EXHIBIT 4
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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
BANK ONE, N.A.,
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2002
-----------------------------------
MASTR ALTERNATIVE LOAN TRUST 2002-3
MORTGAGE PASS-THROUGH CERTIFICATES, Series 2002-3
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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.............
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; Yield Maintenance Reserve 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; Maintenance of Primary
Insurance Policies...............................................
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 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....................
ARTICLE IV
DISTRIBUTIONS AND SERVICING ADVANCES
Section 4.01 Advances..........................................................
Section 4.02 Priorities of Distribution........................................
Section 4.03 Allocation of Applied Realized Loss Amounts.......................
Section 4.04 Monthly Statements to Certificateholders..........................
Section 4.05 Determination of LIBOR............................................
Section 4.06 Policy Matters....................................................
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 and the Master
Servicer.........................................................
Section 6.02 Merger or Consolidation of the Depositor or the Master
Servicer.........................................................
Section 6.03 Limitation on Liability of the Depositor, the Transferor,
the Master Servicer and Others...................................
Section 6.04 Limitation on Resignation of Master Servicer......................
Section 6.05 Sale and Assignment of Master Servicing Rights....................
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..................................................
Section 8.13 Grantor Trust Administration......................................
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.........................
Section 10.11 Third Party Beneficiary...........................................
SCHEDULES
Schedule I: Mortgage Loan Schedule............................................
Schedule II: Representations and Warranties as to the Mortgage Loans...........
Schedule III: Yield Maintenance Notional Amount Schedule........................
EXHIBITS
Exhibit A-1: Form of Class A-1 Certificate.................................
Exhibit A-1A: Form of Class A-1A Certificate................................
Exhibit A-2: Form of Class A-2 Certificate.................................
Exhibit A-3: Form of Class A-3 Certificate.................................
Exhibit A-3A: Form of Class A-3A Certificate................................
Exhibit A-4: Form of Class A-4 Certificate.................................
Exhibit A-5: Form of Class A-5 Certificate.................................
Exhibit A-6: Form of Class A-6 Certificate.................................
Exhibit A-7: Form of Class A-7 Certificate.................................
Exhibit A-IO: Form of Class A-IO Certificate................................
Exhibit A-M-1: Form of Class M-1 Certificate.................................
Exhibit A-M-2: Form of Class M-2 Certificate.................................
Exhibit A-R: Form of Class R Certificate...................................
Exhibit B: Form of Class B Certificate...................................
Exhibit C: Form of Class C Certificate...................................
Exhibit D: (Reserved)....................................................
Exhibit E: Form of Reverse of Certificates...............................
Exhibit F: Form of Initial Certification of Master Servicer..............
Exhibit G: Form of Final Certification of Master Servicer................
Exhibit H: 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...................................
Exhibit M: Form of Yield Maintenance Agreement...........................
Exhibit N: Form of MBIA Insurance Policy.................................
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2002,
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 (the "Master
Servicer"), and BANK ONE, N.A., a national banking association, 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 and MBIA.
The Trust Fund for federal income tax purposes will consist of three REMICs. The
Lower-Tier REMIC will consist of all of the assets listed in the definition of
"Trust Fund" (other than the Excess Reserve Fund Account, the Yield Maintenance
Agreement and the Yield Maintenance Reserve Account and any proceeds thereof)
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 LR Interest as the single class of "residual interest" in
the Lower-Tier REMIC. The Trustee shall hold the Lower-Tier REMIC Regular
Interests.
The following table sets forth the Lower-Tier REMIC Interests, the
interest rate and initial principal amounts with respect to the Lower-Tier REMIC
Interests.
LOWER-TIER CLASS LOWER-TIER INITIAL LOWER-TIER
DESIGNATION INTEREST RATE PRINCIPAL AMOUNT
---------------- ------------- ------------------
Class L1 (1) 15,000,000
Class L2 (1) 20,000,000
Class L3 (1) 15,000,000
Class L4 (1) 20,000,000
Class L5 (1) 25,000,000
Class L6 (1) 40,000,000
Class L7 (1) 540,078,365
Class LR (2) (2)
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the weighted average of
the Net Mortgage Rates on the Mortgage Loans (based on the respective
Stated Principal Balance thereof).
(2) The Class LR Interest is the sole class of residual interest in the
Lower-Tier REMIC and it does not have a principal amount or an interest
rate.
On each Distribution Date, the Principal Remittance Amount and any
Realized Losses generated by the Mortgage Loans will be allocated first, to the
Class L7 Interest until the principal balance of the Class L7 Interest is
reduced to zero; and thereafter, such amounts shall be allocated sequentially to
the Class L1, Class L2, Class L3, Class L4, Class L5 and Class L6 Interests
until the principal balance of each such Class is reduced to zero.
The Middle-Tier REMIC will consist of the Lower-Tier Regular Interests and
proceeds thereof in the Distribution Account and will be evidenced by the
Middle-Tier REMIC Regular Interests (which will be uncertificated and will
represent the "regular interests" in the Middle-Tier REMIC) and the Class MR
Interest as the single class of "residual interest" in the Middle-Tier REMIC.
The Trustee shall hold the Middle-Tier REMIC Regular Interests. The Class A-1-M,
Class A-1A-M, Class A-2-M, Class A-3-M, Class LT-A-3A-M, Class A-4-M, Class
A-5-M, Class A-6-M, Class A-7-M, Class M-1-M, Class M-2-M and Class B-M
Interests are hereby designated the MT Accretion Directed Classes (the "MT
Accretion Directed Classes"). The following table sets forth the Middle-Tier
REMIC Interests, the interest rate and the initial principal amount and the
Corresponding Upper-Tier REMIC Regular Interest with respect to the Middle-Tier
REMIC interests.
CORRESPONDING
UPPER-TIER
MIDDLE-TIER CLASS MIDDLE-TIER INITIAL MIDDLE-TIER REMIC REGULAR
DESIGNATION INTEREST RATE PRINCIPAL AMOUNT INTEREST
----------------- ------------- --------------------------- -------------
Class A-1-M (1) 1/2 initial Corresponding A-1
Upper-Tier REMIC initial
principal balance
Class A-1A-M (1) 1/2 initial Corresponding A-1A
Upper-Tier REMIC initial
principal balance
Class A-2-M (1) 1/2 initial Corresponding A-2
Upper-Tier REMIC initial
principal balance
Class A-3-M (1) 1/2 initial Corresponding A-3
Upper-Tier REMIC initial
principal balance
Class A-3A-M (1) 1/2 initial Corresponding A-3A
Upper-Tier REMIC initial
principal balance
Class A-4-M (1) 1/2 initial Corresponding A-4
Upper-Tier REMIC initial
principal balance
Class A-5-M (1) 1/2 initial Corresponding A-5
Upper-Tier REMIC initial
principal balance
Class A-6-M (1) 1/2 initial Corresponding A-6
Upper-Tier REMIC initial
principal balance
Class A-7-M (1) 1/2 initial Corresponding A-7
Upper-Tier REMIC initial
principal balance
Class M-1-M (1) 1/2 initial Corresponding M-1
Upper-Tier REMIC initial
principal balance
Class M-2-M (1) 1/2 initial Corresponding M-2
Upper-Tier REMIC initial
principal balance
Class B-M (1) 1/2 initial Corresponding B
Upper-Tier REMIC initial
principal balance
Class A-IO-M (2) N/A(3) A-IO
Class Spread-M (4) N/A(5) N/A
Class Accrual-M (1) 1/2 Pool Principal Balance
plus 1/2 Overcollateralized
Amount
Class MR (6) (6) N/A
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the related Net WAC Rate
(minus, with respect to the Class A-7-M Interest only, two times the
Policy Premium Rate).
(2) The interest rate with respect to any Distribution Date for this interest
is a per annum rate equal to 6.000%; provided that for the first through
fourth Distribution Dates, the Pass-Through Rate for the Class A-IO-M
Interest will be 4.0000000000%; but in any case may not exceed the related
Net WAC Rate.
(3) The Class A-IO-M Interest will not be entitled to distributions in respect
of principal and will bear interest on a notional amount equal to the
Notional Amount of the Class A-IO Certificates.
(4) The interest rate for this interest with respect to the first through
fourth Distribution Dates for this interest is a per annum rate equal to
1.3333333333% and with respect to the each Distribution Date thereafter,
0% per annum.
(5) The Class Spread-M Interest will not be entitled to distributions in
respect of principal and will bear interest on a notional amount equal to
the lesser of (1) $135,000,000 or (2) the aggregate principal balance of
the Mortgage Loans (prior to giving effect to scheduled payments of
principal due during the related Due Period and unscheduled collections of
principal received during the related Prepayment Period).
(6) The Class MR Interest is the sole class of residual interest in the
Middle-Tier REMIC and it does not have a principal amount or an interest
rate.
On each Distribution Date, 50% of the increase in the Overcollateralized Amount
will be payable as a reduction of the principal balances of the MT Accretion
Directed Classes (each such Class will be reduced by an amount equal to 50% of
any increase in the Overcollateralized Amount that is attributable to a
reduction in the principal balance of its Corresponding Class) and will be
accrued and added to the principal balance of the Class Accrual-M Interest. On
each Distribution Date, the increase in the principal balance of the Class
Accrual-M Interest may not exceed interest accruals for such Distribution Date
for the Class Accrual-M Interest. In the event that: (i) 50% of the increase in
the Overcollateralized Amount exceeds (ii) interest accruals on the Class
Accrual-M Interest for such Distribution Date, the excess for such Distribution
Date (accumulated with all such excesses for all prior Distribution Dates) will
be added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class Accrual-M Interest
payable as principal on the MT Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans or paid under the Policy shall be allocated 50% to (i) the Class Accrual-M
Interest and (ii) 50% to the MT Accretion Directed Classes (such payments shall
be allocated among such MT Accretion Directed Classes in an amount equal to 50%
of the principal amounts allocated to their respective Corresponding Classes),
until paid in full. Notwithstanding the above, principal payments allocated to
the Class C Certificates that result in the reduction in the Overcollateralized
Amount shall be allocated to the Class Accrual-M Interest (until paid in full).
Realized Losses shall be applied so that after all distributions have been made
on each Distribution Date (i) the principal balances of each MT Accretion
Directed Class is equal to 50% of the principal balance of their Corresponding
Class, and (ii) the Class Accrual-M Interest is equal to 50% of the aggregate
Stated Principal Balance of the Mortgage Loans plus 50% of the
Overcollateralized Amount.
The Upper-Tier REMIC will consist of the Middle-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 UR Interest as the single "residual interest" of
the Upper-Tier REMIC. In addition, each Class of Offered Certificates will
represent beneficial ownership of a "regular interest" in the Upper-Tier REMIC
and the right to receive their respective Basis Risk Carry Forward Amount and
the Class C Certificates will represent beneficial ownership of two "regular
interests" in the Upper-Tier REMIC and the Yield Maintenance Agreement, the
Yield Maintenance Reserve Account, the Excess Reserve Fund Account, subject to
the obligation to pay the Basis Risk Carry Forward Amounts, which portions of
the Trust Fund shall be treated as a grantor trust. The "latest possible
maturity date" for federal income tax purposes of all interests created hereby
will be the Latest Possible Maturity Date.
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):
INITIAL CLASS
CERTIFICATE INTEGRAL
BALANCE OR INITIAL MULTIPLES
CLASS OF NOTIONAL PASS-THROUGH MINIMUM IN EXCESS OF
CERTIFICATES AMOUNT RATE DENOMINATION MINIMUM
----------------- ------------- ------------ ------------ ------------
Class A-1........ $119,800,000 (1) $25,000 $1
Class A-1A....... $100,000,000 (2) $25,000 $1
Class A-2........ $136,100,000 3.762%(3) $25,000 $1
Class A-3........ $40,000,000 4.361%(3) $25,000 $1
Class A-3A....... $50,000,000 4.299%(3) $25,000 $1
Class A-4........ $75,000,000 5.012%(3) $25,000 $1
Class A-5........ $54,135,000 6.140%(3) $25,000 $1
Class A-6........ $15,000,000 4.924%(3) $25,000 $1
Class A-7........ $52,300,000 4.875%(3) $25,000 $1
Class A-IO....... (4) (5) $100,000 $1
Class M-1........ $16,540,000 5.567%(3) $25,000 $1
Class M-2........ $12,827,000 5.727%(3) $25,000 $1
Class B.......... $3,376,365 6.227%(3) $25,000 $1
Class C.......... N/A N/A(6) $25,000 $1
Class R(7)....... N/A N/A N/A $1
(1) The Pass-Through Rate for the Class A-1 Certificates will equal the lesser
of (i) LIBOR plus 0.200% (subject to an increase to 0.400% after the first
Distribution Date on which the Optional Termination may be exercised) and
(ii) the applicable Net WAC Rate.
(2) The Pass-Through Rate for the Class A-1A Certificates will equal the
lesser of (i) LIBOR plus 0.160% (subject to an increase to 0.320% after
the first Distribution Date on which the Optional Termination may be
exercised) and (ii) the applicable Net WAC Rate.
(3) The Pass-Through Rate on each of the Class X-0, Xxxxx X-0, Class A-3A,
Class A-4, Class A-5, Class A-6, Class A-7, Class M-1, Class M-2 and Class
B Certificates will equal the lesser of (i) the initial Pass-Through Rate
shown above (subject to an increase of 0.500% after the first Distribution
Date on which the Optional Termination may be exercised) and (ii) the
applicable Net WAC Rate.
(4) The Class A-IO Certificates are Interest-Only Certificates, will not be
entitled to distributions in respect of principal and will bear interest
on their Notional Amount (initially $135,000,000).
(5) The Pass-Through Rate on the Class A-IO Certificates will be 6.000%;
provided that for the first through fourth Distribution Dates, the
Pass-Through Rate for the Class A-IO Certificates will be 4.0000000000%;
but in any case may not exceed the applicable Net WAC Rate.
(6) The Class C Certificates will represent two regular interests in the
Upper-Tier REMIC. As of any Distribution Date, the first REMIC regular
interest represented by the Class C Certificates shall have a notional
principal balance equal to the aggregate of the principal balances of the
Middle-Tier REMIC Regular Interests as of the first day of the related
Interest Accrual Period. With respect to any Interest Accrual Period, the
first REMIC regular interest represented by the Class C Certificates shall
bear interest at a rate equal to the excess, if any of the weighted
average of the interest rates on the Middle-Tier REMIC Regular Interests
(other than the Class A-IO-M and Class Spread-M Interests), over the
product of (i) 2 and (ii) the weighted average interest rates of the
Middle-Tier REMIC Regular Interests (other than the Class A-IO-M and Class
Spread-M Interests) where the Class Accrual-M Interest is subject to a cap
equal to zero and each MT Accretion Directed Class is subject to a cap
equal to the Pass-Through Rate on its Corresponding Class of Upper-Tier
REMIC Regular Interest. With respect to any Distribution Date, interest
that so accrues on the notional principal balance of the first REMIC
regular interest represented by the Class C Certificates shall be deferred
in an amount equal to any increase in the Overcollateralized Amount on
such Distribution Date. Such deferred interest shall not itself bear
interest. The second REMIC regular interest represented by the Class C
Certificates will be entitled to any Retained Spread. The Class C
Certificates will also represent beneficial ownership of the Yield
Maintenance Agreement, amounts in the Yield Maintenance Reserve Account
and the Excess Reserve Fund Account, subject to the obligation to make
payments from the Excess Reserve Fund Account and the Yield Maintenance
Reserve Account, as applicable, in respect of Basis Risk Carry Forward
Amounts. For federal income tax purposes, the Trustee will treat a Class C
Certificateholder's obligation to make such payments as payments made
pursuant to an interest rate cap contract written by the Class C
Certificateholders in favor of each Class of Offered Certificates. Such
rights of the Class C Certificateholders and the Offered
Certificateholders shall be treated as held in a portion of the Trust Fund
that is treated as a grantor trust under subpart E, Part I of subchapter J
of the Code.
(7) The Class R Certificates will represent the Class LR Interest, the Class
MR Interest and the Class UR Interest.
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 Private Certificates.
Interest Only
Certificates ............ The Class A-IO Certificates.
Mezzanine Certificates .... The Class M-1 and Class M-2 Certificates.
LIBOR Certificates ........ The Class A-1 and Class A-1A 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 C and Class R Certificates.
Rating Agencies ........... Xxxxx'x and S&P.
Regular Certificates ...... All Classes of Certificates, other than the
Residual Certificates.
Residual Certificates ..... The Class R Certificates.
Senior Certificates ....... The Class A-1, Class A-1A, Class A-2, Class A-3,
Class A-3A, Class A-4, Class A-5, Class A-6, Class
A-7 and Class A-IO Certificates.
Subordinate Certificates .. The Class B 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
for each Class of Certificates, the amount of interest accrued during the
related Interest Accrual Period at the applicable Pass-Through Rate on the
related Class Certificate Balance or Notional Amount immediately prior to such
Distribution Date, as reduced by such Class's share of Net Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls for the related Due Period
allocated to such Class pursuant to Section 4.02(f).
Advance: An advance of principal or interest required to be made by
the applicable Servicer pursuant to the related Purchase and Servicing Agreement
or required to be made by the Master Servicer with respect to any Distribution
Date pursuant to Section 4.01, the amount of any such payment being equal to the
aggregate of payments of principal and interest (net of the Servicing Fee and
net of any net income in the case of any REO Property) on the Mortgage Loans
that were due on the related Due Date and not received as of the close of
business on the related Determination Date, less the aggregate amount of any
such delinquent payments that the Master Servicer or the applicable Servicer, as
the case may be, has determined would constitute a Nonrecoverable Advance if
advanced.
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.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Alliance: Alliance Bancorp., a California corporation, and its
successors and assigns, in its capacity as seller of the Alliance Mortgage
Loans.
Alliance Loan Sale Date: The date that the Alliance Mortgage Loans
were transferred to the Transferor as set forth on the Mortgage Loan Schedule
under the heading "Loan Sale Date."
Alliance Mortgage Loans: The Mortgage Loans for which Alliance is
listed as "Originator" on the Mortgage Loan Schedule.
Alliance Purchase and Servicing Agreement: Solely with respect to
the Alliance Mortgage Loans, the Master Mortgage Loan Sale and Servicing
Transfer Agreement, dated as of August 1, 2002, between Xxxxx Fargo Funding,
Inc., as purchaser, and Alliance, as seller, as the same may be amended from
time to time, and any assignment and conveyance related to the Alliance Mortgage
Loans.
Alterna: Alterna Mortgage Co., and its successors and assigns, in
its capacity as seller of the Alterna Mortgage Loans to the Transferor.
Alterna Loan Sale Date: The date that the Alterna Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Alterna Mortgage Loans: The Mortgage Loans for which Alterna is
listed as "Originator" on the Mortgage Loan Schedule.
Alterna Purchase and Servicing Agreement: The Master Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of September 1,
2002, between the Transferor, as purchaser, and Alterna, as seller, as the same
may be amended from time to time.
American Mortgage Express: American Mortgage Express Corp., and its
successors and assigns, in its capacity as seller of the American Mortgage
Express Mortgage Loans to the Transferor.
American Mortgage Express Loan Sale Date: The date that the American
Mortgage Express Loans were transferred to the Transferor as set forth on the
Mortgage Loan Schedule under the heading "Loan Sale Date."
American Mortgage Express Mortgage Loans: The Mortgage Loans for
which American Mortgage Express is listed as "Originator" on the Mortgage Loan
Schedule.
American Mortgage Express Purchase and Servicing Agreement: The
Master Seller's Purchase, Warranties and Interim Servicing Agreement, dated as
of September 1, 2002, between the Transferor, as purchaser, and American
Mortgage Express, as seller, as the same may be amended from time to time.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Offered Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
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 November 26, 2002, whereby the Purchase
and Servicing Agreements solely with respect to the Mortgage Loans were assigned
to the Depositor for the benefit of the Certificateholders:
(a) The Assignment, Assumption and Recognition Agreement among Bank
of America, as company, the Transferor and the Depositor;
(b) The Assignment, Assumption and Recognition Agreement among
Cendant and Xxxxxx'x Gate, as companies, the Transferor and the Depositor;
(c) The Assignment, Assumption and Recognition Agreement among
Chase, as company, the Transferor and the Depositor;
(d) The Assignment, Assumption and Recognition Agreement among First
Horizon, as company, the Transferor and the Depositor;
(e) The Assignment, Assumption and Recognition Agreement among
GMACM, as company, the Transferor and the Depositor;
(f) The Assignment, Assumption and Recognition Agreement among Ohio
Bank, as company, the Transferor and the Depositor;
(g) The Assignment, Assumption and Recognition Agreement among
Provident, as company, the Transferor and the Depositor;
(h) The Assignment, Assumption and Recognition Agreement among The
Mortgage Store, as company, the Transferor and the Depositor;
(i) The Assignment, Assumption and Recognition Agreement among
National City, as company, the Transferor and the Depositor;
(j) The Assignment, Assumption and Recognition Agreement among US
Mortgage, as company, the Transferor and the Depositor;
(k) The Assignment, Assumption and Recognition Agreement among WAMU,
as company, the Transferor and the Depositor;
(l) The Assignment, Assumption and Recognition Agreement among Xxxxx
Fargo, as company, the Transferor and the Depositor; and
(m) The Assignment, Assumption and Recognition Agreement among
WMMSC, as company, the Transferor and the Depositor.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received prior to the related Determination Date, together with any Monthly
Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds
and Liquidation Proceeds during the related Prepayment Period (in each case, net
of unreimbursed expenses incurred in connection with a liquidation or
foreclosure and unreimbursed Advances, if any); (iii) all partial or full
prepayments on the Mortgage Loans received during the related Prepayment Period
together with all Compensating Interest thereon; and (iv) amounts received with
respect to such Distribution Date as the Substitution Adjustment Amount or
purchase price in respect of a Deleted Mortgage Loan or a Mortgage Loan
repurchased by the Originator or the Transferor as of such Distribution Date;
reduced by (y) amounts in reimbursement for Monthly Advances and Servicing
Advances previously made with respect to the Mortgage Loans and other amounts as
to which the Depositor, the Master Servicer or the Trustee are entitled to be
paid or reimbursed pursuant to this Agreement.
Bank of America: Bank of America, N.A., a national banking
association, and its successors and assigns, in its capacity as Servicer of the
Bank of America Mortgage Loans.
Bank of America Loan Sale Date: The date that the Bank of America
Mortgage Loans were transferred to the Transferor as set forth on the Mortgage
Loan Schedule under the heading "Loan Sale Date."
Bank of America Mortgage Loans: The Mortgage Loans for which Bank of
America is listed as "Servicer" on the Mortgage Loan Schedule.
Bank of America Purchase and Servicing Agreement: Solely with
respect to the Bank of America Mortgage Loans, the Flow Mortgage Loan Sale and
Servicing Agreement, dated as of August 1, 2002, between the Transferor, as
purchaser, and Bank of America, as seller and as servicer, as the same may be
amended from time to time.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date, but not less than zero.
Basis Risk Carry Forward Amount: With respect to each Class of
Offered Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Offered Certificates is
based upon the related Net WAC Rate, the excess of (i) the amount of interest
such Class of Certificates would otherwise be entitled to receive on such
Distribution Date had such rate been calculated without giving effect to the
related Net WAC Rate, over (ii) the amount of interest payable on such Class of
Certificates at the related Net WAC Rate for such Distribution Date and (B) the
Basis Risk Carry Forward Amount for such Class of Certificates for all previous
Distribution Dates not previously paid, together with interest thereon at a rate
equal to the Pass-Through Rate for such Class of Certificates for such
Distribution Date without giving effect to the related Net WAC Rate.
Basis Risk Payment: For any Distribution Date, an amount equal to
the aggregate of the Basis Risk Carry Forward Amounts for such Distribution
Date; provided, however, that, with respect to any Distribution Date, the
payment cannot exceed the Class C Distributable Amount (prior to any reduction
for Basis Risk Payments).
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, a New Jersey corporation, and
its successors and assigns, in its capacity as Servicer of the Cendant Mortgage
Loans.
Cendant Loan Sale Date: The date that the Cendant Mortgage Loans
were transferred to the Transferor as set forth on the Mortgage Loan Schedule
under the heading "Loan Sale Date."
Cendant Mortgage Loans: The Mortgage Loans for which Cendant is
listed as "Servicer" on the Mortgage Loan Schedule.
Cendant Purchase and Servicing Agreement: Solely with respect to the
Cendant Mortgage Loans, the Mortgage Loan Flow Purchase, Sale and Servicing
Agreement, dated as of August 1, 2001, among the Transferor, Cendant and
Xxxxxx'x Gate Residential Mortgage Trust (formerly known as Cendant Residential
Mortgage Trust) ("Xxxxxx'x Gate") as amended by that certain Amendment Number
One to the Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated
November 28, 2001, among the Transferor, Cendant and Xxxxxx'x Gate, as the same
may be amended from time to.
Certificate: Any one of the Certificates executed and authenticated
by the Trustee in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Certificates,
other than the Class A-IO or Class R Certificates, 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 all
distributions of principal previously made with respect thereto and in the case
of any Mezzanine Certificates or Subordinated Certificates, reduced by any
Applied Realized Loss Amounts applicable to such Class of Mezzanine Certificates
or Subordinated Certificates. The Class A-IO and Class R Certificates have no
Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
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.
Chapel: Chapel Mortgage Corporation, and its successors and assigns,
in its capacity as seller of the Chapel Mortgage Loans to the Transferor.
Chapel Loan Sale Date: The date that the Chapel Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Chapel Mortgage Loans: The Mortgage Loans for which Chapel is listed
as "Originator" on the Mortgage Loan Schedule.
Chapel Purchase and Servicing Agreement: The Master Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of August 1,
2002, between GMACM, as purchaser, and Chapel, as seller, as the same may be
amended from time to time.
Chase: Chase Manhattan Mortgage Corporation, a New Jersey
corporation, and its successors and assigns, in its capacity as Servicer of the
Chase Mortgage Loans.
Chase Loan Sale Date: The date that the Chase Mortgage Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Chase Mortgage Loans: The Mortgage Loans for which Chase is listed
as "Servicer" on the Mortgage Loan Schedule.
Chase Purchase and Servicing Agreement: Solely with respect to the
Chase Mortgage Loans, the Mortgage Loan Purchase, Warranties and Servicing
Agreement, dated as of October 1, 2002, between the Transferor, as purchaser,
and Chase, as seller and servicer, as the same may be amended from time to time.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balance of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 89.30% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
Stated Principal Balances of the Mortgage Loans for such Distribution Date over
the product of (1) 0.50% and (2) the Cut-Off Date Pool Balance.
Class A-7 Interest Loss Amount: As to any Distribution Date, the sum
of (a) the excess, if any, of (1) the Accrued Certificate Interest for the Class
A-7 Certificates for such Distribution Date over (2) the amount of the Available
Funds available to be distributed in respect of the Class A-7 Certificates on
such Distribution Date pursuant to clause (iii) of Section 4.02(a) and (b) if
MBIA so elects, in its sole discretion, the amount by which the Class
Certificate Balance of the Class A-7 Certificates exceeds the Stated Principal
Balance of the Mortgage Loans.
Class A-7 Principal Loss Amount: As to the Last Scheduled
Distribution Date, any shortfall in the amounts available to pay the Class
Certificate Balance of the Class A-7 Certificates on such Distribution Date
(after taking into account distributions to be made on such Distribution Date).
Class B Certificates: As specified in the Preliminary Statement.
Class B Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account distribution of the Class M-2 Principal
Distribution Amount for such Distribution Date) and (D) the Class Certificate
Balance of the Class B Certificates immediately prior to such Distribution Date
over (ii) the lesser of (A) 99.00% of the aggregate Stated Principal Balance of
the Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the product of (1) 0.50% and (2) the Cut-Off Date Pool Balance.
Class C Distributable Amount: On any Distribution Date the sum of
(i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class C Interest and not applied as an Extra Principal
Distribution Amount on such Distribution Date, plus any such accrued interest
remaining undistributed from prior Distribution Dates, plus (ii) as a
distribution in respect of principal, any portion of the principal balance of
the Class C Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk Payment.
Class C Interest: The first Upper-Tier REMIC Regular Interest
represented by the Class C Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class LR Interest: The sole class of "residual interest" in the
Lower-Tier REMIC.
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 94.20%
of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the Stated Principal Balance of
the Mortgage Loans for such Distribution Date over the product of (1) 0.50% and
(2) the Cut-Off Date Pool Balance.
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date) and (C) the Class Certificate Balance of the Class
M-2 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 98.00% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date and (B) the excess, if any, of the Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
product of (1) 0.50% and (2) the Cut-Off Date Pool Balance.
Class MR Interest: The sole class of "residual interest" in the
Middle-Tier REMIC.
Class UR Interest: The sole class of "residual interest" in the
Upper-Tier REMIC.
Closing Date: November 26, 2002.
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 "Bank One, N.A., in trust
for the registered holders of Mortgage Asset Securitization Transactions, Inc.
MASTR Alternative Loan Trust 2002-3, Mortgage Pass-Through Certificates Series
2002-3."
Compensating Interest: With respect to any Distribution Date, an
amount equal to the lesser of:
(a) with respect to any Servicer, the aggregate of the Prepayment
Interest Shortfalls on Mortgage Loans serviced by such Servicer for the
related Distribution Date; and
(b) with respect to any Servicer, the aggregate Servicing Fees due
to the applicable Servicer for such Distribution Date.
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.
Concord: Concord Mortgage Company, and its successors and assigns,
in its capacity as seller of the Concord Mortgage Loans to the Transferor.
Concord Loan Sale Date: The date that the Concord Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Concord Mortgage Loans: The Mortgage Loans for which Concord is
listed as "Originator" on the Mortgage Loan Schedule.
Concord Purchase and Servicing Agreement: The Master Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of September 1,
2002, between the Transferor, as purchaser, and Concord, as seller, as the same
may be amended from time to time.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan.
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 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust Services-MASTR Alternative Loan Trust 2002-3,
which is the address to which appropriate notices to and correspondence with the
Trustee should be directed, and for Certificate transfer purposes, at 00 Xxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Corresponding Class or Classes of Certificates and Upper-Tier REMIC
Regular Interests and Corresponding Middle-Tier REMIC Regular Interests: With
respect to each Middle-Tier REMIC Regular Interest and Class of Certificates and
Upper-Tier REMIC Regular Interests appearing opposite each other as follows:
CORRESPONDING CLASS OR CLASSES OF
CORRESPONDING MIDDLE-TIER CERTIFICATES AND UPPER-TIER REMIC REGULAR
REMIC REGULAR INTEREST INTERESTS
------------------------- -----------------------------------------
Class A-1-M Interest Class A-1
Class A-1A-M Interest Class A-1A
Class A-2-M Interest Class A-2
Class A-3-M Interest Class A-3
Class A-3A-M Interest Class A-3A
Class A-4-M Interest Class A-4
Class A-5-M Interest Class A-5
Class A-6-M Interest Class A-6
Class A-7-M Interest Class A-7
Class A-IO-M Interest Class A-IO
Class M-1-M Interest Class M-1
Class M-2-M Interest Class M-2
Class B-M Interest Class B
Cut-off Date: November 1, 2002.
Cut-off Date Pool Balance: $675,078,365.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
outstanding principal balance thereof as of the close of business on the Cut-off
Date.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficiency Amount: With respect to the Class A-7 Certificates on
each Distribution Date, the sum of (i) the Class A-7 Interest Loss Amount for
such Distribution Date and (ii) the Class A-7 Principal Loss Amount for such
Distribution Date.
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 hereof.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Class Certificate Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if neither
of 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 Sale
and 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 "Bank One, in trust for
registered holders of MASTR Alternative Loan Trust 2002-3 Mortgage Pass-Through
Certificates, Series 2002-3." 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 December 2002.
Due Date: With respect to any Distribution Date, the first day of
the month in which the related Distribution Date occurs.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the 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 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 Stated 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 Stated 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 a remaining term to maturity no greater than (and not more than one
year less than that of) the Deleted Mortgage Loan; (v) comply with each
representation and warranty set forth in Section 2.03 hereof; (vi) be the same
credit grade category as the Deleted Mortgage Loan; and (vii) 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 Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund 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 Regular Certificateholders and designated "Bank
One, N.A. in trust for registered holders of MASTR Alternative Loan Trust
2002-3, Mortgage Pass-Through Certificates, Series 2002-3." Funds in the Excess
Reserve Fund Account shall be held in trust for the Regular Certificateholders
for the uses and purposes set forth in this Agreement. Amounts on deposit in the
Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
Expense Fee Rate: As to each Mortgage Loan, a per-annum rate equal
to the sum of the Servicing Fee Rate, Master Servicing Fee Rate and the Lender
Paid Mortgage Insurance Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fee
and the Master Servicer Fees.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
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 Financial: First Financial Equities, and its successors and
assigns, in its capacity as Seller of First Financial Mortgage Loans.
First Financial Loan Sale Date: The date that First Financial
Mortgage Loans were transferred to the Transferor as set forth on the Mortgage
Loan Schedule under the heading "Loan Sale Date."
First Financial Mortgage Loans: The Mortgage Loans for which First
Financial is listed as "Originator" on the Mortgage Loan Schedule.
First Financial Purchase and Servicing Agreement: Solely with
respect to First Financial Mortgage Loans, the Master Seller's Purchase,
Warranties and Interim Servicing Agreement, dated as of September 1, 2002,
between GMACM, as purchaser and First Financial, as seller, as the same may be
amended from time to time.
First Guaranty: First Guaranty Mortgage Corporation, and its
successors and assigns, in its capacity as seller of the First Guaranty Mortgage
Loans to the Transferor.
First Guaranty Loan Sale Date: The date that the First Guaranty
Loans were transferred to the Transferor as set forth on the Mortgage Loan
Schedule under the heading "Loan Sale Date."
First Guaranty Mortgage Loans: The Mortgage Loans for which First
Guaranty Mortgage is listed as "Originator" on the Mortgage Loan Schedule.
First Guaranty Purchase and Servicing Agreement: The Master Seller's
Purchase Warranties and Interim Servicing Agreement, dated as of October 1,
2002, between the Transferor, as purchaser, and First Guaranty, as seller, as
the same may be amended from time to time.
First Horizon: First Horizon Home Loan Corp., and its successors and
assigns, in its capacity as Servicer of the First Horizon Mortgage Loans.
First Horizon Loan Sale Date: The date that the First Horizon
Mortgage Loans were transferred to the Transferor as set forth on the Mortgage
Loan Schedule under the heading "Loan Sale Date."
First Horizon Mortgage Loans: The Mortgage Loans for which First
Horizon is listed as "Servicer" on the Mortgage Loan Schedule.
First Horizon Purchase and Servicing Agreement: Solely with respect
to the First Horizon Mortgage Loans, the Master Loan Purchase and Servicing
Agreement, dated as of October 1, 2001, between the Transferor, as initial
purchaser, and First Horizon, as seller and servicer, as the same may be amended
from time to time.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b), the address for notices to Fitch shall be Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, XX 00000, Attention: MBS Monitoring MASTR Alternative Loan Trust 2002-3.
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.
Genisys: Genisys Financial Corp., and its successors and assigns, in
its capacity as seller of the Genisys Mortgage Loans to the Transferor.
Genisys Loan Sale Date: The date that the Genisys Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Genisys Mortgage Loans: The Mortgage Loans for which Genisys is
listed as "Originator" on the Mortgage Loan Schedule.
Genisys Purchase and Servicing Agreement: The Master Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of September 1,
2002, between the Transferor, as purchaser, and Genisys, as seller, as the same
may be amended from time to time.
GMACM: GMAC Mortgage Corporation, a Pennsylvania corporation, and
its successors and assigns, in its capacity as Servicer of certain of the
Mortgage Loans.
GMACM Servicing Agreement: The Servicing Agreement, dated as of
November 1, 2001, between the Transferor and GMACM, as the same may be amended
from time to time.
Grantor Trust: That portion of the Trust exclusive of the REMICs
created hereunder which holds (a) the right of the Offered Certificates to
receive Basis Risk Carry Forward Amounts, (b) the Excess Reserve Fund Account
and the beneficial interest of the Class C Certificates with respect thereto,
subject to the obligation to pay Basis Risk Carry Forward Amounts and (c) the
Yield Maintenance Agreement, the Yield Maintenance Reserve Account and the
beneficial interest of the Class C Certificates with respect thereto, subject to
the obligation to pay Basis Risk Carry Forward Amounts.
Greenpoint: Greenpoint Mortgage Funding, Inc., and its successors
and assigns, in its capacity as seller of the Greenpoint Mortgage Loans to the
Transferor.
Greenpoint Loan Sale Date: The date that the Greenpoint Mortgage
Loans were transferred to the Transferor as set forth on the Mortgage Loan
Schedule under the heading "Loan Sale Date."
Greenpoint Mortgage Loans: The Mortgage Loans for which Greenpoint
is listed as "Originator" on the Mortgage Loan Schedule.
Greenpoint Purchase and Servicing Agreement: The Master Mortgage
Loan Sale and Servicing Transfer Agreement, dated as of September 1, 2002,
between Xxxxx Fargo Funding, Inc., as purchaser, and Greenpoint, as seller, as
the same may be amended from time to time.
Homestar: Homestar Mortgage Services, LLC, and its successors and
assigns, in its capacity as seller of the Homestar Mortgage Loans.
Homestar Loan Sale Date: The date that the Homestar Mortgage Loans
were transferred to the Transferor as set forth on the Mortgage Loan Schedule
under the heading "Loan Sale Date."
Homestar Mortgage Loans: The Mortgage Loans for which Homestar is
listed as "Originator" on the Mortgage Loan Schedule.
Homestar Purchase and Servicing Agreement: Solely with respect to
the Homestar Mortgage Loans, the Master Mortgage Loan Sale and Servicing
Transfer Agreement, dated as of October 1, 2002, between Xxxxx Fargo Funding,
Inc., as purchaser and Homestar, as seller, as the same may be amended from time
to time.
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 LIBOR Rate: With respect to the LIBOR Certificates, 1.38%.
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.
Insured Payment: The sum of (i) as of any Distribution Date, any
Deficiency Amount and (ii) any Preference Amount.
Interest Accrual Period: (i) With respect to each Class of
Certificates (other than the Class A-1 and Class A-1A Certificates), the
Corresponding Middle-Tier REMIC Regular Interests, the Lower-Tier REMIC Regular
Interests and any Distribution Date, the period from and including the 1st day
of the month immediately preceding the month in which such Distribution Date
occurs, commencing November 1, 2002, to and including the last day of such
immediately preceding month, and (ii) with respect to the Class A-1 and Class
A-1A Certificates and the Corresponding Middle-Tier REMIC Regular Interests and
any Distribution Date, the period from and including the 25th day of the month
immediately preceding the month in which such Distribution Date occurs,
commencing November 25, 2002, to and including the 24th day of the month in
which such Distribution Date occurs.
Interest Only Certificates: As specified in the Preliminary
Statement.
JLM: JLM Direct Funding Ltd., and its successors and assigns, in its
capacity as seller of the JLM Mortgage Loans to the Transferor.
JLM Loan Sale Date: The date that the JLM Loans were transferred to
the Transferor as set forth on the Mortgage Loan Schedule under the heading
"Loan Sale Date."
JLM Mortgage Loans: The Mortgage Loans for which JLM is listed as
"Originator" on the Mortgage Loan Schedule.
JLM Purchase and Servicing Agreement: The Master Seller's Purchase,
Warranties and Interim Servicing Agreement, dated as of August 1, 2002, between
GMACM, as purchaser, and JLM as seller, as the same may be amended from time to
time.
Last Scheduled Distribution Date: The Distribution Date in December
2032.
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
Stated 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 62 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."
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations for one-month U.S. Dollar deposits, as
determined by the Master Servicer in accordance with Section 4.05.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: As to any Distribution Date and any Class
of LIBOR Certificates, the second London Business Day prior to the beginning of
the applicable Interest Accrual Period for such Class and such Distribution
Date.
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 Purchase and 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 Sale Date: Each of the Alliance Loan Sale Date, Alterna Loan
Sale Date, American Express Loan Sale Date, the Bank of America Loan Sale Date,
the Cendant Loan Sale Date, the Chase Loan Sale Date, the Chapel Loan Sale Date,
the Concord Loan Sale Date, the First Financial Loan Sale Date, the First
Horizon Loan Sale Date, the First Guaranty Loan Sale Date, the Greenpoint Loan
Sale Date, the First Guaranty Loan Sale Date, the Genisys Loan Sale Date, the
Homestar Loan Sale Date, the JLM Loan Sale Date, the Market Street Loan Sale
Date, the Mortgage Network Loan Sale Date, the National City Loan Sale Date, the
Ohio Bank Loan Sale Date, the Principal Loan Sale Date, the Provident Loan Sale
Date, the RBC Loan Sale Date, the Secured Bankers Company Loan Sale Date, the
SIB Loan Sale Date, the Xxxxxx Xxxx Loan Sale Date, The Mortgage Store Loan Sale
Date, the Universal Loan Sale Date, the UCMC Loan Sale Date, the Virtual Bank
Loan Sale Date, the Wachovia Loan Sale Date, the Wall Street Bankers Loan Sale
Date, the WAMU Loan Sale Date, and the WMMSC Loan Sale Date, as applicable.
Loan-to-Value 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.
Lockout Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the product of (1) a fraction, the
numerator of which is the sum of the Class Certificate Balance of the Class A-6
and Class A-7 Certificates and the denominator of which is the aggregate Class
Certificate Balance of all of the Class A Certificates, in each case immediately
prior to such Distribution Date, (2) the Class A Principal Distribution Amount
for such Distribution Date and (3) the applicable percentage for such
Distribution Date set forth in the following table:
DISTRIBUTION DATE OCCURRING %
------------------------------------------------------------------------- ---
December 2002 through November 2005 ..................................... 0%
December 2005 through November 2007 ..................................... 45%
December 2007 through November 2008 ..................................... 80%
December 2008 through November 2009 ..................................... 100%
After November 2009 ..................................................... 300%
until the Class Certificate Balances of the Class A-6 and Class A-7 Certificates
have been reduced to zero.
London Business Day: Any Business Day on which banks are open for
dealing in foreign currency and exchange in London, England, the City of New
York and the State where the Corporate Trust Office is located.
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 LR Interest.
Lower-Tier REMIC Regular Interest: Any of the Class L1 Interest,
Class L2 Interest, Class L3 Interest, Class L4 Interest, Class L5 Interest,
Class L6 Interest and Class L7 Interest.
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.
Market Street: Market Street Mortgage Corporation, and its
successors and assigns, in its capacity as seller of the Market Street Mortgage
Loans.
Market Street Loan Sale Date: The date that the Market Street Loans
were transferred to the Transferor as set forth on the Mortgage Loan Schedule
under the heading "Loan Sale Date."
Market Street Mortgage Loans: The Mortgage Loans for which Market
Street is listed as "Originator" on the Mortgage Loan Schedule.
Market Street Purchase and Servicing Agreement: The Master Seller's
Purchase Agreement, Warranties and Interim Servicing dated as of August 1, 2002,
between GMACM, as purchaser, and Market Street, as seller, as the same may be
amended from time to time.
Master Servicer: Xxxxx Fargo Bank Minnesota, N.A., a national
banking association, and its successors and assigns, in its capacity as Master
Servicer hereunder.
Master Servicer Event of Termination: As defined in Section 7.01
hereof.
Master Servicing Compensation: (a) All investment earnings on
amounts on deposit in the Collection Account and the Distribution Account (other
than the WMMSC Investment Earnings Amount) plus, (b) with respect to the Xxxxx
Fargo Serviced Mortgage Loans, an additional fee equal to (i) the Master
Servicing Fee Rate multiplied by (ii) the principal balance of the Xxxxx Fargo
Serviced Mortgage Loans as of the Due Date in the month preceding the month in
which the related Distribution Date occurs.
Master Servicing Fee: As to each of the Xxxxx Fargo Serviced
Mortgage Loans and any Distribution Date, an amount payable out of interest
payable on such Mortgage Loan and equal to one-twelfth of the Master Servicing
Fee Rate multiplied by the 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 with respect to the Xxxxx Fargo Serviced Mortgage
Loans in an amount not to exceed the Master Servicing Fee.
Master Servicing Fee Rate: With respect to the Xxxxx Fargo Serviced
Mortgage Loans, 0.03%.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MBIA: MBIA Insurance Corporation, a New York-domiciled stock
insurance company, or any successor thereto.
MBIA Contact Person: The officer designated by the Master Servicer
to provide information to MBIA pursuant to Section 4.06(g). The initial MBIA
Contact Person is appointed in Section 4.06.
MBIA Default: The existence and continuance of any of the following:
(a) MBIA fails to make a payment required under the Policy in
accordance with its terms;
(b) MBIA (1) files any petition or commences any case or proceeding
under any provision or similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (2)
makes a general assignment for the benefit of its creditors, or (3) has an
order for relief entered against it under the United States Bankruptcy
Code or any similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization which is final
and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority enters a final and
nonappealable order, judgment or decree (1) appointing a custodian,
trustee, agent or receiver for MBIA or for all or any material portion of
its property or (2) authorizing the taking of possession by a custodian,
trustee, agent or receiver of MBIA (or the taking of possession of all or
any material portion of the property of MBIA).
MERS: As defined in Section 2.01.
Middle-Tier REMIC: As described in the Preliminary Statement.
Middle-Tier REMIC Interest: Any one of the Middle-Tier REMIC Regular
Interests or Class MR Interest.
Middle-Tier REMIC Regular Interest: Any of the Class A-1-M Interest,
Class A-1A-M Interest, Class A-2-M Interest, Class A-3-M, Class A-3A-M Interest,
Class A-4-M Interest, Class A-5-M Interest, Class A-6-M Interest, Class A-7-M
Interest, Class A-IO-M Interest, Class M-1-M Interest, Class M-2-M Interest and
Class B-M Interest.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.04.
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 the Trustee, Depositor and the Master Servicer.
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 Master Servicer to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of November 1, 2002, between the Transferor and the
Depositor.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer 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 Stated 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 Stated 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 and
the Lender-Paid Mortgage Insurance Rate; (24) the Servicing Fee Rate; (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) a code indicating the Originator of the Mortgage Loan; (29) the Loan
Sale Date; and (30) the initial Servicer.
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 in the Mortgage Loan Schedule, notwithstanding foreclosure
or other acquisition of title of the related Mortgaged Property.
Mortgage Network: Mortgage Network, Inc., a and its successors and
assigns, in its capacity as seller of the Mortgage Network Mortgage Loans to the
Transferor.
Mortgage Network Loan Sale Date: The date that the Mortgage Network
Loans were transferred to the Transferor as set forth on the Mortgage Loan
Schedule under the heading "Loan Sale Date."
Mortgage Network Mortgage Loans: The Mortgage Loans for which
Mortgage Network is listed as "Originator" on the Mortgage Loan Schedule.
Mortgage Network Purchase and Servicing Agreement: The Master
Seller's Purchase, Warranties and Interim Servicing Agreement, dated as of
November 1, 2002, between the Transferor, as purchaser, and Mortgage Network, as
seller, as the same may be amended from time to time.
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.
National City: National City Mortgage Corporation, an Ohio
corporation, and its successors and assigns, in its capacity as Servicer of the
National City Mortgage Loans to the Transferor.
National City Loan Sale Date: The date that the National City
Mortgage Loans were transferred to the Transferor as set forth on the Mortgage
Loan Schedule under the heading "Loan Sale Date."
National City Mortgage Loans: The Mortgage Loans for which National
City is listed as "Servicer" on the Mortgage Loan Schedule.
National City Purchase and Servicing Agreement: Solely with respect
to the National City Mortgage Loans, the Master Seller's Warranties and
Servicing Agreement, dated as of October 1, 2001, between the Transferor and
National City, as the same may be amended from time to time.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the Expense Fee Rate.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the amount of Compensating Interest for such
Distribution Date.
Net WAC Rate: With respect to the Certificates (other than the Class
A-IO Certificates) and the Corresponding Middle-Tier REMIC Regular Interests,
(i) from the December 2002 Distribution Date up to and including the November
2005 Distribution Date, a per annum rate equal to (1) the weighted average of
the Net Mortgage Rates of the Mortgage Loans then in effect on the first day of
the related Due Period (and with respect to the Class A-7 Certificates only,
minus the Policy Premium Rate, and with respect to the Class A-7-M Interest only
minus two times the Policy Premium Rate) minus (2) the sum of (A) the then
applicable Pass-Through Rate for the Class A-IO Certificates for such
Distribution Date and (B) for the first through fourth Distribution Dates,
1.3333333333% per annum, multiplied by a fraction, the numerator of which is (x)
the Class A-IO Notional Amount immediately prior to such Distribution Date, and
the denominator of which is (y) the aggregate principal balance of the Mortgage
Loans as of the first day of the related Due Period and (ii) for each
Distribution Date thereafter, the weighted average of the Net Mortgage Rates of
the Mortgage Loans then in effect on the first day of the related Due Period
(and with respect to the Class A-7 Certificates only, minus the Policy Premium
Rate), with clauses (i) and (ii) above multiplied by, in the case of the Class
A-1 or Class A-1A Certificates, a fraction equal to 30 divided by the number of
days in the related Accrual Period.
With respect to the Class A-IO Certificates and the Corresponding
Middle-Tier REMIC Regular Interest, a per annum rate equal to (1) the weighted
average of the Net Mortgage Rates of the Mortgage Loans then in effect on the
first day of the related Due Period minus (2) for the first through fourth
Distribution Dates, 1.3333333333% per annum.
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.
Notice of Nonpayment: The notice to be delivered by the Trustee to
MBIA with respect to any date as to which a claim for an Insured Payment shall
be made, which shall be in the form attached to the Policy.
Notional Amount: means, with respect to any Distribution Date and
the Class A-IO Certificates, an amount equal to the lesser of (i) the aggregate
principal balance of the Mortgage Loans (prior to giving effect to scheduled
payments of principal due during the related Due Period and unscheduled
collections of principal received during the related Prepayment Period) and (ii)
the amount set forth in the table below:
DISTRIBUTION DATE NOTIONAL AMOUNT
----------------------------------------------------------- ---------------
Up to and including May 2003 .............................. $135,000,000
June 2003 to and including November 2003 .................. $120,000,000
December 2003 to and including May 2004 ................... $100,000,000
June 2004 to and including November 2004 .................. $ 85,000,000
December 2004 to and including May 2005 ................... $ 65,000,000
June 2005 to and including November 2005 .................. $ 40,000,000
After November 2005 ....................................... $ 0
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.
Ohio Bank: Ohio Savings Bank, and its successors and assigns, in its
capacity as seller of the Ohio Bank Mortgage Loans to the Transferor.
Ohio Bank Loan Sale Date: The date that the Ohio Bank Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Ohio Bank Mortgage Loans: The Mortgage Loans for which Ohio Bank is
listed as "Originator" on the Mortgage Loan Schedule.
Ohio Bank Purchase and Servicing Agreement: The Master Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of February 1,
2002, between GMACM, as purchaser, and Ohio Bank, as seller, as the
same may be amended from time to time.
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.
Originator: Each of Alliance, Alterna, American Mortgage Express,
Bank of America, Cendant, Chapel, Chase, Concord, First Financial, First
Guaranty, First Horizon, Genisys, Greenpoint, Homestar, JLM, Market Street,
Mortgage Network, National City, Ohio Bank, Principal, Provident, RBC, Secured
Bankers Company, SIB, SoCal, Xxxxxx Xxxx, The Mortgage Store, Universal,
Wachovia, Wall Street Bankers and WAMU.
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 Stated 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.
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Total Monthly Excess Spread.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the Offered Certificates as of such Distribution Date (after giving effect to
the payment of the Principal Remittance Amount on such Certificates on such
Distribution 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.
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;
(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;
(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 (or in
the case of the principal depository institution in a holding company
system, the commercial paper or long-term unsecured debt obligations of
such holding company) 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 rating then assigned to the Certificates by either 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;
(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;
(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;
(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); 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, 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 the Upper-Tier REMIC, Middle-Tier REMIC or Lower-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.
Policy: The irrevocable MBIA Insurance Policy No. 39710, including
any endorsements thereto, issued by MBIA with respect to the Class A-7
Certificates, in the form attached hereto as Exhibit N.
Policy Payment Account: The account maintained pursuant to Section
4.06(b).
Policy Premium Rate: A rate equal to 0.07% per annum.
Pool Principal Balance: As to any Distribution Date, the aggregate
of the Stated 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.
Preference Amount: Any amount previously distributed to a Class A-7
Certificateholder on the Class A-7 Certificates that is recoverable and sought
to be recovered as a voidable preference by a trustee in bankruptcy pursuant to
the Bankruptcy Code in accordance with a final nonappealable order of a court
having competent jurisdiction.
Premium Distribution Amount: As to any Distribution Date, an amount
equal to the sum of (i) the Premium Payment and (ii) any Premium Unpaid
Shortfall.
Premium Payment: For any Distribution Date, the product of Policy
Premium Rate and the Class Principal Balance of the Class A-7 Certificates prior
to any distributions thereon. For federal income tax purposes, the Premium
Payment shall be treated as an expense of the Middle-Tier REMIC.
Premium Shortfall: For any Distribution Date, the amount by which
the Premium Payment exceeds the amount of premium actually distributed to MBIA
on such Distribution Date pursuant to clause (i) of the definition of Premium
Distribution Amount.
Premium Unpaid Shortfall: As to any Distribution Date, the amount by
which the aggregate Premium Shortfalls on prior Distribution Dates exceeds the
amount of premium actually distributed to MBIA on such prior Distribution Dates
pursuant to clause (ii) of the definition of Premium Distribution Amount.
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: With respect to any Distribution
Date, for each Mortgage Loan that was during the related Prepayment Period the
subject of a Principal Prepayment that was applied by the applicable Servicer to
reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding Prepayment Period, an amount equal to
the product of (a) the Mortgage Rate net of the Servicing Fee Rate for such
Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the related
Prepayment Period.
Prepayment Period: With respect to any voluntary prepayment of a
Mortgage Loan and, as to any Distribution Date, the calendar month preceding the
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.
Principal: Principal Residential Mortgage, Inc., and its successors
and assigns, in its capacity as seller of the Principal Mortgage Loans to the
Transferor.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Loan Sale Date: The date that the Principal Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Principal Mortgage Loans: The Mortgage Loans for which Principal is
listed as "Originator" on the Mortgage Loan Schedule.
Principal Purchase and Servicing Agreement: The Master Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of August 1,
2002, between GMAC, as purchaser, and Principal, as seller, as the same may be
amended from time to time.
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 Purchase and Servicing Agreements and Principal
Prepayments in full shall be applied by the applicable Servicers 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.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each scheduled payment of principal on a
Mortgage Loan due during such Due Period and received or advanced by the
Servicer prior to the related Servicer Remittance Date (including the portion of
Insurance Proceeds or Condemnation Proceeds allocable to principal), and all
Principal Prepayments received during the related Prepayment Period, (ii) the
Liquidation Proceeds on the Mortgage Loans allocable to principal actually
collected by the Servicer during the related Prepayment Period, (iii) the
portion of the purchase price allocable to principal with respect to each
Deleted Mortgage Loan, the repurchase obligation for which arose during the
related Prepayment Period, that was repurchased during the period from the prior
Distribution Date through the Servicer Remittance Date for the current
Distribution Date, (iv) the principal portion of all Substitution Adjustment
Amounts with respect to the substitutions of Mortgage Loans that occur during
the calendar month in which such Distribution Date occurs and (v) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund (to the extent such proceeds relate to principal).
Private Certificate: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement dated November 25,
2002 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
Purchase and Servicing Agreements.
Provident: Provident Funding Associates, and its successors and
assigns, in its capacity as seller of the Provident Mortgage Loans to the
Transferor.
Provident Loan Sale Date: The date that the Provident Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Provident Mortgage Loans: The Mortgage Loans for which Provident is
listed as "Originator" on the Mortgage Loan Schedule.
Provident Purchase and Servicing Agreement: The Master Loan Purchase
and Servicing Agreement, dated as of August 1, 2002, between the Transferor, as
purchaser, and Provident, as seller, as the same may be amended from time to
time.
PUD: Planned Unit Development.
Purchase and Servicing Agreements:
(a) The Alliance Purchase and Servicing Agreement;
(b) The Alterna Purchase and Servicing Agreement;
(c) The American Express Purchase and Servicing Agreement;
(d) The Bank of America Purchase and Servicing Agreement;
(e) The Cendant Purchase and Servicing Agreement;
(f) The Chapel Purchase and Servicing Agreement;
(g) The Chase Purchase and Servicing Agreement;
(h) The Concord Purchase and Servicing Agreement;
(i) The First Financial Purchase and Servicing Agreement;
(j) The First Guaranty Purchase and Servicing Agreement;
(k) The First Horizon Purchase and Servicing Agreement;
(l) The Genisys Purchase and Servicing Agreement;
(m) The GMACM Servicing Agreement;
(n) The Greenpoint Purchase and Servicing Agreement;
(o) The Homestar Purchase and Servicing Agreement;
(p) The JLM Purchase and Servicing Agreement;
(q) The Market Street Purchase and Servicing Agreement;
(r) The Mortgage Network Purchase and Servicing Agreement;
(s) The Mortgage Store Purchase and Servicing Agreement;
(t) The National City Purchase and Servicing Agreement;
(u) The Ohio Bank Purchase and Servicing Agreement;
(v) The Principal Purchase and Servicing Agreement;
(w) The Provident Purchase and Servicing Agreement;
(x) The RBC Purchase and Servicing Agreement;
(y) The Secured Bankers Company Purchase and Servicing Agreement;
(z) The SIB Purchase and Servicing Agreement;
(aa) The SoCal Purchase and Servicing Agreement;
(bb) The Xxxxxx Xxxx Purchase and Servicing Agreement;
(cc) The Universal Purchase and Servicing Agreement;
(dd) The US Mortgage Servicing Agreement;
(ee) The Wachovia Purchase and Servicing Agreement;
(ff) The Wall Street Purchase and Servicing Agreement;
(gg) The WAMU Purchase and Servicing Agreement;
(hh) The Xxxxx Fargo Servicing Agreement; and
(ii) The WMMSC Servicing Agreement.
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, and (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.
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 and MBIA.
References herein to a given rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers.
RBC: RBC Mortgage, and its successors and assigns, in its capacity
as seller of the RBC Mortgage Loans.
RBC Loan Sale Date: The date that the RBC Mortgage Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
RBC Mortgage Loans: The Mortgage Loans for which RBC is listed as
"Originator" on the Mortgage Loan Schedule.
RBC Purchase and Servicing Agreement: The Seller's Purchase,
Warranties and Interim Servicing Agreement, dated as of June 1, 2002, between
GMACM, as purchaser, and RBC, as seller, as the same may be amended from time to
time.
Realized Losses: With respect to any date of determination and any
Liquidated Loan, the amount, if any, by which (a) the unpaid Stated Principal
Balance of such Liquidated Loan together with accrued and unpaid interest
thereon exceeds (b) the Liquidation Proceeds with respect thereto net of the
expenses incurred by the Servicer in the connection with the liquidation of such
Liquidated Loan and net of any amount of unreimbursed Servicing Advances with
respect to such Liquidated Loan.
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.
Refinancing Mortgage Loan: Any Mortgage Loan originated in
connection with the refinancing of an existing mortgage loan.
Regular Certificates: The Certificates other than the Class R
Certificates.
Reimbursement Amount: The sum of (a) the aggregate unreimbursed
amount of any payments made by MBIA under the Policy, together with interest on
such amount from the date of payment by MBIA until paid in full at a rate equal
to the Pass-Through Rate for the Class A-7 Certificates plus (b) all costs and
expenses of MBIA in connection with any action, proceeding or investigation
affecting or relating to the Trust or the rights or obligations of MBIA under
this Agreement or under the Policy, including (without limitation) reasonable
attorneys' fees and any judgment or settlement entered into affecting MBIA or
MBIA's interests, together with interest thereon at a rate equal to the
Pass-Through Rate for the Class A-7 Certificates from the date such costs and
expenses were incurred or paid by MBIA.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended or any comparable state statute (including the comparable provisions
under the California Military and Veterans Code, as amended).
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the
meaning of section 860D of the Code.
REMIC 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.
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.
Retained Spread: With respect to each Distribution Date to and
including the Distribution Date in March 2003, an amount equal to one month's
interest at a rate equal to 1.3333333333% per annum on a notional amount equal
to the lesser of (i) $135,000,000 and (ii) the aggregate principal balance of
the Mortgage Loans (prior to giving effect to scheduled payments of principal
due during the related Due Period and unscheduled collections of principal
received during the related Prepayment Period).
S&P: Standard & 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 & Poor's, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Mortgage Surveillance Monitoring, or such other
address as S&P may hereafter furnish to the Trustee, Depositor and the Master
Servicer.
Secured Bankers Company: Secured Bankers Mortgage Company, and its
successors and assigns, in its capacity as seller of the Secured Bankers Company
Mortgage Loans.
Secured Bankers Company Loan Sale Date: The date that the Secured
Bankers Company Loans were transferred to the Transferor as set forth on the
Mortgage Loan Schedule under the heading "Loan Sale Date."
Secured Bankers Company Loans: The Mortgage Loans for which Secured
Bankers Company is listed as "Originator" on the Mortgage Loan Schedule.
Secured Bankers Company Purchase and Servicing Agreement: The Master
Seller's Purchase, Warranties and Interim Servicing Agreement dated as of July
1, 2002, between GMACM, as purchaser, and Secured Bankers Company, as seller, as
the same may be amended from time to time.
Securities Act: The Securities Act of 1933, as amended.
Senior Certificates: As specified in the Preliminary Statement.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 10.70%.
Servicer: Each of Bank of America, Cendant, Chase, First Horizon,
GMACM, National City, US Mortgage, WAMU, WMMSC and Xxxxx Fargo, as applicable.
Servicer Remittance Date: With respect any Servicer (other than
Cendant and WMMSC) and any Distribution Date, the 18th day of each calendar
month, or if such 18th day is not a Business Day, either the immediately
preceding Business Day or the immediately succeeding Business Day, as the case
may be. With respect to Cendant and 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 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
outstanding 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.
SIB: SIB Mortgage Corp., and its successors and assigns, in its
capacity as seller of the SIB Mortgage Loans to the Transferor.
SIB Loan Sale Date: The date that the SIB Loans were transferred to
the Transferor as set forth on the Mortgage Loan Schedule under the heading
"Loan Sale Date."
SIB Mortgage Loans: The Mortgage Loans for which SIB is listed as
"Originator" on the Mortgage Loan Schedule.
SIB Purchase and Servicing Agreement: The Master Seller's Purchase,
Warranties and Interim Servicing Agreement, dated as of September 1, 2002,
between the Transferor, as purchaser, and SIB, as seller, as the same may be
amended from time to time.
Similar Law: As defined in Section 5.02(b) hereof.
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Monthly Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 0.50% of the Cut-off Date Pool Balance. On and after the
Stepdown Date, an amount equal to 1.00% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of Offered Certificates has been reduced
to zero, to a minimum amount equal to 0.50% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date; provided, however, that
if, on any Distribution Date, a Trigger Event has occurred, the Specified
Overcollateralized Amount shall not be reduced to the applicable percentage of
the then current aggregate Stated Principal Balance of the Mortgage Loans until
the Distribution Date on which a Trigger Event is no longer occurring.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Trustee with respect to
the related Mortgage Loan representing payments or recoveries of principal
including advances in respect of scheduled payments of principal; provided,
however, that the principal balance of any Liquidated Loan shall be assumed to
be zero. For purposes of any Distribution Date, the Stated Principal Balance of
any Mortgage Loan will give effect to any scheduled payments of principal
received or advanced on or prior to the related Servicer Remittance Date and any
unscheduled principal payments and other unscheduled principal collections
received during the related Prepayment Period.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
November 2005, and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
SoCal: Kirkwood Financial Corporation d/b/a SoCal Loan, and its
successors and assigns, in its capacity as seller of the SoCal Mortgage Loans to
the Transferor.
SoCal Loan Sale Date: The date that SoCal Loans were transferred to
the Transferor as set forth on the Mortgage Loan Schedule under the heading
"Loan Sale Date."
SoCal Mortgage Loans: The Mortgage Loans for which SoCal is listed
as "Originator" on the Mortgage Loan Schedule.
SoCal Purchase and Servicing Agreement: The Master Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as September 1,
2002, between the Transferor, as purchaser, and SoCal, as seller, as the same
may be amended from time to time.
Subordinated Certificates: As specified in the Preliminary
Statement.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03.
Tax Matters Person: The Holder of the Class R Certificates
designated as "tax matters person" of each of the Lower-Tier REMIC, Middle-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.
Xxxxxx Xxxx: Xxxxxx, Xxxx & Xxxxxxxx Corp., and its successors and
assigns, in its capacity as seller of the Xxxxxx Xxxx Mortgage Loans.
Xxxxxx Xxxx Loan Sale Date: The date that the Xxxxxx Xxxx Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Xxxxxx Xxxx Mortgage Loans: The Mortgage Loans for which Xxxxxx Xxxx
is listed as "Originator" on the Mortgage Loan Schedule.
Xxxxxx Xxxx Purchase and Servicing Agreement: The Seller's Purchase,
Warranties and Interim Servicing Agreement, dated as of May 1, 2002, between
GMACM, as purchaser, and Xxxxxx Xxxx, as seller, as the same may be amended from
time to time.
The Mortgage Store: The Mortgage Store, a California Corporation,
and its successors and assigns, in its capacity as seller of The Mortgage Store
Mortgage Loans to the Transferor.
The Mortgage Store Loan Sale Date: The date that The Mortgage Store
Loans were transferred to the Transferor as set forth on the Mortgage Loan
Schedule under the heading "Loan Sale Date."
The Mortgage Store Mortgage Loans: The Mortgage Loans for which The
Mortgage Store is listed as "Originator" on the Mortgage Loan Schedule.
The Mortgage Store Purchase and Servicing Agreement: The Master
Seller's Purchase, Warranties and Interim Servicing Agreement, dated as of
September 1, 2002, between the Transferor, as purchaser, and The Mortgage Store,
as seller, as the same may be amended from time to time.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the Servicer
Remittance Date) or advanced on the Mortgage Loans for Due Dates in the related
Due Period (net of the Servicing Fee) over (ii) the sum of (a) the interest
payable to the Classes of Certificates and Premium Payment payable to MBIA on
such Distribution Date pursuant to Section 4.02(a) and (b) the amount of
Retained Spread for such Distribution Date.
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.
Trigger Event: After the Stepdown Date, a Trigger Event exists if
(i) the quotient (expressed as a percentage) of (x) the rolling three month
average of the outstanding principal balances of 60+ Day Delinquent Mortgage
Loans, (including each Mortgage Loan in Foreclosure, each Mortgage Loan for
which the related Mortgagor has filed for bankruptcy after the Closing date and
each Mortgage Loan related to a REO Property), divided by (y) the aggregate
outstanding principal balance of the Mortgage Loans equals or exceeds 50% of the
prior period's Senior Enhancement Percentage or (ii) the quotient (expressed as
a percentage) of (x) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the related Prepayment Period divided by
(y) the Cut-off Date Pool Balance exceeds the applicable percentages set forth
below with respect to any Distribution Date:
DISTRIBUTION DATE OCCURRING IN LOSS PERCENTAGE
------------------------------------------------------------ ---------------
December 2005 through November 2006 0.5%
December 2006 through November 2007 0.9%
December 2007 through November 2008 1.0%
December 2008 through November 2009 1.2%
December 2009 and thereafter 1.3%
Trust: As defined in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of:
(a) the Mortgage Loan Purchase Agreement, the Assignment Agreements, the
Purchase and Servicing Agreements (other than any rights of the Depositor to
indemnification by any Originator with respect to breaches of representations
and warranties made by such Originator therein, which indemnification provisions
are set forth in: (i) with respect to Alliance, Section 3.3 of the Alliance
Purchase and Servicing Agreement, (ii) with respect to Alterna Section 5.01
(with respect to indemnity for the seller's breaches of representations and
warranties regarding the Alterna Mortgage Loans only) of the Alterna Purchase
and Servicing Agreement, (iii) with respect to America Mortgage Express, Section
5.01 (with respect to the indemnity for seller's breaches of representations and
warranties regarding the American Mortgage Express Mortgage Loans only) of the
American Mortgage Express Purchase and Servicing Agreement, (iv) with respect to
Bank of America, Section 7.03 of the Bank of America Purchase and Servicing
Agreement, (v) with respect to Cendant, Sections 3.04 and 9.01(i) of the Cendant
Purchase and Servicing Agreement, (vi) with respect to Chase, Section 8.01 (with
respect to indemnity for the seller's breaches of representations and warranties
regarding the Chase Mortgage Loans only) of the Chase Purchase and Servicing
Agreement, (vii) with respect to Chapel, Section 5.01 (with respect to indemnity
for the seller's breaches of representations and warranties regarding the Chapel
Mortgage Loans only) of the Chapel Purchase and Servicing Agreement, (viii) with
respect to Concord, Section 5.01 (with respect to indemnity for the seller's
breaches of representations and warranties regarding the Concord Mortgage Loans
only) of the Concord Purchase and Servicing Agreement, (ix) with respect to
First Horizon, Sections 7.03 and 13.01 (with respect to indemnity for the
seller's breaches of representations and warranties regarding the First Horizon
Mortgage Loans only) of the First Horizon Purchase and Servicing Agreement, (x)
with respect to First Financial, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding First Financial
Mortgage Loans only) of First Financial Purchase and Servicing Agreement, (xi)
with respect to First Guaranty, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding the First Guaranty
Mortgage Loans only) of the First Guaranty Purchase and Servicing Agreement,
(xii) with respect to Genisys, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding the Genisys
Mortgage Loans only) of the Genisys Purchase and Servicing Agreement, (xiii)
with respect to Greenpoint, Section 3.3 of the Greenpoint Purchase and Servicing
Agreement, (xiv) with respect to Homestar, Sections 3.3 of the Homestar Purchase
and Servicing Agreement, (xv) with respect to JLM, Section 5.01 (with respect to
the indemnity for seller's breaches of representations and warranties regarding
the JLM Mortgage Loans only) of the JLM Purchase and Servicing Agreement, (xvi)
with respect to Market Street, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding the Market Street
Mortgage Loans only) of the Market Street Purchase and Servicing Agreement,
(xvii) with respect to Mortgage Network, Section 5.01 (with respect to the
indemnity for seller's breaches of representations and warranties regarding the
Mortgage Network Mortgage Loans only) of the Mortgage Network Purchase and
Servicing Agreement, (xviii) with respect to National City, Sections 3.03 and
9.01 (with respect to the indemnity for seller's breaches of representations and
warranties regarding the National City Mortgage Loans only) of the National City
Purchase and Servicing Agreement, (xix) with respect to Ohio Bank, Section 7.01
(with respect to the indemnity for seller's breaches of representations and
warranties regarding the Ohio Bank Mortgage Loans only) of the Ohio Bank
Purchase and Servicing Agreement, (xx) with respect to Principal, Section 5.01
(with respect to the indemnity for seller's breaches of representations and
warranties regarding the Principal Mortgage Loans only) of the Principal
Purchase and Servicing Agreement, (xxi) with respect to Provident, Sections 7.03
and 13.01 (with respect to the indemnity for seller's breaches of
representations and warranties regarding the Provident Mortgage Loans only) of
the Provident Purchase and Servicing Agreement, (xxii) with respect to RBC,
Section 5.01 (with respect to the indemnity for seller's breaches of
representations and warranties regarding the RBC Mortgage Loans only) of the RBC
Purchase and Servicing Agreement, (xxiii) with respect to Secured Bankers
Company, Section 5.01 (with respect to the indemnity for seller's breaches of
representations and warranties regarding the Secured Bankers Company Mortgage
Loans only) of the Secured Bankers Company Purchase and Servicing Agreement,
(xxiv) with respect to SIB, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding the SIB Mortgage
Loans only) of the SIB Purchase and Servicing Agreement, (xxv) with respect to
Xxxxxx Xxxx, Section 5.01 (with respect to the indemnity for seller's breaches
of representations and warranties regarding the Xxxxxx Xxxx Mortgage Loans only)
of the Xxxxxx Xxxx Purchase and Servicing Agreement, (xxvi) with respect to The
Mortgage Store, Section 5.01 (with respect to the indemnity for seller's
breaches of representations and warranties regarding the Mortgage Store Mortgage
Loans only) of the Mortgage Store Purchase and Servicing Agreement, (xxvii) with
respect to Universal, Section 5.01 (with respect to the indemnity for seller's
breaches of representations and warranties regarding the Universal Mortgage
Loans only) of the Universal Purchase and Servicing Agreement, (xxviii) with
respect to SoCal, Section 5.01 (with respect to the indemnity for seller's
breaches of representations and warranties regarding the SoCal Mortgage Loans
only) of the SoCal Purchase and Servicing Agreement, (xxix) with respect to
Wachovia, Section 3.3 of the Wachovia Purchase and Servicing Agreement, (xxx)
with respect to Wall Street Bankers, Section 5.01 (with respect to the indemnity
for seller's breaches of representations and warranties regarding the Wall
Street Bankers Mortgage Loans only) of the Wall Street Bankers Purchase and
Servicing Agreement and (xxxi) with respect to WAMU, Section 3.3 of the WAMU
Purchase and Servicing Agreement, and which rights shall, in each case, be
retained by the Depositor); (b) 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; (c)
the Collection Account, the Distribution Account, the Excess Reserve Fund
Account, the Yield Maintenance Reserve Account all amounts deposited therein
pursuant to the applicable provisions of this Agreement; (d) property that
secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu of
foreclosure or otherwise; (e) the Yield Maintenance Agreement and (f) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
Trustee: Bank One, N.A., a national banking association, and its
successors and, if a successor trustee is appointed hereunder, such successor.
Universal: Universal American Mortgage Company, and its successors
and assigns, in its capacity as seller of the Universal Mortgage Loans to the
Transferor.
Universal Loan Sale Date: The date that the Universal Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Universal Mortgage Loans: The Mortgage Loans for which Universal is
listed as "Originator" on the Mortgage Loan Schedule.
Universal Purchase and Servicing Agreement: The Seller's Purchase,
Warranties and Interim Servicing Agreement, dated as of May 1, 2002, between
GMACM, as purchaser, and Universal, as seller, as the same may be amended from
time to time.
Unpaid Interest Amounts: As of any Distribution Date and any Class
of Certificates, the sum of (a) the excess of (x) the portion of the Accrued
Certificate Interest from prior Distribution Dates remaining unpaid over (y) the
amount in respect of interest on that Class of Certificates actually distributed
on the preceding Distribution Date and (b) interest on such unpaid amount at the
applicable Pass-Through Rate (to the extent permitted by applicable law).
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC Interest: Any one of the Upper-Tier REMIC Regular
Interests or Class A-UR Interest.
Upper-Tier REMIC Regular Interest: Any of the REMIC regular
interests represented by the Class A-1 Certificates, Class A-1A Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-3A Certificates, Class
A-4 Certificates, Class A-5 Certificates, Class A-6 Certificates, Class A-7
Certificates, Class M-1 Certificates, Class M-2 Certificates, Class B
Certificates, Class C Certificates and Class A-IO Certificates as described in
the Preliminary Statement.
US Mortgage: US Mortgage, and its successors and assigns, in its
capacity as seller of the US Mortgage Loans to the Transferor.
US Mortgage Loan Sale Date: The date that the US Mortgage Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
US Mortgage Loans: The Mortgage Loans for which US Mortgage is
listed as "Servicer" on the Mortgage Loan Schedule.
US Mortgage Servicing Agreement: Solely with respect to the US
Mortgage Loans, the Servicing Agreement, dated as of September 1, 2002, between
the Transferor and US Mortgage, as the same may be amended from time to time,
and any assignment and conveyance related to the US Mortgage Loans.
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, (a) the Interest Only Certificates will be entitled to 1% in the
aggregate of all Voting Rights (such Voting Rights to be allocated among the
Holders of Certificates of each such Class in accordance with their respective
Percentage Interests), and (b) the remaining Voting Rights (and the Voting
Rights allocated to the Interest Only Certificates if there are no Interest Only
Certificates) 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.
For so long as no MBIA Default has occurred and is continuing, MBIA
shall be entitled to exercise on behalf of the Holders of the Class A-7
Certificates the Voting Rights of such Class unless MBIA has consented in
writing to the exercise of such Voting Rights by such Holders.
Wachovia: Wachovia Mortgage Corporation, and its successors and
assigns, in its capacity as seller of the Wachovia Mortgage Loans.
Wachovia Loan Sale Date: The date that the Wachovia Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
Wachovia Mortgage Loans: The Mortgage Loans for which Wachovia is
listed as "Originator" on the Mortgage Loan Schedule.
Wachovia Purchase and Servicing Agreement: The Mortgage Loan Sale
and Servicing Transfer Agreement, dated as of July 1, 2002, between Xxxxx Fargo
Funding, Inc., as purchaser, and Wachovia, as seller, as the same may be amended
from time to time.
Wall Street Bankers: Wall Street Bankers, and its successors and
assigns, in its capacity as seller of the Wall Street Bankers Mortgage Loans to
the Transferor.
Wall Street Bankers Loan Sale Date: The date that the Wall Street
Bankers Loans were transferred to the Transferor as set forth on the Mortgage
Loan Schedule under the heading "Loan Sale Date."
Wall Street Bankers Mortgage Loans: The Mortgage Loans for which
Wall Street Bankers is listed as "Originator" on the Mortgage Loan Schedule.
Wall Street Purchase and Servicing Agreement: The Master Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of September 1,
2002, between the Transferor, as purchaser, and Wall Street Bankers, as seller,
as the same may be amended from time to time.
WAMU: Washington Mutual Bank, FA, and its successors and assigns, in
its capacity as Servicer of the WAMU Mortgage Loans.
WAMU Loan Sale Date: The date that the WAMU Mortgage Loans were
transferred to the Transferor as set forth on the Mortgage Loan Schedule under
the heading "Loan Sale Date."
WAMU Mortgage Loans: The Mortgage Loans for which WAMU is listed as
"Servicer" on the Mortgage Loan Schedule.
WAMU Purchase and Servicing Agreement: Solely with respect to the
WAMU Mortgage Loans, the Mortgage Loan Purchase and Sale Agreement, dated as of
June 1, 2002 between the Transferor and WAMU as the same may be amended from
time to time.
Xxxxx Fargo: Xxxxx Fargo Home Mortgage, Inc. and its successors and
assigns, in its capacity as Servicer of the Xxxxx Fargo Serviced Mortgage Loans.
Xxxxx Fargo Serviced Mortgage Loans: The Mortgage Loans serviced by
Xxxxx Fargo pursuant to the Xxxxx Fargo Servicing Agreement as set forth on the
Mortgage Loan Schedule as of the Closing Date.
Xxxxx Fargo Servicing Agreement: The Seller's Warranties and
Servicing Agreement, dated as of July 1, 2002, between the Transferor and Xxxxx
Fargo, as the same may be amended from time to time.
WMMSC: Washington Mutual Mortgage Securities Corp., and its
successors and assigns, in its capacity as Servicer of the WMMSC Mortgage Loans
to the Transferor.
WMMSC Investment Earnings Amount: With respect to any Distribution
Date, an amount equal to the investment earnings 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 WAMU 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 (viii) of Section 2.6(b) of the
WMMSC Servicing Agreement.
WMMSC Mortgage Loans: The Mortgage Loans serviced by WMMSC pursuant
to the WMMSC Securities Servicing Agreement as set forth on the Mortgage Loan
Schedule as of the Closing Date.
WMMSC Servicing Agreement: Solely with respect to the WMMSC Mortgage
Loans, the Mortgage Loan Purchase Agreement, dated as of August 1, 2002, between
the Transferor, as purchaser, and WMMSC, as seller and servicer, as the same may
be amended from time to time.
Yield Maintenance Agreement: The interest rate cap agreement between
the Trustee, on behalf of the Trust, and the Yield Maintenance Agreement
Provider substantially in the form attached hereto as Exhibit M. The Yield
Maintenance Agreement shall not be an asset of any REMIC formed under this
Agreement.
Yield Maintenance Agreement Payment: Beginning on the first
Distribution Date and on each Distribution Date thereafter through the
Distribution Date in July 2005, the amount equal to the product of (a) the
number of basis points by which One-Month LIBOR exceeds 6.000% and (b) the
product of the Yield Maintenance Notional Amount for that Distribution Date,
calculated on the basis of the actual number of days in the related Interest
Accrual Period and on a 360-day year.
Yield Maintenance Agreement Provider: UBS AG, London Branch and any
successor thereto.
Yield Maintenance Notional Amount: With respect to any Distribution
Date, the amount set forth Schedule III of this Agreement for such Distribution
Date.
Yield Maintenance Reserve Account: The separate Eligible Account or
Accounts created and maintained by the Trustee pursuant to Section 3.07 with a
depository institution in the name of the Trustee on behalf of
Certificateholders and designated "Bank One, N.A., in trust for the registered
holders of Mortgage Asset Securitization Transactions, Inc., MASTR Alternative
Loan Trust 2002-3, Mortgage Pass-Through Certificates Series 2002-3." The Yield
Maintenance Reserve Account shall not be an asset of any REMIC formed under this
Agreement.
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
Assignment Agreements and 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 Purchase and
Servicing Agreement (other than any rights of the Depositor to indemnification
by an Originator with respect to breaches of representations and warranties made
by such Originator therein, which indemnification provisions are set forth in:
(i) with respect to Alliance, Section 3.3 of the Alliance Purchase and Servicing
Agreement, (ii) with respect to Alterna Section 5.01 (with respect to indemnity
for the seller's breaches of representations and warranties regarding the
Alterna Mortgage Loans only) of the Alterna Purchase and Servicing Agreement,
(iii) with respect to America Mortgage Express, Section 5.01 (with respect to
the indemnity for seller's breaches of representations and warranties regarding
the American Mortgage Express Mortgage Loans only) of the American Mortgage
Express Purchase and Servicing Agreement, (iv) with respect to Bank of America,
Section 7.03 of the Bank of America Purchase and Servicing Agreement, (v) with
respect to Cendant, Sections 3.04 and 9.01(i) of the Cendant Purchase and
Servicing Agreement, (vi) with respect to Chase, Section 8.01 (with respect to
indemnity for the seller's breaches of representations and warranties regarding
the Chase Mortgage Loans only) of the Chase Purchase and Servicing Agreement,
(vii) with respect to Chapel, Section 5.01 (with respect to indemnity for the
seller's breaches of representations and warranties regarding the Chapel
Mortgage Loans only) of the Chapel Purchase and Servicing Agreement, (viii) with
respect to Concord, Section 5.01 (with respect to indemnity for the seller's
breaches of representations and warranties regarding the Concord Mortgage Loans
only) of the Concord Purchase and Servicing Agreement, (ix) with respect to
First Horizon, Sections 7.03 and 13.01 (with respect to indemnity for the
seller's breaches of representations and warranties regarding the First Horizon
Mortgage Loans only) of the First Horizon Purchase and Servicing Agreement, (x)
with respect to First Financial, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding First Financial
Mortgage Loans only) of First Financial Purchase and Servicing Agreement, (xi)
with respect to First Guaranty, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding the First Guaranty
Mortgage Loans only) of the First Guaranty Purchase and Servicing Agreement,
(xii) with respect to Genisys, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding the Genisys
Mortgage Loans only) of the Genisys Purchase and Servicing Agreement, (xiii)
with respect to Greenpoint, Section 3.3 of the Greenpoint Purchase and Servicing
Agreement, (xiv) with respect to Homestar, Sections 3.3 of the Homestar Purchase
and Servicing Agreement, (xv) with respect to JLM, Section 5.01 (with respect to
the indemnity for seller's breaches of representations and warranties regarding
the JLM Mortgage Loans only) of the JLM Purchase and Servicing Agreement, (xvi)
with respect to Market Street, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding the Market Street
Mortgage Loans only) of the Market Street Purchase and Servicing Agreement,
(xvii) with respect to Mortgage Network, Section 5.01 (with respect to the
indemnity for seller's breaches of representations and warranties regarding the
Mortgage Network Mortgage Loans only) of the Mortgage Network Purchase and
Servicing Agreement, (xviii) with respect to National City, Sections 3.03 and
9.01 (with respect to the indemnity for seller's breaches of representations and
warranties regarding the National City Mortgage Loans only) of the National City
Purchase and Servicing Agreement, (xix) with respect to Ohio Bank, Section 7.01
(with respect to the indemnity for seller's breaches of representations and
warranties regarding the Ohio Bank Mortgage Loans only) of the Ohio Bank
Purchase and Servicing Agreement, (xx) with respect to Principal, Section 5.01
(with respect to the indemnity for seller's breaches of representations and
warranties regarding the Principal Mortgage Loans only) of the Principal
Purchase and Servicing Agreement, (xxi) with respect to Provident, Sections 7.03
and 13.01 (with respect to the indemnity for seller's breaches of
representations and warranties regarding the Provident Mortgage Loans only) of
the Provident Purchase and Servicing Agreement, (xxii) with respect to RBC,
Section 5.01 (with respect to the indemnity for seller's breaches of
representations and warranties regarding the RBC Mortgage Loans only) of the RBC
Purchase and Servicing Agreement, (xxiii) with respect to Secured Bankers
Company, Section 5.01 (with respect to the indemnity for seller's breaches of
representations and warranties regarding the Secured Bankers Company Mortgage
Loans only) of the Secured Bankers Company Purchase and Servicing Agreement,
(xxiv) with respect to SIB, Section 5.01 (with respect to the indemnity for
seller's breaches of representations and warranties regarding the SIB Mortgage
Loans only) of the SIB Purchase and Servicing Agreement, (xxv) with respect to
Xxxxxx Xxxx, Section 5.01 (with respect to the indemnity for seller's breaches
of representations and warranties regarding the Xxxxxx Xxxx Mortgage Loans only)
of the Xxxxxx Xxxx Purchase and Servicing Agreement, (xxvi) with respect to The
Mortgage Store, Section 5.01 (with respect to the indemnity for seller's
breaches of representations and warranties regarding the Mortgage Store Mortgage
Loans only) of the Mortgage Store Purchase and Servicing Agreement, (xxvii) with
respect to Universal, Section 5.01 (with respect to the indemnity for seller's
breaches of representations and warranties regarding the Universal Mortgage
Loans only) of the Universal Purchase and Servicing Agreement, (xxviii) with
respect to SoCal, Section 5.01 (with respect to the indemnity for seller's
breaches of representations and warranties regarding the SoCal Mortgage Loans
only) of the SoCal Purchase and Servicing Agreement, (xxix) with respect to
Wachovia, Section 3.3 of the Wachovia Purchase and Servicing Agreement, (xxx)
with respect to Wall Street Bankers, Section 5.01 (with respect to the indemnity
for seller's breaches of representations and warranties regarding the Wall
Street Bankers Mortgage Loans only) of the Wall Street Bankers Purchase and
Servicing Agreement and (xxxi) with respect to WAMU, Section 3.3 of the WAMU
Purchase and Servicing Agreement, and which rights shall, in each case, be
retained by the Depositor).
(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
Master Servicer, 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: "Bank One, N.A., in trust for the MASTR Alternative Loan
Trust 2002-3 for the benefit of the Holders of the Mortgage Pass-Though
Certificates, Series 2002-3" 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 ensure that the
applicable Servicer takes all actions as are necessary 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 Master Servicer or the Depositor by the applicable title insurer in
the case of clause (v) above, the Depositor shall promptly deliver to the Master
Servicer, 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 Master Servicer 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 Master Servicer (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 Master Servicer. 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 Master Servicer 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
Master Servicer 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 Master Servicer 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 that the related Servicer need not cause to be recorded any
assignment which relates to a Mortgage Loan (a) the Mortgaged Property and
Mortgage File relating to which are located in California or (b) in any other
jurisdiction under the laws of which an Opinion of Counsel has been delivered to
the Trustee stating the recordation of such assignment is not necessary to
protect the Trustee's and the Certificateholders' interest in the related
Mortgage Loan.
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 Alternative Loan
Trust 2002-3" and Bank One, N.A. is hereby appointed as Trustee in accordance
with the provisions of this Agreement.
Section 2.02 Acceptance by Trustee of the Mortgage Loans.
The Master Servicer, on behalf of the Trustee, acknowledges receipt
of the documents identified in the Initial Certification in the form annexed
hereto as Exhibit F (unless the related Mortgage has been registered in the name
of MERS or its designee) and declares that it holds and will hold such documents
and the other documents delivered to it constituting the Mortgage Files, and
each of the Master Servicer 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. The
Master Servicer acknowledges that it will maintain possession of the Mortgage
Notes in the State of Minnesota, unless otherwise permitted by the Rating
Agencies and the Trustee.
The Master Servicer 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, the Master Servicer
acknowledges, subject to any applicable exceptions noted on Exhibit F, that such
documents appear regular on their face and relate to such Mortgage Loan. The
Master Servicer shall be under no 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, the Master Servicer
shall deliver to the Depositor, the Trustee, MBIA and the Transferor a Final
Certification in the form annexed hereto as Exhibit G, with any applicable
exceptions noted thereon. The Master Servicer shall make available, upon request
of any Certificateholder, a copy of any exceptions noted on the Initial
Certification or the Final Certification. The Master Servicer 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, the Master Servicer finds any
document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, the Master Servicer shall list such as an
exception in the Final Certification; provided, however, that the Master
Servicer 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. The Trustee shall enforce the applicable duties of any
Originator to correct and cure such document defects pursuant to the terms of
the related Purchase and Servicing Agreements and if the related Originator
fails to correct or cure the defect within a period of time specified in the
related Purchase and Servicing Agreement and such defect materially and
adversely affects the interests of the Certificateholders in the related
Mortgage Loan, the Trustee shall enforce the Originator's obligation pursuant to
the related Purchase and Servicing Agreement or 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
Master Servicer 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 applicable
Originator or 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 release the related Mortgage
File such Originator and the Trustee shall execute and deliver at such
Originator's or the Transferor's request such instruments of transfer or
assignment prepared by the Originator, in each case without recourse,
representation or warranty, as shall be necessary to vest in the such
Originator, or a designee, the Trustee's interest in any Mortgage Loan released
pursuant hereto.
The Master Servicer shall retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. Pursuant to the terms of the related Purchase and Servicing
Agreement, the Master Servicer will cause each of the related Servicers to
promptly deliver to it and thereupon will 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 an Originator,
pursuant to the applicable Purchase and Servicing Agreement, and 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
or by an Originator under the related Purchase and Servicing Agreement that
materially and adversely affects the interests of the Certificateholders in any
Mortgage Loan (determined without regard to the Policy), the party discovering
such breach shall give prompt notice thereof to the other parties and to MBIA. 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 applicable Originator or the Transferor, as
applicable, of such breach. The Trustee and, in the case of clause (i) that
follows, the Trustee and the Transferor, shall enforce the obligations of (i)
the applicable Originator in accordance with the related Purchase and Servicing
Agreement, to correct or cure any such breach of a representation or warranty
made pursuant to the related Purchase and Servicing Agreement within the time
period specified in the related Purchase and Servicing Agreement and (ii) 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 Originator or the
Transferor, as applicable, 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
Originator's obligation, pursuant to the related Purchase and Servicing
Agreement, or the Transferor's obligations hereunder, as the case may be, to (i)
purchase such Mortgage Loan at the Purchase Price or (ii) substitute for the
related Mortgage Loan a 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 sixty (60) 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 sixty (60) 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 Master Servicer 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. Any substitution made by an Originator
will be made in accordance with the terms of the related Purchase and Servicing
Agreement which terms shall be enforced by the Trustee. 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 Master Servicer 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 Master Servicer 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 Master Servicer shall release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to the applicable
Originator or the Transferor and shall execute and deliver or cause the Trustee
to execute and deliver at Originator's or Transferor's direction such
instruments of transfer or assignment prepared by the Originator or Transferor,
in each case without recourse, representation or warranty, as shall be necessary
to vest title in the Originator or 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 an Originator or 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 outstanding 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 deposited in the Collection Account by the Transferor
(or if such substitution is made by an Originator, the Master Servicer) 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 an Originator or the Transferor, as applicable,
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 such Originator or 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 Master Servicer shall release the related Mortgage File
held for the benefit of the Certificateholders to such Person, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, 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
any Person to cure, repurchase or replace any Mortgage Loan as to which a breach
has occurred and is continuing shall constitute the sole remedies against such
Persons 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 Master Servicer 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 Interests in
exchange therefor. The Trustee further acknowledges the transfer and assignment
to it of the Lower-Tier REMIC Interests and Middle-Tier REMIC Interests and,
concurrently with such transfer and assignment, 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 Middle-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's
fiscal year shall be the calendar year using the accrual method of accounting.
The Class C Certificates shall represent two Upper-Tier REMIC
Regular Interests: (i) a "specified portion," within the meaning of the REMIC
Provisions as described as the "first" regular interest in the Preliminary
Statement and the footnote thereto and (ii) a "specified portion," within the
meaning of the REMIC Provisions, of 100% of the interest payments on the Class
Spread-M Interest, which in turn shall represent a "specified portion," within
the meaning of the REMIC Provisions, of the interest payments on the Class L1
Interest at a rate of 1.3333333333% for each Distribution Date through and
including the Distribution Date in March 2003, and 0% thereafter.
The Class A-IO Certificates shall represent a "specified portion,"
within the meaning of the REMIC Provisions, of 100% of the interest payments on
the Class IO-M Interest. The Class A-IO-M Interest shall represent a "specified
portion," within the meaning of the REMIC Provisions:
(i) for the Distribution Date in December 2002 through and including
the Distribution Date in May 2003, of the interest payments on the Class
L1, Class L2, Class L3, Class L4, Class L5 and Class L6 Interests equal to
(A) the weighted average of the Net Mortgage Rates on the Mortgage Loans
minus (B) the excess (but not less than 1.3333333333% for each
Distribution Date through and including the Distribution Date in March
2003 and not less than zero for each Distribution Date thereafter) of (1)
the weighted average of the Net Mortgage Rates on the Mortgage Loans over
(2) 6.00% per annum;
(ii) for the Distribution Date in June 2003 through and including
the Distribution Date in November 2003, of the interest payments on the
Class L2, Class L3, Class L4, Class L5 and Class L6 Interests equal to (A)
the weighted average of the Net Mortgage Rates on the Mortgage Loans minus
(B) the excess (but not less than zero) of (1) the weighted average of the
Net Mortgage Rates on the Mortgage Loans over (2) 6.00% per annum;
(iii) for the Distribution Date in December 2003 through and
including the Distribution Date in May 2004, of the interest payments on
the Class L3, Class L4, Class L5 and Class L6 Interests equal to (A) the
weighted average of the Net Mortgage Rates on the Mortgage Loans minus (B)
the excess (but not less than zero) of (1) the weighted average of the Net
Mortgage Rates on the Mortgage Loans over (2) 6.00% per annum;
(iv) for the Distribution Date in June 2004 through and including
the Distribution Date in November 2004, of the interest payments on the
Class L4, Class L5 and Class L6 Interests equal to (A) the weighted
average of the Net Mortgage Rates on the Mortgage Loans minus (B) the
excess (but not less than zero) of (1) the weighted average of the Net
Mortgage Rates on the Mortgage Loans over (2) 6.00% per annum;
(v) for the Distribution Date in December 2004 through and including
the Distribution Date in May 2005, of the interest payments on the Class
L5 and Class L6 Interests equal to (A) the weighted average of the Net
Mortgage Rates on the Mortgage Loans minus (B) the excess (but not less
than zero) of (1) the weighted average of the Net Mortgage Rates on the
Mortgage Loans over (2) 6.00% per annum;
(vi) for the Distribution Date in June 2005 through and including
the Distribution Date in November 2005, of the interest payments on the
Class L6 Interest equal to (A) the weighted average of the Net Mortgage
Rates on the Mortgage Loans minus (B) the excess (but not less than zero)
of (1) the weighted average of the Net Mortgage Rates on the Mortgage
Loans over (2) 6.00% per annum; and
(vii) for each Distribution Date thereafter, 0%.
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 Purchase and 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
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date:
(a) The Master Servicer is duly organized as a corporation 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 the extent
necessary to ensure its ability to enforce each Mortgage Loan, to 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.
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 Purchase and 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
Purchase and 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 Purchase and
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
Stated 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 Purchase and 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
Purchase and Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that a Servicer should be terminated in accordance with its
Purchase and Servicing Agreement, or that a notice should be sent pursuant to
such Purchase and 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 Purchase and Servicing Agreement, and shall, in the event that a
Servicer fails to perform its obligations in accordance with the related
Purchase and 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
Purchase and 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 Purchase and 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 Purchase and 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 Purchase
and 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
Purchase and 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.
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 nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Master Servicer hereunder 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 Master Servicer pursuant to Section 3.09 hereof 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 Purchase and 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 Purchase and 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 Purchase and 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 (other than with respect to the
Protected Account that WMMSC is required to maintain pursuant to the WMMSC
Servicing Agreement).
(b) In accordance with the terms of the applicable Purchase and
Servicing Agreement, amounts on deposit in a Protected Account may be invested
by the applicable Servicer in investments specified in such Purchase and
Servicing Agreement. The income earned from investments made pursuant to this
Section 3.06 shall be paid to the related Servicer under the applicable Purchase
and 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 Purchase and 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; Yield Maintenance Reserve Account; Excess Reserve
Fund 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 Purchase and 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 (other
than WMMSC and Cendant), 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) [Reserved];
(ix) 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;
(xi) All proceeds of a primary mortgage guaranty insurance policy in
respect of the Mortgage Loans; and
(xii) any other amounts required to be deposited hereunder.
On each Servicer Remittance Date, the Master Servicer shall cause
WMMSC (a) to withdraw the WMMSC Monthly Remittance Amount from its Protected
Account and (b) to remit the WMMSC Monthly Remittance Amount to the Trustee.
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, 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);
(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 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 3.08. 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 invest funds on deposit in the Distribution Account in
Permitted Investments as directed by the Master Servicer 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 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 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 in the
Distribution Account. The WMMSC Investment Earnings Amount net of any losses
realized from any such investment of the WMMSC Monthly Remittance Amount on
deposit in the Distribution Account shall be for the benefit of WMMSC and shall
be remitted to it monthly by the Trustee as provided in Section 3.19. 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 the Master Servicer to invest funds held in
the Collection Account or Distribution Account, all funds on deposit thereon
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.
The Trustee shall establish and maintain the Yield Maintenance
Reserve Account, held in the name of the Trustee in trust for the benefit of the
Class A-1A Certificateholders. The Trustee shall deposit in the Yield
Maintenance Reserve Account on the date received by it, any Yield Maintenance
Agreement Payment received from the Yield Maintenance Agreement Provider for the
related Distribution Date. On each Distribution Date, the Trustee shall withdraw
from the Yield Maintenance Reserve Account any Yield Maintenance Agreement
Payment and distribute to the Class A-1A Certificates an amount equal to any
unreimbursed Basis Risk Carry Forward Amount (after giving effect to
distributions made on that Distribution Date pursuant to Section 4.02(c)). On
the first Distribution Date after July 2005, any remaining amounts on deposit in
the Yield Maintenance Reserve Account shall be distributed to the Class C
Certificates.
(g) The Trustee shall account for the Yield Maintenance Reserve
Account and the Excess Reserve Fund Account as assets of a grantor trust under
subpart E, part I of subchapter J of the Code and not an asset of any REMIC
created pursuant to this Agreement. The beneficial owner of the Yield
Maintenance Reserve Account and the Excess Reserve Fund Account is the Class C
Certificateholder. For all federal tax purposes, amounts transferred or
reimbursed by any REMIC to the Excess Reserve Fund Account shall be treated as
distributions by the Trustee to the Class C Certificateholder.
(h) Any Basis Risk Carry Forward Amount paid by the Trustee pursuant
to this Section 3.7 to the Offered Certificates shall be accounted for by the
Trustee as amounts paid first to the Class C Certificates and then to the
respective Class or Classes of Offered Certificates. In addition, the Trustee
shall account for the Offered Certificates' rights to receive payments of Basis
Risk Carry Forward Amount as rights in a limited recourse interest rate cap
contract written by the Class C Certificates in favor of each such Class of
Offered Certificates.
(i) For federal tax return and information reporting, the right of
the Certificateholders of the Class A Offered Certificates to receive payments
under the Yield Maintenance Agreement in respect of any Yield Maintenance
Agreement Payments and the Excess Reserve Fund Account in respect of any Basis
Risk Payments shall be assigned a value of zero.
Section 3.08 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
To the extent required by the related Purchase and Servicing
Agreement and by the related Mortgage Note and not in violation 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 shall afford and shall require the Servicers to
afford the Depositor and the Trustee 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 Purchase and
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.
Upon reasonable advance notice in writing, the Master Servicer will
provide or shall require the Servicers 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 or the
applicable Servicer shall be entitled to be reimbursed by each such
Certificateholder for actual expenses incurred by the Master Servicer or the
applicable Servicer 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 and the fee referred to in clause (b) of the definition of "Master
Servicing Compensation";
(ii) to reimburse the Servicers or the Master Servicer for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (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
withdraw an amount equal to the Available Funds for such Distribution Date
and remit by wire transfer of immediately available funds such amount to
the Trustee for deposit in the Distribution Account;
(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 subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Collection Account
pursuant to subclause (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) [Reserved];
(ii) to pay to the Master Servicer earnings on or investment income
with respect to funds in or credited to the Distribution Account;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein;
(iv) 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
(v) 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; Maintenance of Primary
Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Purchase and 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 Purchase and Servicing Agreements. It is understood and agreed that such
insurance shall be with insurers meeting the eligibility requirements set forth
in the applicable Purchase and 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 Purchase and 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
Purchase and 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 Purchase and 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 Purchase and 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
Purchase and Servicing Agreement, as applicable. The Master Servicer shall not,
and shall not permit any Servicer (to the extent required under the related
Purchase and 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 Purchase and Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
(to the extent required under the related Purchase and 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 Purchase and 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 Purchase and 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 Purchase and 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 Purchase and 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 Purchase and
Servicing Agreement, subject to the REMIC Provisions.
(b) The Master Servicer shall, to the extent required by the related
Purchase and 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 any 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 Purchase and 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 Purchase and 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 Purchase and Servicing
Agreement, and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be released from liability in accordance with the applicable
Purchase and 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 will, upon receipt of
notification from the related Servicer pursuant to the applicable Purchase and
Servicing Agreement, 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 Master Servicer 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 Master Servicer, 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 Purchase and 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 to Be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall place within the Mortgage File and shall cause each Servicer to
transmit to the Master Servicer as required by this Agreement and the related
Purchase and 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 or related
Servicer 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 or the related Servicer for and on
behalf of the Trustee and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement and the
related Purchase and Servicing Agreement. The Master Servicer 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
plus, with respect to the Xxxxx Fargo Serviced Mortgage Loans, an additional fee
equal to (i) the Master Servicing Fee Rate multiplied by (ii) the Stated
Principal Balance of the Xxxxx Fargo Serviced Mortgage Loans as of the Due Date
in the month preceding the month in which the related Distribution Date occurs.
The Trustee will remit to the Master Servicer all investment income earned on
amounts held in the Distribution Account net of the WMMSC Investment Earnings
Amount which the Trustee shall remit directly to WMMSC.
Section 3.20 Access to Certain Documentation.
The Master Servicer shall provide and cause each Servicer to provide
in accordance with the related Purchase and 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 and the related Servicer. Nothing in this Section shall
limit the obligation of the Master Servicer and the related Servicer to observe
any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Master Servicer 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 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, 2003, 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,
2003, 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.
ARTICLE IV
DISTRIBUTIONS AND SERVICING ADVANCES
Section 4.01 Advances.
The Master Servicer shall deposit in the Collection 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 Monthly 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
Purchase and Servicing Agreement and (y) amounts deposited in the Collection
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 its Purchase and Servicing Agreement. If applicable, on the
Distribution Account Deposit Date, the Master Servicer shall present 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 Master Servicing Fee
and the applicable Servicing Fee for the related Mortgage Loans.
Section 4.02 Priorities of Distribution.
On each Distribution Date, the Trustee shall, in accordance with the
Monthly Statement for such Distribution Date and from funds on deposit in the
Distribution Account, make the disbursements and transfers in the following
order of priority and to the extent of the Available Funds remaining:
(a) to the Certificateholders of each Class of Certificates and to
MBIA, from Available Funds (excluding any Retained Spread for the first 4
Distribution Dates) in the following order or priority:
(i) to the Class A-IO Certificates, the Accrued Certificate
Interest for the Class A-IO Certificates;
(ii) to the Class A-IO Certificates, the Unpaid Interest
Amounts for the Class A-IO Certificates;
(iii) concurrently,
1) to the Class X-0, Xxxxx X-0X, Xxxxx X-0, Class
A-3, Class A-3A, Class A-4, Class A-5, Class A-6
and Class A-7 Certificates, pro rata, the related
Accrued Certificate Interest for those Classes;
and
2) to MBIA, the Premium Distribution Amount, so long
as the Class A-7 Certificates are outstanding;
(iv) to the Class A-1, Class A-1A, Class A-2, Class A-3, Class
A-3A, Class A-4, Class A-5, Class A-6 and Class A-7 Certificates,
pro rata, the related Unpaid Interest Amounts for those Classes; and
(v) to MBIA, any Reimbursement Amount due to it;
(vi) to the Class M-1 Certificates, the Accrued Certificate
Interest for that Class;
(vii) to the Class M-1 Certificates, the Unpaid Interest
Amounts for that Class;
(viii) to the Class M-2 Certificates, the Accrued Certificate
Interest for that Class;
(ix) to the Class M-2 Certificates, the Unpaid Interest
Amounts for that Class;
(x) to the Class B Certificates, the Accrued Certificate
Interest for that Class; and
(xi) to the Class B Certificates, the Unpaid Interest Amounts
for that Class;
(b) (A) on each Distribution Date (x) before the related Stepdown
Date or (y) with respect to which a Trigger Event is in effect, to the
Certificateholders of the Class or Classes of Certificates then entitled
to distributions of principal as set forth below, an amount equal to the
Principal Distribution Amount in the following order or priority:
(i) to the Class A-6 and Class A-7 Certificates, pro rata, the
Lockout Principal Distribution Amount, until their respective Class
Certificate Balances are reduced to zero;
(ii) sequentially, as follows, in each case, until their
respective Class Certificate Balances are reduced to zero:
1) to the Class A-1 and Class A-1A Certificates pro
rata, based upon their respective Class
Certificate Balances;
2) to the Class A-2 Certificates;
3) to the Class A-3 and Class A-3A Certificates, pro
rata, based upon their respective Class
Certificate Balances;
4) to the Class A-4 Certificates;
5) to the Class A-5 Certificates; and
6) to the Class A-6 and Class A-7 Certificates, pro
rata, based upon their respective Class
Certificate Balances;
(iii) to MBIA, any Reimbursement Amount due to it;
(iv) sequentially to the Class M-1, Class M-2 and Class B
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero;
(B) on each Distribution Date (x) on and after the related Stepdown
Date and (y) as long as a Trigger Event is not in effect, to the
Certificateholders of the Class or Classes of Certificates then entitled
to distributions of principal an amount equal to the Principal
Distribution Amount in the following amounts and order of priority:
(i) to the Class A-6 and Class A-7 Certificates, pro rata, an
amount up to the lesser of (x) the Class A Principal Distribution
Amount and (y) the Lockout Principal Distribution Amount, until
their respective Certificate Balance are reduced to zero;
(ii) an amount up to the remaining Class A Principal
Distribution Amount, sequentially as follows, in each case, until
their respective Class Certificate Balances are reduced to zero:
1) to the Class A-1 and Class A-1A Certificates, pro
rata, based upon their respective Class
Certificate Balances;
2) to the Class A-2 Certificates;
3) to the Class A-3 and Class A-3A Certificates, pro
rata, based upon their respective Class
Certificate Balances;
4) to the Class A-4 Certificates;
5) to the Class A-5 Certificates; and
6) to the Class A-6 and Class A-7 Certificates, pro
rata, based upon their respective Certificate
Balances;
(iii) to MBIA, any Reimbursement Amount due to it;
(iv) an amount up to the Class M-1 Principal Distribution
Amount, to the Class M-1 Certificates, until the Class Certificate
Balance of such Class has been reduced to zero;
(v) an amount up to the Class M-2 Principal Distribution
Amount, to the Class M-2 Certificates, until the Class Certificate
Balance of such Class has been reduced to zero; and
(vi) an amount up to the Class B Principal Distribution Amount
to the Class B Certificates, until the Class Certificate Balance of
such Class has been reduced to zero;
(c) any amount remaining after the distributions in subsections (a)
and (b) above (other than Retained Spread), is required to be distributed
in the following order of priority with respect to the Certificates:
(i) concurrently, to the Class X-0, Xxxxx X-0X, Xxxxx X-0,
Class A-3, Class A-3A, Class A-4, Class A-5, Class A-6 and Class A-7
Certificates, pro rata, the related Unpaid Interest Amounts for
those Classes; and
(ii) to MBIA, any Reimbursement Amount due to it;
(iii) to the Certificateholders of the Class M-1 Certificates,
any Unpaid Interest Amounts for that Class;
(iv) to the Certificateholders of the Class M-1 Certificates,
in an amount up to the aggregate of any unreimbursed Applied
Realized Loss Amounts previously allocated to that Class, plus
interest on those amounts at the Pass-Through Rate for that Class in
effect from time to time, compounded monthly from the date the
related Realized Loss was allocated to such Class;
(v) to the Certificateholders of the Class M-2 Certificates,
any Unpaid Interest Amounts for that Class;
(vi) to the Certificateholders of the Class M-2 Certificates,
in an amount up to the aggregate of any unreimbursed Applied
Realized Loss Amounts previously allocated to that Class, plus
interest on those amounts at the Pass-Through Rate for that Class in
effect from time to time, compounded monthly from the date the
related Realized Loss was allocated to such Class;
(vii) to the Certificateholders of the Class B Certificates,
any Unpaid Interest Amounts for that Class;
(viii) to the Certificateholders of the Class B Certificates,
in an amount up to the aggregate of any unreimbursed Applied
Realized Loss Amounts previously allocated to that Class, plus
interest on those amounts at the Pass-Through Rate for that Class in
effect from time to time, compounded monthly from the date the
related Realized Loss was allocated to such Class;;
(ix) to the Excess Reserve Fund Account, up to an amount equal
to any Basis Risk Payment for that Distribution Date;
(x) from funds on deposit in the Excess Reserve Fund Account,
an amount equal to any Basis Risk Carry Forward Amount with respect
to the offered Certificates for that Distribution Date in the same
order and priority in which Accrued Certificate Interest is
allocated among those Classes of Certificates as described in
Section 4.02(a);
(xi) to the Class C Certificates, the remainder of the Class C
Distributable Amount not distributed pursuant to Sections
4.02(c)(i)-(x); and
(xii) the Class R Certificates, any remaining amount; and
(d) for each Distribution Date up to and including the Distribution
Date in March 2003, to the Class C Certificates, any Retained Spread for
such Distribution Date.
(e) Any amounts distributed to the Offered Certificates in respect
of interest pursuant to Sections 4.02(c)(x) which constitute Basis Risk
Xxxx Forward Amounts shall first be deemed distributed by the Upper-Tier
REMIC as a distribution in respect of the Upper-Tier REMIC and distributed
thereby as a distribution to the Class C Certificates in respect of the
Upper-Tier REMIC, and then distributed to the Offered Certificates from
the Grantor Trust as payments on notional principal contracts in the
nature of interest rate cap contracts. Any remaining amount distributed by
the Upper-Tier REMIC or any remaining Yield Maintenance Agreement Payment
shall be treated as having been distributed to the Class C Certificates
from the Grantor Trust.
(f) On each Distribution Date, any Relief Act Interest Shortfalls
and Net Prepayment Interest Shortfalls for such Distribution Date shall be
allocated as a reduction of the Accrued Certificate Interest for the Class
A, Class M and Class B Certificates pro rata based on the amount of
interest to which such classes would otherwise be entitled.
Section 4.03 Allocation of Applied Realized Loss Amounts.
Any Applied Realized Loss Amounts shall be allocated to the Class B,
Class M-2 and Class M-1 Certificates, in that order and until the respective
Class Certificate Balances thereof are reduced to zero. No Applied Realized Loss
Amounts shall be allocated to any of the Class A Certificates. In the event
Applied Realized Amounts are allocated to any Class of Certificates, their Class
Certificate Balance shall be permanently reduced by the amount so allocated and
no funds shall be distributed with respect to the written down amounts or with
respect to interest on the written down amounts on that Distribution Date or any
future Distribution Dates, unless funds become available to make reimbursement
payments to such Classes as described in Section 4.02(c).
Section 4.04 Monthly 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, MBIA 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 (v) 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 Class Unpaid
Interest Shortfall included in such distribution and any remaining Class
Unpaid Interest Shortfall after giving effect to such distribution, any
Basis Risk Carry Forward Amount for such Distribution Date and the amount
of all Basis Risk Carry Forward Amount covered by the withdrawals from the
Excess Reserve Fund Account on such Distribution Date;
(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, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance as a dollar amount per minimum
denomination Certificate and the Class Principal Balance or Notional
Amount of each Class of Certificates, after giving effect to the
distribution of principal on such Distribution Date;
(v) [Reserved];
(vi) the Pool Principal Balance for the following Distribution Date;
(vii) the amount of the Servicing Fees and the Master Servicing Fee
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 Stated 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) in the case of the Class A-7 Certificates, (a) the Deficiency
Amount, if any, for such Distribution Date and (b) amounts, if any, in
respect of the Deficiency Amount paid under the Policy;
(xiv) whether a Trigger Event has occurred and is continuing;
(xv) the amount on deposit in the Excess Reserve Fund Account (after
giving effect to distributions on such Distribution Date);
(xvi) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvii) the amount of any Total Monthly Excess Spread on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Losses and Unpaid Interest Amounts;
(xviii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xix) the amounts of any Basis Risk Payment and any Yield
Maintenance Agreement Payment; and
(xx) the Retained Spread.
(b) The Master Servicer's responsibility for disbursing the above
information to the Trustee, Depositor, MBIA, Certificateholders and other
interested parties is limited to the availability, timeliness and the accuracy
of the information provided by each Servicer. The Master Servicer will make a
copy of each statement provided pursuant to this Section 4.04 (and, at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders, MBIA and other interested
parties, and other parties to this Agreement via the Master Servicer's internet
website located at "xxx.xxxxxxx.xxx". Assistance in using the internet website
can be obtained by calling the Master Servicer's customer service desk at (301)
815-6600. 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
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/or more accessible and the Master
Servicer shall provide timely and adequate notification to the
Certificateholders, MBIA 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 Monthly 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 internet website, the
Master Servicer 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.
Section 4.05 Determination of LIBOR.
On each LIBOR Determination Date for a Class of LIBOR Certificates,
the Master Servicer shall determine LIBOR for the applicable Distribution Date
on the basis of the British Bankers' Association ("BBA") "Interest Settlement
Rate" for one-month deposits in U.S. Dollars as found on Telerate page 3750 as
of 11:00 A.M. London time on such LIBOR Determination Date. As used herein,
"Telerate page 3750" means the display designated as page 3750 on the Bridge
Telerate Service.
If on any LIBOR Determination Date for a Class of LIBOR
Certificates, the Master Servicer is unable to determine LIBOR on the basis of
the method set forth in the preceding paragraph, LIBOR for the applicable
Distribution Date will be whichever is higher of (x) LIBOR as determined on the
previous LIBOR Determination Date for such Class of LIBOR Certificates or (y)
the Reserve Interest Rate. The "Reserve Interest Rate" will be the rate per
annum which the Master Servicer determines to be either (A) the arithmetic mean
(rounding such arithmetic mean upwards if necessary to the nearest whole
multiple of 1/16%) of the one-month U.S. Dollar lending rates that New York City
banks selected by the Master Servicer are quoting, on the relevant LIBOR
Determination Date, to the principal London offices of at least two leading
banks in the London interbank market or (B) in the event that the Master
Servicer can determine no such arithmetic mean, the lowest one-month U.S. Dollar
lending rate that the New York City banks selected by the Master Servicer are
quoting on such LIBOR Determination Date to leading European banks.
If on any LIBOR Determination Date for a Class of LIBOR
Certificates, the Master Servicer is required but is unable to determine the
Reserve Interest Rate in the manner provided in the preceding paragraph, LIBOR
for the applicable Distribution Date will be LIBOR as determined on the previous
LIBOR Determination Date for such Class of LIBOR Certificates, or, in the case
of the first LIBOR Determination Date, the Initial LIBOR Rate.
The establishment of LIBOR by the Master Servicer and the Master
Servicer's subsequent calculation of the rates of interest applicable to each of
the LIBOR Certificates in the absence of manifest error, will be final and
binding. After a LIBOR Determination Date, the Master Servicer shall provide the
Pass-Through Rates of the LIBOR Certificates for the related Distribution Date
to Certificate Owners or Holders of LIBOR Certificates who place a telephone
call to the Master Servicer at 000-000-0000 and make a request therefor.
Section 4.06 Policy Matters.
(a) If, on the second Business Day before any Distribution Date, the
Trustee determines from the Monthly Statement that there will be a Deficiency
Amount for such Distribution Date, the Trustee shall determine the amount of
such Deficiency Amount and shall give notice to MBIA by telephone or telecopy of
the amount of such deficiency confirmed in writing by the Notice of Nonpayment
by 12:00 noon, New York City time on such second Business Day.
(b) At the time of the execution and delivery of this Agreement, the
Trustee shall establish a separate special purpose trust account in the name of
the Trustee for the benefit of Holders of the Class A-7 Certificates referred to
herein as the "Policy Payment Account" over which the Trustee shall have
exclusive control and sole right of withdrawal. The Trustee shall deposit any
amounts paid under the Policy into the Policy Payment Account and distribute
such amounts only for purposes of payment to Holders of the Class A-7
Certificates of the Insured Payment for which a claim was made and such amounts
may not be applied to satisfy any costs, expenses or liabilities of the Trustee
or the Trust Estate. Amounts paid under the Policy shall be disbursed by the
Trustee to Holders of the Class A-7 Certificates in the same manner as
distributions in reduction of the principal balance of and interest on the
Certificates of such Class are made under Section 4.02. It shall not be
necessary for such payments of the Insured Payment to be made by checks or wire
transfers separate from the check or wire transfer used to pay distributions in
reduction of the principal balance of and interest on the Class A-7 Certificates
with funds available to make such distributions. However, the amount of any
distribution to be paid from funds transferred from the Policy Payment Account
shall be noted as provided in (c) below and in the statement to be furnished to
Holders of the Class A-7 Certificates and MBIA pursuant to Section 4.04. Funds
held in the Policy Payment Account shall not be invested by the Trustee.
On any Distribution Date with respect to which a claim has been made
under the Policy, the amount of any funds received by the Trustee as a result of
the claim under the Policy to the extent necessary to make distributions on the
Class A-7 Certificates equal to the Deficiency Amount on such Distribution Date
shall be withdrawn from the Policy Payment Account and applied by the Trustee to
the payment in full of the Deficiency Amount. Any funds deposited into the
Policy Payment Account in respect of the Class A-7 Certificates that are
remaining therein on the first Business Day following a Distribution Date after
the Deficiency Amount has been made to the Certificateholders of such Class
shall be remitted in immediately available funds to MBIA, pursuant to the
instructions of MBIA, by the end of such Business Day.
(c) The Trustee shall keep a complete and accurate record of the
Class A-7 Interest Loss Amount and the Class A-7 Principal Loss Amount paid from
moneys received under the Policy. MBIA shall have the right to inspect such
records at reasonable times upon one Business Day's prior notice to the Trustee.
(d) In the event that the Trustee has received a certified copy of
an order of the appropriate court that any distributions in reduction of the
principal balance of or interest on a Class A-7 Certificate has been avoided in
whole or in part as a preference payment under applicable bankruptcy law, the
Trustee shall so notify MBIA and shall comply with the provisions of the Policy
to obtain payment by MBIA of such avoided distribution, and shall, at the time
it provides notice to MBIA, notify, by mail to Holders of the Certificates of
such Class that, in the event that any Holder's distribution is so recovered,
such Holder will be entitled to payment pursuant to the terms of the Policy, a
copy of which shall be made available by the Trustee and the Trustee shall
furnish to MBIA its records evidencing the distributions in reduction of the
principal balance of and interest on the Class A-7 Certificates, if any, which
have been made by the Trustee and subsequently recovered from Holders, and the
dates on which such distributions were made. Such payment under the Policy shall
be disbursed to the receiver, conservator, debtor-in-possession or trustee in
bankruptcy named in the order and not to the Trustee or any Class A-7
Certificateholder directly (unless such Certificateholder has previously paid
such amount to the receiver, conservator, debtor-in-possession or trustee in
bankruptcy named in the order, in which case such payment shall be disbursed to
the Trustee for distribution to such Certificateholder upon proof of such
payment reasonably satisfactory to MBIA).
(e) The Trustee shall promptly notify MBIA of any proceeding or the
institution of any action seeking the avoidance as a preferential transfer under
applicable bankruptcy, insolvency, receivership or similar law (a "Preference
Claim") of any distribution made with respect to the Class A-7 Certificates as
to which it has actual knowledge. Each Holder of a Class A-7 Certificate, by its
purchase of such Certificates and the Trustee hereby agree that MBIA (so long as
no MBIA Default exists) may at any time during the continuation of any
proceeding relating to a Preference Claim direct all matters relating to such
Preference Claim, including, without limitation, (i) the direction of any appeal
of any order relating to any Preference Claim and (ii) the posting of any
surety, supersedeas or performance bond pending any such appeal. In addition and
without limitation of the foregoing, MBIA shall be subrogated to the rights of
the Trustee and each Holder in the conduct of any Preference Claim, including,
without limitation, all rights of any party to an adversary proceeding or action
with respect to any court order issued in connection with any such Preference
Claim.
(f) The Trustee acknowledges, and each Holder of a Class A-7
Certificate by its acceptance of such Certificate agrees, that without the need
for any further action on the part of MBIA or the Trustee, to the extent that
MBIA makes payments directly or indirectly on account of principal or interest
on any Class A-7 Certificate, MBIA shall be fully subrogated to all of the
rights of such Certificateholders with respect to any and all amounts paid under
the Policy. The Class A-7 Certificateholders by acceptance of such Certificates
assign their rights as Holders of such Certificates to MBIA to the extent of
MBIA's interest with respect to amounts paid under the Policy. Anything herein
to the contrary notwithstanding, solely for purposes of determining MBIA's
rights, as applicable, as subrogee for payments distributable pursuant to
Section 4.02, any payment with respect to distributions to the Class A-7
Certificates which is made with funds received pursuant to the terms of the
Policy, shall not be considered payment of the Class A-7 Certificates from the
Trust Fund and shall not result in the distribution or the provision for the
distribution in reduction of the Class Principal Balance of the Class A-7
Certificates except to the extent such payment has been reimbursed to MBIA
pursuant to the terms hereof.
(g) The Master Servicer shall designate an MBIA Contact Person who
shall be available to MBIA to provide reasonable access to information regarding
the Mortgage Loans. The initial MBIA Contact Person is the Master Servicer's
client manager for MALT 2002-3 who can be contacted at (000) 000-0000.
(h) The Trustee shall surrender the Policy to MBIA for cancellation
upon reduction of the Certificate Principal Balance of the Class A-7
Certificates to zero.
(i) All references herein to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the Policy.
(j) For so long as there is no continuing default by MBIA under its
obligations under the Policy, each Holder of a Class A-7 Certificate agrees that
MBIA shall be entitled to exercise the voting, consent, directing and other
control rights of the Holders of the Class A-7 Certificates without consent of
such Holders and the Holders of the Class A-7 Certificates shall only exercise
such rights with the prior written consent of MBIA.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. 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 (i) such Holder
has so notified the Trustee in writing at least five Business Days prior to the
related Record Date and (ii) such Holder shall hold (A) an Interest Only
Certificate, (B) 100% of the Class Principal Balance of any Class of
Certificates or (C) Certificates of any Class with aggregate principal
Denominations of not less than $1,000,000 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 countersignature 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 countersigned by the Trustee by manual signature, and such
countersignature 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 countersignature. On the
Closing Date, the Trustee shall countersign 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.
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 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 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
(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.
(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, 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 any 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.
(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 Trustee or the
Depositor is unable to locate a qualified successor, (y) the Depositor with the
consent of the Trustee in writing 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 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 (and to MBIA with respect to the Class A-7 Certificates) 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, countersign 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, MBIA, the Trustee and any agent of the Master
Servicer, MBIA 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, MBIA, the Trustee nor any agent of
the Master Servicer, MBIA 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, MBIA 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, MBIA, 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 and the Master
Servicer.
The Depositor and the Master Servicer 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 or the Master
Servicer.
The Depositor and the Master Servicer 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 or the Master Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the 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 and Others.
None of the Depositor, the Transferor, the Master Servicer or any of
the directors, officers, employees or agents of the Depositor, the Transferor or
the Master Servicer 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
or any such Person against any breach of representations or warranties made by
it herein or protect the Depositor, the Transferor, the Master Servicer 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 and any director, officer, employee or agent
of the Depositor, the Transferor or the Master Servicer may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor, the Transferor,
the Master Servicer and any director, officer, employee or agent of the
Depositor, the Transferor or the Master Servicer 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 or the Master Servicer 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 or the Master Servicer 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 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, or (b) upon determination that its duties hereunder are
no longer permissible under applicable law, or (c) pursuant to Section 6.05, or
(d) upon termination by the Depositor pursuant to Section 8.12(d). 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); or (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, any custodial 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.
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; 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 (determined without regard to the
Policy), 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,
either the Trustee or the Holders of Certificates evidencing Voting Rights
aggregating not less than 25% of the Certificates, by notice in writing to the
Master Servicer (and to the Trustee if given by such Certificateholders), with a
copy to the Rating Agencies and MBIA, 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/or 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 Purchase and 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 (xi), 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 investment income on all
funds to which the Master Servicer would have been entitled in the Collection
Account or Distribution Account 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 Xxx 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)(iv); provided that the Master Servicer shall reimburse the Trust
for any such expense incurred by the Trust; provided, further, that if the
Master Servicer is terminated pursuant to Section 8.12(d), the Depositor will be
solely responsible for the costs and expenses referred to in this paragraph.
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 the Trustee has
actual knowledge of 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 finally proven 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; and
(iv) Subject to Section 7.02, 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.
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 counter-signature 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 (x) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of the Trustee's duties hereunder, (y)
incurred by reason of any action of the Trustee taken at the direction of the
Certificateholders, or (z) which would not constitute an "unanticipated expense
incurred by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii), and (iii) resulting from any error in any tax or information
return prepared by the Master Servicer. 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 and have
accepted appointment within 30 days after the giving of such notice or
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 Depositor may also terminate the Trustee pursuant to
Section 8.12(d).
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 personally 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 any 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
each 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 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; (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 R
Certificates shall act as "tax matters person" for each of the Upper-Tier REMIC,
the Middle-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 R Certificateholder for such purposes (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.
The Trustee shall treat the rights of the Offered Certificateholders
to receive Basis Risk Carry Forward Amounts as a beneficial ownership interest
in the Grantor Trust and not as an obligations of any REMIC created hereunder,
for federal income tax purposes.
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
any 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, the Master Servicer shall
confirm that it has received all distribution and/or servicing information
required to be provided to the Master Servicer by each Servicer for inclusion in
such Monthly 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 Monthly 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 Purchase and 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 Purchase and
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.
(c) The Trustee and the Master Servicer shall reasonably cooperate
with the Depositor in connection with the Trust's satisfying the reporting
requirements under the Exchange Act. The Master Servicer shall prepare, sign and
file (via the Securities and Exchange Commission's Electronic Data Gathering and
Retrieval System) any Forms 8-K customary for similar securities as required by
the Exchange Act and the rules and regulations promulgated thereunder. 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 Monthly 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), a Form 10-K, in substance as required by applicable law
or applicable Securities and Exchange Commission staff's interpretations, shall
be filed on behalf of the Trust. The Master Servicer shall prepare and file (via
the Securities and Exchange Commission's Electronic Data Gathering and Retrieval
System) each such Forms 10-K, and such Form 10-K shall be executed in accordance
with paragraph (d) of this Section 8.12. Such Form 10-K shall include as
exhibits the annual statements of compliance and the accountant's reports
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 and timely prepare or file such periodic reports resulting
from or relating to (i) the Master Servicer's or the Trustee's inability or
failure to obtain any information not resulting from its own negligence, bad
faith or willful misconduct, or (ii) in the case of any Form 10-K, the failure
of or untimely completion of the negotiations referred to in (d) below.
(d) The Trustee, the Master Servicer and the Depositor hereby agree
to negotiate in good faith with respect to which such party will be responsible
to execute each Form 10-K and any certification (the "Xxxxxxxx-Xxxxx
Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx
Act of 2002, and the rules and regulations of the Commission promulgated
thereunder (including any interpretations thereof by the Securities and Exchange
Commission's staff). The Trustee, the Master Servicer and the Depositor also
hereby agree to negotiate in good faith with respect to the provision of any
"back-up" certifications and indemnities with respect thereto which may be
deemed necessary or appropriate to support the certification items in the
Xxxxxxxx-Xxxxx Certification. In the event such parties agree on such matters,
this Agreement shall be amended to reflect such agreement pursuant to Section
10.01. In the event the parties do not agree on such matters, the Depositor
shall have the right to terminate the Trustee and/or the Master Servicer in the
Depositor's sole discretion, provided that successor(s) thereto (in the case of
the Master Servicer, the successor not being the Trustee) meeting the
requirements for such successor(s) under this Agreement are appointed by the
Depositor pursuant to the terms of this Agreement. If the Depositor elects to
terminate the Master Servicer pursuant to this Section 8.12(d), the Depositor
shall pay to the Master Servicer a termination fee in an amount equal to the
product of (i) the Stated Principal Balance of all the Mortgage Loans at such
time and (ii) 0.02%, plus the reasonable and necessary out-of-pocket costs and
expenses incurred by the Master Servicer in connection with transferring the
Mortgage Files at the direction of the Depositor. All such amounts shall be
payable from funds of the Depositor and not from any assets of the Trust Fund.
(e) Upon any filing pursuant to this Agreement with the Securities
and Exchange Commission, the Master Servicer shall promptly deliver to the
Depositor a copy of any such filing.
(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.
Section 8.13 Grantor Trust Administration.
The parties intend that the portions of the Trust Fund consisting of
the right of the Offered Certificates to receive Basis Risk Carry Forward
Amounts, the Yield Maintenance Agreement, the Yield Maintenance Reserve Account
and the right of the Class C Certificates to receive Yield Maintenance Agreement
Payments subject to the obligation of the Class C Certificates to pay Basis Risk
Carry Forward Amounts, shall be treated as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished (i) to the Holders of the Offered Certificates and (ii) to the Holder
of the Class C Certificates and shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable, their allocable shares of income and expenses with respect to the
property held by the Grantor Trust, at the time or times and in the manner
required by the Code.
ARTICLE 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 (iii) the amount
of Reimbursement Amounts due to MBIA 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 ten percent 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 15th
day and no later than the 10th 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 Class Certificate Balance thereof plus accrued
interest thereon (or on their Notional Amount, if applicable) in the case of an
interest bearing Certificate 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 R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Upper-Tier REMIC, the Middle-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, the Middle-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 Trustee shall also specify such date in a statement attached to the
final tax return of each of the Upper-Tier REMIC, the Middle-Tier REMIC
and the 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 9.01.
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 and the Trustee, and with respect to
amendments affecting the rights or obligations of MBIA, with the consent of MBIA
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 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 (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 (without, in the case of the Class A-7 Certificates, giving effect
to the guaranty provided by MBIA); 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 Master Servicer and MBIA (only with respect to amendments affecting the
rights or obligations of MBIA) 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 any of the Upper-Tier REMIC, the
Middle-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 any 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, 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.
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 or MBIA, and without the need for any Opinions of Counsel or
Rating Agency confirmation, pursuant to Section 8.12(d).
This Agreement may also be amended from time to time by the
Depositor, the Transferor, the Master Servicer and the Trustee with the consent
of MBIA (only with respect to amendments affecting the rights or obligations of
MBIA) and 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 Section 8.12(d)) unless it shall have first received an Opinion of
Counsel, which opinion shall not be an expense of the Trustee 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 any REMIC or the
Certificateholders or cause any of the Upper-Tier REMIC, the Middle-Tier REMIC
or the Lower-Tier REMIC to fail to qualify as a REMIC or the remaining portion
of the Trust Fund to qualify as a grantor trust 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 (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 and MBIA 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 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 and MBIA 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, Xxxxx Fargo Bank Minnesota, N.A., 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, or such other address as may be
hereafter furnished to the Depositor and the Trustee by the Master Servicer in
writing, (c) in the case of the Trustee, the Corporate Trust Office, or such
other address as the Trustee may hereafter furnish to the Depositor or Master
Servicer, (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 MBIA, to MBIA Insurance Corporation, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000, Attention: IPM-SF (MALT Series 2002-3) (in each case in which notice or
other communication to MBIA refers to an MBIA Default or a claim under the
Policy or with respect to which failure on the part of MBIA to respond shall be
deemed to constitute consent or acceptance, then a copy of such notice or other
communication should also be sent to the attention of the General Counsel and
shall be marked to indicate "URGENT MATERIAL ENCLOSED"). 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.
Section 10.11 Third Party Beneficiary.
For so long as no MBIA Default has occurred and is continuing, MBIA
shall be a third party beneficiary to this Agreement to the extent of its rights
hereunder and the rights of the Holders of the Class A-7 Certificates.
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 Ma
-------------------------------------
Name: Xxxxx Ma
Title: Director
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Director
Bank One, N.A.,
as Trustee
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
UBS WARBURG REAL ESTATE
SECURITIES INC.,
as Transferor
By: /s/ Xxxxx Ma
-------------------------------------
Name: Xxxxx Ma
Title: Director
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Director
XXXXX FARGO BANK MINNESOTA, N.A.,
as Master Servicer
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of November , 2002 before me, a notary public in and
for said State, personally appeared Xxxxx Ma known to me to be a 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/ Xxxxxx X. Xxxx
-------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of November, 2002 before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxxxx known to me to be an
Executive 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/ Xxxxxx X. Xxxx
-------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of November, 2002 before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxx, known to me to be a Vice
President of Bank One, 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. Xxxxx
-------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of November , 2002 before me, a notary public in and
for said State, personally appeared Xxxxx Ma known to me to be a 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/ Xxxxxx X. Xxxx
-------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of November, 2002 before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxxxx known to me to be an
Executive 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/ Xxxxxx X. Xxxx
-------------------------------------
Notary Public
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
On the 26th day of November, 2002 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
SCHEDULE I
Mortgage Loan Schedule
[Available upon request]
SCHEDULE II
MASTR Alternative Loan Trust 2002-3
Mortgage Pass-Through Certificates
Series 2002-3
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, other than the Alterna Mortgage Loans,
the American Mortgage Express Mortgage Loans, the Bank of America Mortgage
Loans, the Cendant Mortgage Loans, the Chapel Mortgage Loans, the Chase Mortgage
Loans, the Concord Mortgage Loans, the First Financial Mortgage Loans, the First
Guaranty Mortgage Loans, the First Horizon Mortgage Loans, the Genisys Mortgage
Loans, the JLM Mortgage Loans, the Market Street Mortgage Loans, the Mortgage
Network Mortgage Loans, the National City Mortgage Loans, the Ohio Bank Mortgage
Loans, the Principal Mortgage Loans, the Provident Mortgage Loans, the RBC
Mortgage Loans, the Secured Bankers Company Mortgage Loans, the SIB Mortgage
Loans, the SoCal Mortgage Loans, the Xxxxxx Xxxx Mortgage Loans, The Mortgage
Store Mortgage Loans, the Universal Mortgage Loans, the Wachovia Mortgage Loans,
the Wall Street Bankers Mortgage Loans and the WAMU Mortgage Loans, the
following representation and warranty. 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 Bank One, N.A., as trustee.
With respect to each representation and warranty made by each
Originator (other than Alterna, American Mortgage Express, Bank of America,
Cendant, Chapel, Chase, Concord, First Financial, First Guaranty, First Horizon,
Genisys, JLM, Market Street, Mortgage Network, National City, Ohio Bank,
Principal, Provident, RBC, Secured Bankers Company, SIB, SoCal, Xxxxxx Xxxx, The
Mortgage Store, Universal, Wachovia, Wall Street Bankers and WAMU as of the
related Loan Sale Date, to the Transferor's knowledge, no event has occurred
from such Loan Sale Date which would render such representations and warranties
to be untrue in any material respect.
SCHEDULE III
Yield Maintenance Notional Amount Schedule
YIELD
MAINTENANCE
DISTRIBUTION DATE NOTIONAL AMOUNT
----------------- ---------------
December 2002 $100,000,000
January 2003 $ 95,800,529
February 2003 $ 91,660,410
March 2003 $ 87,959,489
April 2003 $ 84,534,300
May 2003 $ 81,146,641
June 2003 $ 77,796,109
July 2003 $ 74,482,306
August 2003 $ 71,204,836
September 2003 $ 67,963,309
October 2003 $ 64,757,340
November 2003 $ 61,586,545
December 2003 $ 58,450,548
January 2004 $ 55,348,973
February 2004 $ 52,281,451
March 2004 $ 49,247,616
April 2004 $ 46,247,106
May 2004 $ 43,279,562
June 2004 $ 40,344,630
July 2004 $ 37,441,959
August 2004 $ 34,571,202
September 2004 $ 31,732,017
October 2004 $ 28,924,062
November 2004 $ 26,147,003
December 2004 $ 23,400,507
January 2005 $ 20,684,244
February 2005 $ 17,997,891
March 2005 $ 15,341,124
April 2005 $ 12,713,626
May 2005 $ 10,115,080
June 2005 $ 7,545,177
July 2005 $ 5,003,607
August 2005 $ 2,490,064
September 2005 $ 4,248
EXHIBIT A-A-1
(FORM OF CLASS A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-1-[__]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[__________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $119,800,000
of this Class:
CUSIP: 576434 BJ 2
ISIN: US576434BJ29
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class 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 a pool 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 (the "Servicer") and Bank One, N.A., 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: _____________________
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-1A
(FORM OF CLASS A-1A 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-1A-[__]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[__________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $100,000,000
of this Class:
CUSIP: 576434 BK 9
ISIN: US576434BK91
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-1A
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 a pool 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 (the "Servicer") and Bank One, N.A., 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: _____________________
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-2
(FORM OF CLASS A-2 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-2-[__]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
3.762% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[______]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $136,100,000
of this Class:
CUSIP: 576434 BL 7
ISIN: US576434BL74
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-2
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 a pool 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 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 (the
"Servicer") and Bank One, N.A., 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: _________________
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-3
(FORM OF CLASS A-3 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-3-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
4.361% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $40,000,000
of this Class:
CUSIP: 576434 BM 5
ISIN: US576434BM57
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-3A
(FORM OF CLASS A-3A 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-3A-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
4.299% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $50,000,000
of this Class:
CUSIP: 576434 BN 3
ISIN: US576434BN31
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-3A
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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-4
(FORM OF CLASS A-4 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-4-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
5.012% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $75,000,000
of this Class:
CUSIP: 576434 BP 8
ISIN: US576434BP88
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-4
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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-5
(FORM OF CLASS A-5 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-5-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
6.140% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $54,135,000
of this Class:
CUSIP: 576434 BQ 4
ISIN: US576434BQ61
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-5
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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-6
(FORM OF CLASS A-6 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-6-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
4.924% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $15,000,000
of this Class:
CUSIP: 576434 BR 4
ISIN: US576434BR45
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-7
(FORM OF CLASS A-7 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") AND CERTAIN OTHER ASSETS.
Certificate No.: A-7-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
4.875% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $52,300,000
of this Class:
CUSIP: 576434 BW 3
ISIN: US576434BW30
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-7
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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-A-IO
(FORM OF CLASS A-IO 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") AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
Certificate No.: A-IO-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date: December 26, 2032
As set forth in
Pass-Through Rate: the Agreement
Initial Notional Amount of this Certificate ("Denomination"): $[______]
Initial Notional Amount of all Certificates of this Class: $135,000,000
CUSIP: 576434 BS 2
ISIN: US576434BS28
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class A-IO
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 a pool of conventional 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 specified above 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 (the "Servicer"), and Bank One, N.A., 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. 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:[___________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-M-1
(FORM OF CLASS M-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to 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") AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No.: M-1-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
5.567% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $16,540,000
of this Class:
CUSIP: 576434 BT 0
ISIN: US576434BT01
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class M-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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-M-2
(FORM OF CLASS M-2 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to 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") AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No.: M-2-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
5.727% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $12,827,000
of this Class:
CUSIP: 576434 BU 73
ISIN: US576434BU73
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class M-2
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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT A-R
(FORM OF CLASS R CERTIFICATE)
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN THREE "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.
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
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 TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
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. 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, THE CODE OR SIMILAR LAW SHALL BE VOID AND OF NO EFFECT.
Certificate No.: R-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date: December 26, 2032
Percentage Interest of this Certificate ("Denomination"): 100%
CUSIP: 576434 BY 9
ISIN: US576434BX13
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3 evidencing the
distributions allocable to the Class R Certificates with respect to
a Trust Fund consisting primarily of a pool 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 (the "Servicer"), and Bank One, N.A., 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 R
Certificate at the Corporate Trust Office of the Trustee.
No transfer of a Class 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 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 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 R Certificate must be a Permitted Transferee,
(ii) no Ownership Interest in this Class 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 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 R Certificate must agree not to
transfer an Ownership Interest in this Class 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 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: [______________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT B
(FORM OF CLASS B 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") AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No.: B-[_]
Cut-off Date: November 1, 2002
First Distribution Date: December 26, 2002
Last Scheduled Distribution Date December 26, 2032
Pass-Through Rate: The lesser of
6.227% and the
related Net WAC
Rate
Initial Certificate Principal Balance of this Certificate $[_________]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $3,376,365
of this Class:
CUSIP: 576434 BV 5
ISIN: US576434BV56
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class B
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 a pool 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 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 (the
"Servicer"), and Bank One, N.A., 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: [__________]
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT C
(FORM OF CLASS C 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") AND CERTAIN OTHER ASSETS.
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 REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR A PLAN 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, OR DELIVERS TO THE
TRUSTEE A REPRESENTATION LETTER OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. (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 THIS CERTIFICATE 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.
Certificate No. : C-[_]
Cut-off Date : November 1, 2002
First Distribution Date : December 26, 2002
Initial Certificate
Principal Balance of this
Certificate : $0
Initial Certificate
Principal Balances of all
Certificates of this Class : $0
Initial Notional Amount of
this Certificate : $675,078,365
Initial Notional Amount of
all Certificates of this
Class : $675,078,365
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : 576434 BX 1
ISIN : US576434BY95
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
Class C
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 a pool 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
Distributions in respect of this Certificate are 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 (the "Servicer") and Bank One, N.A., 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.
BANK ONE, N.A.,
as Trustee
By:_____________________________________
Countersigned:
By:_________________________________
Authorized Signatory of
BANK ONE, N.A.,
as Trustee
EXHIBIT D
(RESERVED)
EXHIBIT E
(Form of Reverse of Certificates)
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Pass-Through Certificates, Series 2002-3
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Asset Securitization Transactions, Inc. MASTR Alternative
Loan Trust 2002-3, 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.
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 MASTER SERVICER
[date]
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Bank One N.A.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Re: 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 (the "Master Servicer") and custodian, and Bank One, N.A.,
as trustee, In connection with MASTR Alternative Loan Trust 2002-3,
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
Master Servicer acting on behalf of the Trustee, hereby certifies that, as to
each 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 Master Servicer 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 Master Servicer 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 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Master Servicer
By:_____________________________________
Name:
Title:
EXHIBIT G
FORM OF FINAL CERTIFICATION OF MASTER SERVICER
[date]
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Bank One N.A.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
UBS Warburg Real Estate
Securities Inc
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Re: 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 Bank One, N.A., as trustee, MASTR Alternative Loan
Trust 2002-3, 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
Master Servicer, acting on behalf of the Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on 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 Master Servicer 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 Master Servicer 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 Master
Servicer 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 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.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Master Servicer
By:_____________________________________
Name:
Title:
EXHIBIT H
FORM OF CLASS R TRANSFER AFFIDAVIT
MASTR ALTERNATIVE LOAN TRUST 2002-3
Mortgage Asset Securitization Transactions, Inc.
Mortgage Pass-Through Certificates
Series 2002-3
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of _______, the proposed Transferee
of an Ownership Interest in a Class R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement dated as of September 1, 2002
(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 Bank One, N.A., 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 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
Personally appeared before me the above-named _______, known or
proved to me to be the same person who executed the foregoing instrument and to
be the __________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of _______, 200_.
________________________________________
NOTARY PUBLIC
My Commission expires the ______ day of
________________, 200_.
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:
Bank One, N.A.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Alternative
Loan Trust 2002-3, Mortgage Pass-Through Certificates, Series
2002-3, Class []
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 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 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:
Bank One, N.A.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Alternative
Loan Trust 2002-3, Mortgage Pass-Through Certificates, Series
2002-3, 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:
Bank One, N.A.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Alternative
Loan Trust 2002-3, Mortgage Pass-Through Certificates, Series
2002-3, 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--MALT 2002-3
Re: Pooling and Servicing Agreement, dated as of September 1, 2002, 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 Bank One,
N.A., 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 YIELD MAINTENANCE AGREEMENT)
[UBS WARBURG LOGO]
Date: 20 November 2002
To: [Name of Trustee], not individually but solely as
trustee of MALT TRUST 2002-3
Attention:
Fax No.:
From: UBS AG, London Branch ("UBS")
Subject: Interest Rate Cap Transaction
UBS REF:
Dear Sirs
The purpose of this communication is to confirm the terms and conditions of the
Transaction entered into between us on the Trade Date specified below. This
Confirmation constitutes a "Confirmation" as referred to in the Agreement
specified below.
The definitions contained in the 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Confirmation. In the event of any inconsistency between any of the
definitions listed above and this Confirmation, this Confirmation will govern.
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, this Confirmation supplements, forms a part of, and is subject to an
agreement in the form of the ISDA Master (Multicurrency - Cross Border), with
such modifications as are specified herein, as if we had executed an agreement
in such form (but without any Schedule to the Agreement) on the Trade Date
hereof (the "Agreement"), and in such form with the Schedule thereto specifying
that (i) the governing law is the law of the State of New York, (ii) the
Termination Currency is U.S. Dollars, and (iii) Loss and Second Method apply.
All provisions contained or incorporated by referenced in the Agreement shall
govern this Confirmation except as expressly modified below. In the event of any
inconsistency between the provisions of that Agreement and this Confirmation,
this Confirmation will prevail for the purpose of this Transaction.
The terms of the particular Swap Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS
-------------
Trade Date: 19 November 2002
Effective Date 25 November 2002
Termination Date: 25 July 2005 , subject to adjustment in
accordance with the Modified Following Business
Day Convention.
Notional Amount: Initially USD 100,000,000.00 amortising as per
the Amortising Schedule below
AMORTISING SCHEDULE PERIOD END DATE (to but CALCULATION [NOTIONAL]
PERIOD START DATE [excluding] such date) AMOUNT
------------------- ------------------------ ----------------------
EFFECTIVE DATE
25 DECEMBER 2002 25 DECEMBER 2002 100,000,000.00
25 JANUARY 2003 25 JANUARY 2003 95,621,625.00
25 FEBRUARY 2003 25 FEBRUARY 2003 91,304,716.00
25 MARCH 2003 25 MARCH 2003 87,500,698.00
25 APRIL 2003 25 APRIL 2003 83,944,369.00
25 MAY 2003 25 MAY 2003 80,427,043.00
25 JUNE 2003 25 JUNE 2003 76,948,300.00
25 JULY 2003 25 JULY 2003 73,507,727.00
25 AUGUST 2003 25 AUGUST 2003 70,104,912.00
25 SEPTEMBER 2003 25 SEPTEMBER 2003 66,739,450.00
25 OCTOBER 2003 25 OCTOBER 2003 63,410,939.00
25 NOVEMBER 2003 25 NOVEMBER 2003 60,118,982.00
25 DECEMBER 2003 25 DECEMBER 2003 56,863,186.00
25 JANUARY 2004 25 JANUARY 2004 53,643,162.00
25 FEBRUARY 2004 25 FEBRUARY 2004 50,458,525.00
25 MARCH 2004 25 MARCH 2004 47,308,894.00
25 APRIL 2004 25 APRIL 2004 44,193,894.00
25 MAY 2004 25 MAY 2004 41,113,151.00
25 JUNE 2004 25 JUNE 2004 38,066,297.00
25 JULY 2004 25 JULY 2004 35,052,968.00
25 AUGUST 2004 25 AUGUST 2004 32,072,801.00
25 SEPTEMBER 2004 25 SEPTEMBER 2004 29,125,442.00
25 OCTOBER 2004 25 OCTOBER 2004 26,210,536.00
25 NOVEMBER 2004 25 NOVEMBER 2004 23,327,734.00
25 DECEMBER 2004 25 DECEMBER 2004 20,476,691.00
25 JANUARY 2005 25 JANUARY 2005 17,657,065.00
25 FEBRUARY 2005 25 FEBRUARY 2005 14,868,516.00
25 MARCH 2005 25 MARCH 2005 12,110,712.00
25 APRIL 2005 25 APRIL 2005 9,383,320.00
25 MAY 2005 25 MAY 2005 6,686,013.00
25 JUNE 2005 25 JUNE 2005 4,018,468.00
TERMINATION DATE 1,380,362.00
The dates in the above schedule with the exception of the Effective Date will be
subject to adjustment in accordance with the Modified Following Business Day
Convention.
Seller of the Cap: UBS
Buyer of the Cap: Counterparty
Calculation Agent: UBS AG, unless otherwise stated in the Schedule
to the Master Agreement.
Business Days: New York, London
Broker: None
FIXED AMOUNTS
-------------
Fixed Rate Payer: Counterparty
Fixed Amount: USD 50,000.00
Fixed Rate Payer
Payment Date: 26 November 2002.
Business Day Convention: Following
FLOATING AMOUNTS
----------------
Floating Rate Payer: UBS
Cap Rate: 6 percent per annum
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One Month
Spread: None
Floating Rate Day Count
Fraction: Actual/360
Floating Rate Payer 24 JANUARY, 25 FEBRUARY, 25 MARCH, 25 APRIL, 25
Payment Dates: MAY, 25 JUNE, 25 JULY, 25 AUGUST, 25 SEPTEMBER, 25
OCTOBER, 25 NOVEMBER AND 25 DECEMBER, IN EACH
YEAR, FROM AND INCLUDING 25 DECEMBER 2002, UP TO
AND INCLUDING THE TERMINATION DATE, subject to
adjustment in accordance with the Business Day
Convention specified below.
Reset Dates: First day of each Calculation Period.
Business Day Convention: Modified Following - the date will be the first
following Business Day unless that day falls in
the next Calendar month, in which case that date
will be the first preceding day that is a Business
Day
ADDITIONAL PROVISIONS
(i) No Default by Fixed Rate Payer. Notwithstanding anything in the Agreement
to the contrary, if Fixed Rate Payer has paid Floating Rate Payer the
Fixed Amount when and where due, no Event of Default or Termination Events
shall apply to Fixed Rate Payer. Upon payment of the Fixed Amount,
Floating Rate Payer may not designate an Early Termination Date with
respect to Fixed Rate Payer.
(ii) Governing Law: NEW YORK, WITHOUT REFERENCE TO THE CHOICE OR CONFLICTS
OF LAW PROVISIONS THEREOF.
RELATIONSHIP BETWEEN PARTIES
----------------------------
Each party will be deemed to represent to the other party on the date on which
it enters into this Transaction that (in the absence of a written Agreement
between the parties which expressly imposes affirmative obligations to the
contrary for this Transaction):-
(a) Non-Reliance. Each party is acting for its own account, and has made its own
independent decisions to enter into this Transaction and this such Transaction
is appropriate or proper for it based upon its own judgement and upon advice
from such advisers as it has deemed necessary. Each party is not relying on any
communication (written or oral) of the other party as investment advice or as a
recommendation to enter into this Transaction; it being understood that
information and explanation relating to the terms and conditions of this
Transaction shall not be considered investment advice or a recommendation to
enter into this Transaction. No communication (written or oral) received from
the other party shall be deemed to be an assurance or guarantee as to the
expected results of this Transaction.
(b) Assessment and Understanding. Each party is capable of assessing the merits
of and understands (on its own behalf or through independent professional
advice), and accepts, the terms, conditions and risks of this Transaction. Each
party is also capable of assuming and assumes, the risks of this Transaction.
(c) Status of the Parties. Neither party is acting as a fiduciary for or as
an adviser to the other in respect of this Transaction.
References in this clause to "a party" shall, in the case of UBS AG and where
the context so allows, include references to any affiliate of UBS AG.
ACCOUNT DETAILS
Currency: USD
Correspondent Bank: UBS AG, XXXXXXXX BRANCH
Swift Address: XXXXXX00XXX
Favour: UBS AG LONDON BRANCH
Swift Address: XXXXXX0XXXX
Account No: 101-wa-140007-000
Further Credit To:
Swift Address:
Account No:
OFFICES
(a) The office of UBS for the Interest Rate Cap Transaction is London ; and
(b) The office of Counterparty for the Interest Rate Cap Transaction is
LONDON
CONTACT NAMES AT UBS:
Pre Value Payments: Pre Value Payment (00) 00 0000 0000
Investigations:
Post Value Payments: Post Value Payment (00) 00 0000 0000
Investigations:
Confirmation Queries: Confirmation Control: (00) 00 0000 0000
ISDA Documentation: Credit Risk Management: (00) 00 0000 0000
Telex: 000000 XXXX X
Swift: UBSWGB2L
Fax: (00) 00 0000 0000/2990
Address: UBS AG
000 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Please confirm that the foregoing correctly sets forth the terms and conditions
of our agreement by executing a copy of this Confirmation and returning it to us
or by sending to us a letter or facsimile substantially similar to this letter,
which letter or facsimile sets forth the material terms of the Transaction to
which this Confirmation relates and indicates your agreement to those terms or
by sending to us a return letter or facsimile in the form attached.
Yours Faithfully
For and on Behalf of
UBS AG, London Branch
By: By:
Name : Xxxxx Xxxxxx Name : Xxxxxx Xxxxx
Title: Associate Director Title: Associate Director
Acknowledged and agreed by MALT TRUST 2000-3as of the Trade Date specified
above:
By: By:
Name : Name :
Title : Title:
UBS Warburg is a business group of UBS AG. UBS AG is a member of the London
Stock Exchange and is regulated in the UK by the Financial Services Authority.
Representatives of UBSWL introduce trades to UBS AG via UBSWL.
[UBS WARBURG LOGO]
INTEREST RATE CAP TRANSACTION - ACKNOWLEDGEMENT
To: UBS AG, London Branch
Attn: Xxxx Xxxxx
Fax No: (00) 00 0000 0000 / 2685
From: MALT TRUST 2002-3
Fax No: 0000000000000
Subject: Interest Rate Cap Transaction
UBS REF:
C/P Ref: Please Advise
We acknowledge receipt of your communication dated 20 November 2002 with respect
to the above referenced Transaction between UBS AG, London Branch and MALT TRUST
2000-3with a Trade Date of 14 November 2002 and a Termination Date of 25 July
2005 and confirm that such communication correctly sets forth the terms of our
agreement relating to the Transaction described therein. We confirm that no
further document will be required in respect of this Transaction.
Our Payment Instructions are as follows:
Currency: USD
Correspondent Bank: AS PER STANDARD SETTLEMENT INSTRUCTIONS - OTHERWISE
PLEASE ADVISE
Favour
Swift Address:
Account No.:
Further Credit To:
Swift Address:
Account No.:
Signed For and On Behalf Of MALT TRUST 2000-3
By:____________________________________ By:____________________________________
Name: Name:
Title: Title:
EXHIBIT N
(FORM OF MBIA INSURANCE POLICY)
CERTIFICATE GUARANTY INSURANCE POLICY
OBLIGATIONS: MASTR Alternative Loan Trust 2002-3 POLICY NUMBER: 39710
Mortgage Pass-Through Certificates, Series 2002-3
$52,300,000 4.875% Class A-7 Certificates
MBIA Insurance Corporation (the "Insurer"), in consideration of the
payment of the premium and subject to the terms of this Certificate Guaranty
Insurance Policy (this "Policy"), hereby unconditionally and irrevocably
guarantees to any Owner that an amount equal to each full and complete Insured
Payment will be received from the Insurer by Bank One, N.A., or its successors,
as trustee for the Owners (the "Trustee"), on behalf of the Owners, for
distribution by the Trustee to each Owner of each Owner's proportionate share of
the Insured Payment. The Insurer's obligations hereunder with respect to a
particular Insured Payment shall be discharged to the extent funds equal to the
applicable Insured Payment are received by the Trustee, whether or not such
funds are properly applied by the Trustee. Insured Payments shall be made only
at the time set forth in this Policy, and no accelerated Insured Payments shall
be made regardless of any acceleration of the Obligations, unless such
acceleration is at the sole option of the Insurer.
Notwithstanding the foregoing paragraph, this Policy does not cover
shortfalls, if any, attributable to the liability of the Issuer, the Trust or
the Trustee for withholding taxes, if any (including interest and penalties in
respect of any such liability). This Policy does not provide credit enhancement
for any Class of Certificates other than the Class A-7 Certificates.
The Insurer will pay any Insured Payment that is a Preference Amount on
the Business Day following receipt on a Business Day by the Fiscal Agent (as
described below) of (a) a certified copy of the order requiring the return of a
preference payment, (b) an opinion of counsel satisfactory to the Insurer that
such order is final and not subject to appeal, (c) an assignment in such form as
is reasonably required by the Insurer, irrevocably assigning to the Insurer all
rights and claims of the Owner relating to or arising under the Obligations
against the debtor which made such preference payment or otherwise with respect
to such preference payment and (d) appropriate instruments to effect the
appointment of the Insurer as agent for such Owner in any legal proceeding
related to such preference payment, such instruments being in a form
satisfactory to the Insurer, provided that if such documents are received after
12:00 noon, New York City time, on such Business Day, they will be deemed to be
received on the following Business Day. Such payments shall be disbursed to the
receiver or trustee in bankruptcy named in the final order of the court
exercising jurisdiction on behalf of the Owner and not to any Owner directly
unless such Owner has returned principal or interest paid on the Obligations to
such receiver or trustee in bankruptcy, in which case such payment shall be
disbursed to such Owner.
The Insurer will pay any other amount payable hereunder no later than
12:00 noon, New York City time, on the later of the Distribution Date on which
the related Deficiency Amount is due or the second Business Day following
receipt in New York, New York on a Business Day by State Street Bank and Trust
Company, N.A., as Fiscal Agent for the Insurer, or any successor fiscal agent
appointed by the Insurer (the "Fiscal Agent"), of a Notice (as described below),
provided that if such Notice is received after 12:00 noon, New York City time,
on such Business Day, it will be deemed to be received on the following Business
Day. If any such Notice received by the Fiscal Agent is not in proper form or is
otherwise insufficient for the purpose of making claim hereunder, it shall be
deemed not to have been received by the Fiscal Agent for purposes of this
paragraph, and the Insurer or the Fiscal Agent, as the case may be, shall
promptly so advise the Trustee and the Trustee may submit an amended Notice.
Insured Payments due hereunder, unless otherwise stated herein, will be
disbursed by the Fiscal Agent to the Trustee on behalf of the Owners by wire
transfer of immediately available funds in the amount of the Insured Payment
less, in respect of Insured Payments related to Preference Amounts, any amount
held by the Trustee for the payment of such Insured Payment and legally
available therefor.
The Fiscal Agent is the agent of the Insurer only, and the Fiscal Agent
shall in no event be liable to Owners for any acts of the Fiscal Agent or any
failure of the Insurer to deposit, or cause to be deposited, sufficient funds to
make payments due under this Policy.
Subject to the terms of the Agreement, the Insurer shall be subrogated to
the rights of each Owner to receive payments under the Obligations to the extent
of any payment by the Insurer hereunder.
As used herein, the following terms shall have the following meanings:
"Agreement" means the Pooling and Servicing Agreement dated as of November
1, 2002, 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 the Trustee, as trustee, without regard
to any amendment or supplement thereto, unless such amendment or supplement has
been approved in writing by the Insurer.
"Business Day" means any day other than (a) a Saturday or a Sunday (b) a
day on which the Insurer is closed or (c) a day on which banking institutions in
New York City or in the city in which the corporate trust office of the Trustee
under the Agreement is located are authorized or obligated by law or executive
order to close.
"Deficiency Amount" means (a) as to any Distribution Date, the sum of (1)
the excess, if any, of (x) the Accrued Certificate Interest for the Class A-7
Certificates over (y) the amount of the Available Funds available to be
distributed in respect of the Class A-7 Certificates on such Distribution Date
pursuant to clause (iii) of Section 4.02(a) of the Agreement plus (2) if the
Insurer so elects, in its sole discretion, the amount by which the Class
Certificate Balance of the Class A-7 Certificates exceeds the aggregate Stated
Principal Balance of the Mortgage Loans and (b) on the Last Scheduled
Distribution Date, any shortfall in amounts available to pay the Class
Certificate Balance of the Class A-7 Certificates (after taking into account all
distributions to be made on such date).
"Insured Payment" means (a) as of any Distribution Date, any Deficiency
Amount and (b) any Preference Amount.
"Notice" means the telephonic or telegraphic notice, promptly confirmed in
writing by facsimile substantially in the form of Exhibit A attached hereto, the
original of which is subsequently delivered by registered or certified mail,
from the Trustee specifying the Insured Payment which shall be due and owing on
the applicable Distribution Date.
"Owner" means each Class A-7 Certificateholder (as defined in the
Agreement) who, on the applicable Distribution Date, is entitled under the terms
of the applicable Obligations to payment thereunder.
"Preference Amount" means any amount previously distributed to an Owner on
the Obligations that is recoverable and sought to be recovered as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code (11 U.S.C.), as amended from time to time, in accordance with a final
nonappealable order of a court having competent jurisdiction.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings set forth in the Agreement as of the date of execution
of this Policy, without giving effect to any subsequent amendment to or
modification of the Agreement unless such amendment or modification has been
approved in writing by the Insurer.
Any notice hereunder or service of process on the Fiscal Agent may be made
at the address listed below for the Fiscal Agent or such other address as the
Insurer shall specify in writing to the Trustee.
The notice address of the Fiscal Agent is 15th Floor, 00 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Municipal Registrar and Paying Agency, or such
other address as the Fiscal Agent shall specify to the Trustee in writing.
THIS POLICY IS BEING ISSUED UNDER AND PURSUANT TO, AND SHALL BE CONSTRUED
UNDER, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF.
The insurance provided by this Policy is not covered by the
Property/Casualty Insurance Security Fund specified in Article 76 of the New
York Insurance Law.
This Policy is not cancelable for any reason. The premium on this Policy
is not refundable for any reason, including payment, or provision being made for
payment, prior to maturity of the Obligations.
IN WITNESS WHEREOF, the Insurer has caused this Policy to be executed and
attested this 26th day of November, 2002.
MBIA INSURANCE CORPORATION
By _____________________________________
President
Attest:
By _____________________________________
Assistant Secretary
EXHIBIT A
TO CERTIFICATE GUARANTY INSURANCE
POLICY NUMBER: 39710
NOTICE UNDER CERTIFIATE GUARANTY
INSURANCE POLICY NUMBER: 00000
Xxxxx Xxxxxx Bank and Trust Company, N.A., as Fiscal Agent
for MBIA Insurance Corporation
00xx Xxxxx
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Municipal Registrar and
Paying Agency
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
The undersigned, a duly authorized officer of [NAME OF TRUSTEE], as
trustee (the "Trustee"), hereby certifies to State Street Bank and Trust
Company, N.A. (the "Fiscal Agent") and MBIA Insurance Corporation (the
"Insurer"), with reference to Certificate Guaranty Insurance Policy Number:
39710 (the "Policy") issued by the Insurer in respect of the MASTR Alternative
Loan Trust 2002-3, Mortgage Pass-Through Certificates, Series 2002-3,
$52,300,000 4.875% Class A-7 Certificates (the "Obligations"), that:
(a) the Trustee is the trustee under the Pooling and Servicing
Agreement dated as of November 1, 2002, 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 the Trustee, as trustee for the Owners;
the amount due under clause (a) of the definition of Deficiency
Amount for the Distribution Date occurring on [________________] the
"Applicable Distribution Date") is $[________________];
the amount due under clause (b) of the definition of Deficiency
Amount for the Applicable Distribution Date is $[________________];
the sum of the amounts listed in paragraphs (b) and (c) above is
$[________________] (the "Deficiency Amount");
the amount of previously distributed payments on the Obligations
that is recoverable and sought to be recovered as a voidable preference by
a trustee in bankruptcy pursuant to the Bankruptcy Code in accordance with
a final nonappealable order of a court having competent jurisdiction is
$[________________] (the "Preference Amount");
the total Insured Payment due is $[__________], which amount equals
the sum of the Deficiency Amount and the Preference Amount;
the Trustee is making a claim under and pursuant to the terms of the
Policy for the dollar amount of the Insured Payment set forth in (d) above
to be applied to the payment of the Deficiency Amount for the Applicable
Distribution Date in accordance with the Agreement and for the dollar
amount of the Insured Payment set forth in (e) above to be applied to the
payment of any Preference Amount; and
the Trustee directs that payment of the Insured Payment be made to
the following account by bank wire transfer of federal or other
immediately available funds in accordance with the terms of the Policy:
[TRUSTEE'S ACCOUNT NUMBER].
Any capitalized term used in this Notice and not otherwise defined herein
shall have the meaning assigned thereto in the Policy.
Any Person Who Knowingly And With Intent To Defraud Any Insurance Company Or
Other Person Files An Application For Insurance Or Statement Of Claim Containing
Any Materially False Information, Or Conceals For The Purpose Of Misleading,
Information Concerning Any Fact Material Thereto, Commits A Fraudulent Insurance
Act, Which Is A Crime, And Shall Also Be Subject To A Civil Penalty Not To
Exceed Five Thousand Dollars And The Stated Value Of The Claim For Each Such
Violation.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Notice
under the Policy as of the [____] day of [________________], [____].
[NAME OF TRUSTEE], as Trustee
By _____________________________________
Title___________________________________
