the Mortgaged
Property consists of shares of a cooperative housing corporation, any lien
for amounts due to the cooperative housing corporation for unpaid
assessments or charges or any lien of any assignment of rents or
maintenance expenses secured by the real property owned by the cooperative
housing corporation; and any security agreement, chattel mortgage or
equivalent document related to, and delivered to the Trustee or to the
Master Servicer with, any Mortgage establishes in the Transferor a valid
and subsisting first lien on the property described therein and the
Transferor has full right to sell and assign the same to the Trustee;
(iv) Neither the Transferor nor any prior holder of the Mortgage or
the related Mortgage Note has modified the Mortgage or the related
Mortgage Note in any material respect, satisfied, canceled or subordinated
the Mortgage in whole or in part, released the Mortgaged Property in whole
or in part from the lien of the Mortgage, or executed any instrument of
release, cancellation, modification or satisfaction, except in each case
as is reflected in an agreement delivered to the Trustee or the Master
Servicer pursuant to Section 2.01;
(v) All taxes, governmental assessments, insurance premiums, and
water, sewer and municipal charges, which previously became due and owing
have been paid, or an escrow of funds has been established, to the extent
permitted by law, in an amount sufficient to pay for every such item which
remains unpaid; and the Transferor has not advanced funds, or received any
advance of funds by a party other than the Mortgagor, directly or
indirectly for the payment of any amount required by the Mortgage, except
for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the day
which precedes by thirty days the first Due Date under the related
Mortgage Note;
(vi) The Mortgaged Property is undamaged by water, fire, earthquake,
earth movement other than earthquake, windstorm, flood, tornado or similar
casualty (excluding casualty from the presence of hazardous wastes or
hazardous substances, as to which the Transferor makes no
representations), so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the
premises were intended and to the best of the Transferor's knowledge,
there is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property;
(vii) The Mortgaged Property is free and clear of all mechanics' and
materialmen's liens or liens in the nature thereof; provided, however,
that this warranty shall be deemed not to have been made at the time of
the initial issuance of the Certificates if a title policy affording, in
substance, the same protection afforded by this warranty is furnished to
the Trustee by the Transferor;
(viii) Except for Mortgage Loans secured by co op shares and
Mortgage Loans secured by residential long term leases, the Mortgaged
Property consists of a fee simple estate in real property; all of the
improvements which are included for the purpose of determining the
appraised value of the Mortgaged Property lie wholly within the boundaries
and building restriction lines of such property and no improvements on
adjoining properties encroach upon the Mortgaged Property (unless insured
against under the related title insurance policy); and to the best of the
Transferor's knowledge, the Mortgaged Property and all improvements
thereon comply with all requirements of any applicable zoning and
subdivision laws and ordinances;
(ix) The Mortgage Loan meets, or is exempt from, applicable state or
federal laws, regulations and other requirements, pertaining to usury, and
the Mortgage Loan is not usurious;
(x) To the best of the Transferor's knowledge, all inspections,
licenses and certificates required to be made or issued with respect to
all occupied portions of the Mortgaged Property and, with respect to the
use and occupancy of the same, including, but not limited to, certificates
of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities;
(xi) All payments required to be made up to but not including the
Due Date immediately preceding the Cut Off Date for such Mortgage Loan
under the terms of the related Mortgage Note have been made, and no
payment under any Mortgage Loan has been 30 days delinquent more than one
time within twelve months prior to the Closing Date;
(xii) The Mortgage Note, the related Mortgage and other agreements
executed in connection therewith are genuine, and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law); and, to the best of the Transferor's knowledge, all
parties to the Mortgage Note and the Mortgage had legal capacity to
execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage has been duly and properly executed by the Mortgagor;
(xiii) Each Mortgage Loan at the time it was 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.
(xiv) None of the mortgage loans are "High Cost" as such term is
defined in HOEPA or a reasonably equivalent provision as defined by the
applicable predatory and abusive lending laws.
(xv) The proceeds of the Mortgage Loans have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on site or off site improvements and
as to disbursements of any escrow funds therefor have been complied with
(except for escrow funds for exterior items which could not be completed
due to weather and escrow funds for the completion of swimming pools); and
all costs, fees and expenses incurred in making, closing or recording the
Mortgage Loan have been paid, except recording fees with respect to
Mortgages not recorded as of the Closing Date;
(xvi) The Mortgage Loan (except any Mortgage Loan secured by a
Mortgaged Property located in any jurisdiction, as to which an opinion of
counsel of the type customarily rendered in such jurisdiction in lieu of
title insurance is instead received) is covered by an American Land Title
Association mortgagee title insurance policy or other generally acceptable
form of policy or insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac,
issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac insuring
the originator, its successors and assigns, as to the first priority lien
of the Mortgage in the original principal amount of the Mortgage Loan and
subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage acceptable to mortgage
lending institutions in the area in which the Mortgaged Property is
located or specifically referred to in the appraisal performed in
connection with the origination of the related Mortgage Loan, (C) liens
created pursuant to any federal, state or local law, regulation or
ordinance affording liens for the costs of clean up of hazardous
substances or hazardous wastes or for other environmental protection
purposes and (D) such other matters to which like properties are commonly
subject which do not individually, or in the aggregate, materially
interfere with the benefits of the security intended to be provided by the
Mortgage; the Transferor is the sole insured of such mortgagee title
insurance policy, the assignment to the Trustee of the Transferor's
interest in such mortgagee title insurance policy does not require any
consent of or notification to the insurer which has not been obtained or
made, such mortgagee title insurance policy is in full force and effect
and will be in full force and effect and inure to the benefit of the
Trustee, no claims have been made under such mortgagee title insurance
policy, and no prior holder of the related Mortgage, including the
Transferor, has done, by act or omission, anything which would impair the
coverage of such mortgagee title insurance policy;
(xvii) The Mortgaged Property securing each Mortgage Loan is insured
by an insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire
and such hazards as are covered under a standard extended coverage
endorsement, in an amount which is not less than the lesser of 100% of the
insurable value of the Mortgaged Property and the outstanding principal
balance of the Mortgage Loan, but in no event less than the minimum amount
necessary to fully compensate for any damage or loss on a replacement cost
basis; if the Mortgaged Property is a condominium unit, it is included
under the coverage afforded by a blanket policy for the project; if upon
origination of the Mortgage Loan, the improvements on the Mortgaged
Property were in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards, a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of (A) the outstanding principal balance of the Mortgage Loan, (B)
the full insurable value of the Mortgaged Property and (C) the maximum
amount of insurance which was available under the National Flood Insurance
Act of 1968, as amended; and each Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and
expense;
(xviii) To the best of the Transferor's knowledge, no foreclosure
action is currently threatened or has been commenced with respect to the
Mortgage Loan and the Transferor has not waived any default, breach,
violation or event of acceleration;
(xix) No Mortgage Note or Mortgage is subject to any right of
rescission, set off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note or
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or Mortgage unenforceable, in whole or in part, or subject it to any
right of rescission, set off, counterclaim or defense, including the
defense of usury, and no such right of rescission, set off, counterclaim
or defense has been asserted with respect thereto;
(xx) Each Mortgage Note is payable in monthly payments, resulting in
complete amortization of the Mortgage Loan over a term of not more than
360 months;
(xxi) Each Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including realization by judicial foreclosure (subject to any
limitation arising from any bankruptcy, insolvency or other law for the
relief of debtors), and there is no homestead or other exemption available
to the Mortgagor which would interfere with such right of foreclosure;
(xxii) To the best of the Transferor's knowledge, no Mortgagor is a
debtor in any state or federal bankruptcy or insolvency proceeding;
(xxiii) Each Mortgaged Property consists of a one to four unit
residential property, which may include a detached home, townhouse,
condominium unit or a unit in a planned unit development or, in the case
of Mortgage Loans secured by co op shares, leases or occupancy agreements;
(xxiv) The Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code;
(xxv) With respect to each Mortgage where a lost note affidavit has
been delivered to the Trustee in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence;
(xxvi) In the event that the Mortgagor is an inter vivos "living"
trust, (i) such trust is in compliance with Xxxxxx Mae or Xxxxxxx Mac
standards for inter vivos trusts and (ii) holding title to the Mortgaged
Property in such trust will not diminish any rights as a creditor
including the right to full title to the Mortgaged Property in the event
foreclosure proceedings are initiated;
(xxvii) If the Mortgage Loan is secured by a long term residential
lease, (1) the lessor under the lease holds a fee simple interest in the
land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent
and the acquisition by the holder of the Mortgage of the rights of the
lessee upon foreclosure or assignment in lieu of foreclosure or provide
the holder of the Mortgage with substantially similar protections; (3) the
terms of such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled to
receive written notice of, and opportunity to cure, such default or (b)
allow the termination of the lease in the event of damage or destruction
as long as the Mortgage is in existence; (4) the term of such lease does
not terminate earlier than five years after the maturity date of the
Mortgage Note; and (5) the Mortgaged Property is located in a jurisdiction
in which the use of leasehold estates in transferring ownership in
residential properties is a widely accepted practice;
(xxviii) 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, as amended, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a
federal or state authority;
(xxix) The Mortgage Loan was underwritten in accordance with the
underwriting guidelines of the related Loan Seller in effect at the time
of origination with exceptions thereto exercised in a reasonable manner;
(xxx) The Loan Seller used no adverse selection procedures in
selecting the Mortgage Loan from among the outstanding first-lien,
residential mortgage loans owned by it which were available for sale to
the Transferor;
(xxxi) With respect to each Mortgage Loan, the Transferor is in
possession of a complete Mortgage File except for the documents which have
been delivered to the Trustee or which have been submitted for recording
and not yet returned;
(xxxii) As of the Cut-off Date, the range of original Loan-to-Value
Ratios of the Mortgage Loans is 15.09% to 95.00%, and 17 Mortgage Loans,
representing 1.42% of the Cut-off Date Pool Balance, had Loan-to-Value
Ratios at origination in excess of 80%. Each such Mortgage Loan is subject
to a Primary Insurance Policy; and
(xxxiii) With respect to each Mortgage Loan, the related Servicing
Agreement requires the related Servicer to deposit into the related
Protected Account an amount equal to all payments of principal and
interest on such Mortgage Loan that are delinquent at the close of
business on the related Determination Date and not previously advanced by
such Servicer. The obligation of such Servicer to advance such payments as
to such Mortgage Loan will continue through the final disposition or
liquidation of the Mortgaged Property, unless such Servicer deems such
advance to be nonrecoverable from liquidation proceeds, REO disposition
proceeds, condemnation proceeds or insurance proceeds with respect to such
Mortgage Loan.
EXHIBIT A-1-A-1
(FORM OF CLASS 1-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE 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, AS AMENDED (THE "CODE").
Certificate No.: 1-A-1-1
Cut-off Date: September 1, 2003
First Distribution Date: October 25, 2003
Last Scheduled Distribution Date September 25, 2033
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[____________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $[78,739,000]
of this Class:
CUSIP: 576433 EQ 5
ISIN: US576433EQ51
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
Mortgage Pass-Through Certificates, Series 2003-4
Class 1-A-1
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _______________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the Denomination of this Certificate by the aggregate initial Class Principal
Balances of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by Mortgage Asset Securitization Transactions,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, UBS Warburg Real Estate Securities Inc., as
transferor (the "Transferor"), Xxxxx Fargo Bank Minnesota, N.A., as master
servicer and a custodian (the "Servicer"), U.S. Bank National Association, as a
custodian, and JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on
this Certificate will be made primarily from collections on the applicable
Mortgage Loans pursuant to the terms of the Agreement. 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.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: September ___, 2003
JPMORGAN CHASE BANK,
as Trustee
By:____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-2-A-1
(FORM OF CLASS 2-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE 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, AS AMENDED (THE "CODE").
Certificate No.: 2-A-1-1
Cut-off Date: September 1, 2003
First Distribution Date: October 25, 2003
Last Scheduled Distribution Date October 25, 2033
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[____________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $[104,537,000]
of this Class:
CUSIP: 576433 ER 3
ISIN: US576433ER35
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
Mortgage Pass-Through Certificates, Series 2003-4
Class 2-A-1
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Servicer or the Trustee referred
to below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that ________________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the Denomination of this Certificate by the aggregate initial Class Principal
Balances of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by Mortgage Asset Securitization Transactions,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, UBS Warburg Real Estate Securities Inc., as
transferor (the "Transferor"), Xxxxx Fargo Bank Minnesota, N.A., as master
servicer and a custodian (the "Servicer"), U.S. Bank National Association, as a
custodian, and JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on
this Certificate will be made primarily from collections on the applicable
Mortgage Loans pursuant to the terms of the Agreement. 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.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: September ___, 2003
JPMORGAN CHASE BANK,
as Trustee
By:____________________________________
Countersigned:
By:__________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-3-A-1
(FORM OF CLASS 3-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE 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, AS AMENDED (THE "CODE").
Certificate No.: 3-A-1-1
Cut-off Date: September 1, 2003
First Distribution Date: October 25, 2003
Last Scheduled Distribution Date October 25, 2033
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[____________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $[181,505,000]
of this Class:
CUSIP: 576433 ES 1
ISIN: US576433ES18
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
Mortgage Pass-Through Certificates, Series 2003-4
Class 3-A-1
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Servicer or the Trustee referred
to below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that _______________________ is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the Denomination of this Certificate by the aggregate initial Class Principal
Balances of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by Mortgage Asset Securitization Transactions,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, UBS Warburg Real Estate Securities Inc., as
transferor (the "Transferor"), Xxxxx Fargo Bank Minnesota, N.A., as master
servicer and a custodian (the "Servicer"), U.S. Bank National Association, as a
custodian, and JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on
this Certificate will be made primarily from collections on the applicable
Mortgage Loans pursuant to the terms of the Agreement. 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.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: September ___, 2003
JPMORGAN CHASE BANK,
as Trustee
By:____________________________________
Countersigned:
By:__________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-A-R
(FORM OF CLASS A-R CERTIFICATE)
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). TRANSFERS OF THIS CERTIFICATE TO
ANY PERSON WHO IS NOT A PERMITTED TRANSFEREE, AS SET FORTH IN SECTION 5.02(C) OF
THE AGREEMENT IS PROHIBITED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH
ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT
("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
ATTACHED TO THE AGREEMENT.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR MATERIALLY SIMILAR PROVISIONS OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW"). NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE OR SIMILAR
LAW SHALL BE VOID AND OF NO EFFECT.
Certificate No.: A-R-1
Cut-off Date: September 1, 2003
First Distribution Date: October 25, 2003
Last Scheduled Distribution Date September 25, 2033
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[____________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $100
of this Class:
CUSIP: 576433 ET 9
ISIN: US576433ET90
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
Mortgage Pass-Through Certificates, Series 2003-4 evidencing the
distributions allocable to the Class A-R Certificates with respect
to a Trust Fund consisting primarily of conventional loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _______________________ is the registered owner
of the Percentage Interest in certain monthly distributions with respect to a
Trust Fund consisting of the Mortgage Loans deposited by Mortgage Asset
Securitization Transactions, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, UBS Warburg Real Estate
Securities Inc., as transferor (the "Transferor"), Xxxxx Fargo Bank Minnesota,
N.A., as master servicer and a custodian (the "Servicer"), U.S. Bank National
Association, as a custodian, and JPMorgan Chase Bank, as trustee (the
"Trustee"). 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.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office of the Trustee.
No transfer of a Class A-R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, Section 4975 of the Code or Similar Law, nor a
person acting on behalf of any such plan, which representation letter shall not
be an expense of the Trustee or the Servicer. Notwithstanding anything else to
the contrary herein any purported transfer of a Class A-R Certificate to or on
behalf of an employee benefit plan subject to ERISA, the Code or Similar Law
shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-R Certificate must be a Permitted Transferee,
(ii) no Ownership Interest in this Class A-R Certificate may be transferred
without delivery to the Trustee of (a) a transfer affidavit of the proposed
transferee and (b) a transfer certificate of the transferor, each of such
documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class A-R Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Trustee as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class A-R Certificate must agree not to
transfer an Ownership Interest in this Class A-R Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: September ___, 2003
JPMORGAN CHASE BANK,
as Trustee
By:____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT B
(FORM OF B-1, B-2 OR B-3 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE 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, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No.: [B-1-1] [B-2-1]
[B-3-1]
Cut-off Date: September 1, 2003
First Distribution Date: October 25, 2003
Last Scheduled Distribution Date October 25, 2033
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate B-1: $[__]
("Denomination"): B-2: $[__]
B-3: $[__]
Initial Certificate Principal Balances of all Certificates B-1: $[11,060,000]
of this Class: B-2: $[4,463,000]
B-3: $[3,298,000]
CUSIP: B-1: [576433 EU 6]
B-2: [576433 EV 4]
B-3: [576433 EW 2]
ISIN: B-1:
[US576433EU63]
B-2:
[US576433EV47]
B-3:
[US576433EW20]
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
Mortgage Pass-Through Certificates, Series 2003-4
Class [B-1] [B-2] [B-3]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _______________________ is the registered owner
of the Percentage Interest evidenced by this Certificate in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by Mortgage Asset Securitization Transactions, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, UBS Warburg Real Estate Securities Inc., as transferor (the
"Transferor"), Xxxxx Fargo Bank Minnesota, N.A., as master servicer and a
custodian (the "Servicer"), U.S. Bank National Association, as a custodian, and
JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the Mortgage Loans
pursuant to the terms of the Agreement. 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.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: September __, 2003
JPMORGAN CHASE BANK,
as Trustee
By:____________________________________
Countersigned:
By:__________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT C
(FORM OF X-0, X-0 OR B-6 CERTIFICATE)
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, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH
ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT
("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE TRANSFEREE IS AN INSURANCE
COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL
ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION
OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE
TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR VIOLATION OF SIMILAR LAW
AND WILL NOT SUBJECT THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION IN ADDITION
TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR
TO THE CODE WITHOUT THE REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID
AND OF NO EFFECT.
Certificate No.: [B-4-1] [B-5-1]
[B-6-1]
Cut-off Date: September 1, 2003
First Distribution Date: October 25, 2003
Last Scheduled Distribution Date October 25, 2033
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate B-4: $[__]
("Denomination"): B-5: $[__]
B-6: $[__]
Initial Certificate Principal Balances of all Certificates B-4: $[1,746,000]
of this Class: B-5: $[1,164,000]
B-6:
$[1,553,435.60]
CUSIP: B-4: [576433 EX 0]
B-5: [576433 EY 8]
B-6: [576433 EZ 5]
ISIN: B-4: [US576433EX03]
B-5: [US576433EY85]
B-6: [US576433EZ50]
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
Mortgage Pass-Through Certificates, Series 2003-4
Class [B-4] [B-5] [B-6]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _______________________ is the registered owner
of the Percentage Interest evidenced by this Certificate in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by Mortgage Asset Securitization Transactions, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, UBS Warburg Real Estate Securities Inc., as transferor (the
"Transferor"), Xxxxx Fargo Bank Minnesota, N.A., as master servicer and a
custodian (the "Servicer"), U.S. Bank National Association, as a custodian, and
JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the Mortgage Loans
pursuant to the terms of the Agreement. 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.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a transfer is
to be made within three years from the date of the initial issuance of
Certificates pursuant hereto, there shall also be delivered (except in the case
of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee an
Opinion of Counsel that such transfer may be made pursuant to an exemption from
the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Servicer, or the
Depositor. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation (letter) from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Title I of ERISA, Section 4975 of the Code, or
a plan subject to any federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, nor a person acting on
behalf of any such plan, which representation letter shall not be an expense of
the Trustee or the Servicer, (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the
case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, Section 4975 of the Code or Similar Law
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Servicer to the effect that the
purchase or holding of such Certificate will not result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code or similar provisions of Similar
Law and will not subject the Trustee to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense of
the Trustee or the Servicer. (Such representation shall be deemed to have been
made to the Trustee by the Transferee's acceptance of a Certificate of this
Class and by a beneficial owner's acceptance of its interest in a Certificate of
this Class.) Notwithstanding anything else to the contrary herein, any purported
transfer of a Certificate of this Class to or on behalf of an employee benefit
plan subject to ERISA, the Code or Similar Law without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no effect.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: September __, 2003
JPMORGAN CHASE BANK,
as Trustee
By:____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT D
(Reserved)
EXHIBIT E
(Form of Reverse of Certificates)
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
Mortgage Pass-Through Certificates, Series 2003-4
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Asset Securitization Transactions, Inc. MASTR Adjustable
Rate Mortgages Trust 2003-4, Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
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
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the month
of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder 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 Office of the Trustee or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Transferor, the Depositor, the Servicer and the Trustee with the consent
of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor 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 of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and 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, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, and 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 neither the
Depositor, the Servicer, the Trustee, nor any such agent shall be affected by
any notice to the contrary.
On any Distribution Date on which the Pool Principal Balance is less
than 5% of the aggregate Cut-off Date Principal Balances of the Mortgage Loans,
the Servicer will have the option to repurchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund or the disposition of all property in
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust created by the Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address
including postal zip code of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage 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 denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
Dated:
____________________________________________
Signature by or on behalf of assignor
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 _____________________.
Statements should be mailed to _________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
STATE OF )
) ss.:
COUNTY OF )
On the day of _______, 200_ before me, a notary public in and for
said State, personally appeared ___________________________________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
__________________________________
Notary Public
[Notarial Seal]
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Pooling and Servicing Agreement, dated September 1, 2003, among
Mortgage Asset Securitization Transactions, Inc., as depositor, UBS
Warburg Real Estate Securities Inc., as transferor, Xxxxx Fargo Bank
Minnesota, N.A., as master servicer and a custodian, U.S. Bank
National Association, as a custodian, and JPMorgan Chase Bank, as
trustee, in connection with MASTR Adjustable Rate Mortgages Trust
2003-4, Mortgage Pass-Through Certificates, Series 0000-0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
a Custodian acting on behalf of the Trustee, hereby certifies that, as to each
related Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan listed on the attached schedule)
it has received:
(i) (a) the original Mortgage Note or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Depositor stating that the
original Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File of any of the related Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
[NAME OF CUSTODIAN],
as Custodian
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF FINAL CERTIFICATION OF CUSTODIAN
[date]
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
UBS Warburg Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement, dated September 1, 2003, among
Mortgage Asset Securitization Transactions, Inc., as depositor, UBS
Warburg Real Estate Securities Inc., as transferor, Xxxxx Fargo Bank
Minnesota, N.A., as master servicer and a custodian, U.S. Bank
National Association, as a custodian, and JPMorgan Chase Bank, as
trustee, in connection with MASTR Adjustable Rate Mortgages Trust
2003-4, Mortgage Pass-Through Certificates, Series 0000-0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
a Custodian, acting on behalf of the Trustee, hereby certifies that as to each
related Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attached Document Exception Report)
it has received:
(i) the original Mortgage Note endorsed in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the transferor to the
Depositor.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form
provided in Section 2.01(b) of the Pooling and Servicing Agreement, or, if the
Depositor has certified or the Custodian otherwise knows that the related
Mortgage has not been returned from the applicable recording office, a copy of
the assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Depositor.
(v) The original or duplicate original lender's title policy and
all riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2), (3), (4),
(9), (16) and (21) of the definition of the "Mortgage Loan Schedule" in Section
1.01 of the Pooling and Servicing Agreement accurately reflects information set
forth in the Mortgage File.
The Custodian on behalf of 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 Custodian on
behalf of the Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
contained in each Mortgage File of any of the related Mortgage Loans identified
on the Mortgage Loan Schedule, or (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
[NAME OF CUSTODIAN],
as Custodian
By:____________________________________
Name:
Title:
EXHIBIT H
FORM OF CLASS A-R TRANSFER AFFIDAVIT
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2003-4
Mortgage Asset Securitization Transactions, Inc.
Mortgage Pass-Through Certificates
Series 2003-4
1. The undersigned is an officer of ______, the proposed Transferee
of an Ownership Interest in a Class A-R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement dated as of September 1, 2003
(the "Agreement") among Mortgage Asset Securitization Transactions, Inc., as
depositor, UBS Warburg Real Estate Securities Inc., as transferor (the
"Transferor"), Xxxxx Fargo Bank Minnesota, N.A., as master servicer (the "Master
Servicer") and as a custodian, U.S. Bank National Association, as a custodian,
and JPMorgan Chase Bank, as trustee (the "Trustee"). Capitalized terms used, but
not defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to
such terms in the Agreement. The Transferee has authorized the undersigned to
make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are
Disqualified Organizations; (ii) such tax will be imposed on the transferor, or,
if such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is a Disqualified Organization, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is not a Disqualified Organization and, at the time
of Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is a
Disqualified Organization is the record holder of an interest in such entity.
The Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is not a Disqualified Organization and the
pass-through entity does not have actual knowledge that such affidavit is false;
provided, that a pass-through entity which is an "electing large partnership"
under the Code will be subject to tax in all events. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.) The Transferee further understands that it may incur tax liabilities
with respect to the holding of the Certificate in excess of cash flows generated
thereby.
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit I to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate. The Transferee historically has paid its debts as they have
become due and intends to do so in the future. The Transferee understands that
the taxable income and tax liability with respect to this Certificate will
exceed distributions with respect to the Certificate in some or all periods and
intends to pay all taxes with respect to the Certificate as they become due.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30) or is not a U.S. Person and has furnished the Transferor and the
Trustee with a duly completed Internal Revenue Service Form W-8ECI or any
applicable successor form.
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11. The Transferee will not cause income with respect to the
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other United States Person.
12. Check one of the following paragraphs:
|_| The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
|_| The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of U.S. Treasury Regulations
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith.
|_| None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, and the Transferee is
not acting on behalf of such a plan.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors,
by its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____________ day of __________________, 200_.
_______________________________________
PRINT NAME OF TRANSFEREE
By:____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
____________________________________
[Assistant] Secretary
EXHIBIT 1
to EXHIBIT H
Certain Definitions
"Disqualified Organization": A Person specified in clauses (i)-(iv)
of the definition of "Permitted Trasnferee."
"Ownership Interest": As to any Residual Certificate, any ownership
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.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, an estate whose income is subject to United States federal income tax
purposes 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 persons described in this clause (v) have the authority to control
all substantial decisions of the trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as United States persons) unless such Person has
furnished the transferor and the Trustee with a duly completed Internal Revenue
Service Form W-8ECI or any applicable successor form, (vi) any Person with
respect to whom income on any residual certificate is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
treaty, of such Person or any other Person and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Residual Certificate to such Person may cause a
REMIC hereunder to fail to qualify as a REMIC at any time that the Certificates
are outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality of
the United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
the Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
"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.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
EXHIBIT 2
to EXHIBIT H
Section 5.02(c) of the Agreement
--------------------------------
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
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) 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.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee shall
not register the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Trustee under subparagraph (b)
above, the Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form attached
hereto as Exhibit H.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership Interest in
a Residual Certificate, (B) to obtain a Transfer Affidavit from any Person for
whom such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section 5.02(c)
shall be absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then the
last preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of 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 Section 5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder who is
not a Permitted Transferee described in clauses (i) through (iv) of the
definition thereof.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Loan
Seller, the Transferors or the Servicer, to the effect that the elimination of
such restrictions will not cause a REMIC hereunder to fail to qualify as a REMIC
at any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
___________________________
Date
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2003-4, Mortgage Pass-Through Certificates,
Series 2003-4, Class A-R
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, in a manner that would be
deemed, or taken any other action which would result in, a violation of Section
5 of the Securities Act of 1933, as amended and (b) to the extent we are
disposing of a Class A-R Certificate, (i) we have no knowledge the Transferee is
not a Permitted Transferee, (ii) after conducting a reasonable investigation of
the financial condition of the Transferee, we have no reason to believe that the
Transferee will not pay taxes with respect to the Class A-R Certificate when
due, and (iii) we have no reason to believe that the statements made in
paragraph 11 of the Transferee's Transfer Affidavit are false.
Very truly yours,
_______________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT J
FORM OF INVESTMENT LETTER (NON-RULE 144A)
___________________________
Date
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2003-4, Mortgage Pass-Through Certificates,
Series 2003-4, Class [ ]
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a plan or
arrangement subject to any federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor are we
acting on behalf of any such plan or arrangement, nor are we using the assets of
any such plan or arrangement to effect such acquisition or (ii) if we are an
insurance company, we are an insurance company that is purchasing such
Certificates with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Pooling and Servicing Agreement.
Very truly yours,
_______________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT K
FORM OF RULE 144A LETTER
______________________
Date
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2003-4, Mortgage Pass-Through Certificates,
Series 2003-4, Class [ ]
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a plan or
arrangement subject to any federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor are we
acting on behalf of any such plan or arrangement, nor are we using the assets of
any such plan or arrangement to effect such acquisition or (ii) if we are an
insurance company, we are an insurance company that is purchasing such
Certificates with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificates are
covered under PTCE 95-60, (e) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
ANNEX 1
to EXHIBIT K
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
(For Transferees Other Than Registered Investment Companies)
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis either at least $100,000 in securities
or, if Buyer is a dealer, Buyer must own and/or invest on a discretionary basis
at least $10,000,000 in securities (except for the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State,
territory or the District of Columbia.
State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) 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 Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_______________________________________
Print Name of Buyer
By:____________________________________
Name:
Title:
Date:
ANNEX 2
to EXHIBIT K
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
(For Transferees That are Registered Investment Companies)
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at market.
___ The Buyer owned $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) 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.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
_______________________________________
Print Name of Buyer or Adviser
By:____________________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Buyer
Date:
EXHIBIT L
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank Minnesota, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000-0000
Attn: Inventory Control--MARM 2003-4
Re: Pooling and Servicing Agreement, dated as of September 1, 2003,
by and among Mortgage Asset Securitization Transactions, Inc., as
depositor, UBS Warburg Real Estate Securities Inc., as
transferor, Xxxxx Fargo Bank Minnesota, N.A., as master servicer
and a custodian, U.S. Bank National Association, as a custodian,
and JPMorgan Chase Bank, as trustee
In connection with the administration of the Mortgage Loans held by you as
Master Servicer pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
--------------------
Mortgagor Name, Address & Zip Code:
----------------------------------
Reason for Requesting Documents (check one):
-------------------------------------------
___________ 1. Mortgage Paid in Full
___________ 2. Foreclosure
___________ 3. Substitution
___________ 4. Other Liquidation (Repurchases, etc.)
___________ 5. Nonliquidation
Reason:____________________________________
Address to which Custodian should
Deliver the Master Servicer's Mortgage File:
__________________________________________
__________________________________________
__________________________________________
By:_______________________________________
(authorized signer)
Issuer:_____________________________________
Address:____________________________________
____________________________________
Date:______________________________________
Master Servicer
---------------
Xxxxx Fargo Bank Minnesota, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
____________________________________ _____________________________
Signature Date
Documents returned to Custodian:
____________________________________ _____________________________
Custodian Date
EXHIBIT M
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
-----------------------
MASTR Adjustable Rate Mortgages Trust 2003-4
Mortgage Pass-Through Certificates
Series 2003-4
This Certification is being made pursuant to Section 8.12(d) of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") relating
to the above-referenced Series, among UBS Warburg Real Estate Securities Inc.,
Mortgage Asset Securitization Transactions, Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank Minnesota, N.A., as master servicer (the "Master
Servicer") and a custodian, U.S. Bank National Association, as a custodian, and
JPMorgan Chase Bank, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings assigned in the Pooling and Servicing
Agreement.
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution date reports filed
in respect of periods included in the year covered by this
annual report, of the Trust;
2. Based on my knowledge, the information in these reports, taken
as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last
day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to
be provided to the Trustee by the Master Servicer under the
Pooling and Servicing Agreement for inclusion in these reports
is included in these reports;
4. I am responsible for reviewing the activities performed by the
Servicers under the Servicing Agreements and based upon my
knowledge and the annual compliance review required under the
Servicing Agreements, and except as disclosed in the reports,
each Servicer has fulfilled its obligations under the related
Servicing Agreement; and
5. The reports disclose all significant deficiencies relating to
each 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 related
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: [name of each
Servicer, Depositor or Trustee].
Capitalized terms used but not defined herein have the meanings
assigned in the pooling and servicing agreement dated as of September 1, 2003
(the "Pooling and Servicing Agreement") among Mortgage Asset Securitization
Transactions, Inc., as depositor, UBS Warburg Real Estate Securities Inc., as
transferor, Xxxxx Fargo Bank Minnesota, N.A., as master servicer and a
custodian, U.S. Bank National Association, as a custodian, and JPMorgan Chase
Bank, as trustee.
______________________________
[Signature]
Name:_________________________
Title:________________________
