EXHIBIT 4
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.,
Depositor
UBS REAL ESTATE SECURITIES INC.,
Transferor
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer, Trust Administrator and Custodian
and
JPMORGAN CHASE BANK,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2004
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MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
MORTGAGE PASS-THROUGH CERTIFICATES, Series 2004-10
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 Execution and Delivery of Certificates......................
Section 2.06 REMIC Matters...............................................
Section 2.07 Covenants of the Master Servicer............................
Section 2.08 Representations and Warranties of the Master Servicer.......
Section 2.09 Representations and Warranties of the Custodian.............
ARTICLE III
ADMINISTRATION AND MASTER
SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicing of Mortgage Loans..........................
Section 3.02 Monitoring of Servicers.....................................
Section 3.03 [Reserved]..................................................
Section 3.04 Rights of the Depositor and the Trustee in Respect of
the Master Servicer.........................................
Section 3.05 Trustee to Act as Master Servicer...........................
Section 3.06 Protected Accounts..........................................
Section 3.07 Collection of Mortgage Loan Payments; Collection
Account; Distribution Account...............................
Section 3.08 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.09 Access to Certain Documentation and Information
Regarding the Mortgage Loans................................
Section 3.10 Permitted Withdrawals from the Collection Account and
Distribution Account........................................
Section 3.11 Maintenance of Hazard Insurance.............................
Section 3.12 Presentment of Claims and Collection of Proceeds............
Section 3.13 Maintenance of the Primary Insurance Policies...............
Section 3.14 Realization upon Defaulted Mortgage Loans...................
Section 3.15 REO Property................................................
Section 3.16 Due-on-Sale Clauses; Assumption Agreements..................
Section 3.17 Trustee to Cooperate; Release of Mortgage Files.............
Section 3.18 Documents, Records and Funds in Possession of Master
Servicer and the Custodian 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 on the Certificates..............
Section 4.03 Allocation of Realized Losses...............................
Section 4.04 Distribution Date Statements to Certificateholders..........
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates....................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...........
Section 5.04 Persons Deemed Owners.......................................
Section 5.05 Access to List of Certificateholders' Names and Addresses...
Section 5.06 Maintenance of Office or Agency.............................
ARTICLE VI
THE DEPOSITOR, THE CUSTODIAN AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Depositor, the Master
Servicer and the Custodian..................................
Section 6.02 Merger or Consolidation of the Depositor, the Master
Servicer and the Custodian..................................
Section 6.03 Limitation on Liability of the Depositor, the
Transferor, the Master Servicer, the Custodian and Others...
Section 6.04 Limitation on Resignation of Master Servicer................
Section 6.05 Sale and Assignment of Master Servicing Rights..............
Section 6.06 Fees of the Custodian.......................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...........................................
Section 7.02 Trustee to Act; Appointment of Successor....................
Section 7.03 Notification to Certificateholders..........................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE MASTER SERVICER
Section 8.01 Duties of Trustee...........................................
Section 8.02 Certain Matters Affecting the Trustee.......................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.......
Section 8.04 Trustee May Own Certificates................................
Section 8.05 Trustee's Fees and Expenses.................................
Section 8.06 Eligibility Requirements for Trustee........................
Section 8.07 Resignation and Removal of Trustee..........................
Section 8.08 Successor Trustee...........................................
Section 8.09 Merger or Consolidation of Trustee..........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee...............
Section 8.11 Tax Matters.................................................
Section 8.12 Periodic Filings............................................
ARTICLE IX
CONCERNING THE TRUST ADMINISTRATOR
Section 9.01 Duties of Trust Administrator...............................
Section 9.02 Certain Matters Affecting the Trust Administrator...........
Section 9.03 Trust Administrator Not Liable for Certificates or
Mortgage Loans..............................................
Section 9.04 Trust Administrator May Own Certificates....................
Section 9.05 Trust Administrator's Fees and Expenses.....................
Section 9.06 Eligibility Requirements for Trust Administrator............
Section 9.07 Resignation and Removal of Trust Administrator..............
Section 9.08 Successor Trust Administrator...............................
Section 9.09 Merger or Consolidation of Trust Administrator..............
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Purchase of All Mortgage
Loans.......................................................
Section 10.02 Final Distribution on the Certificates......................
Section 10.03 Additional Termination Requirements.........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment...................................................
Section 11.02 Recordation of Agreement; Counterparts......................
Section 11.03 Governing Law...............................................
Section 11.04 Intention of Parties........................................
Section 11.05 Notices.....................................................
Section 11.06 Severability of Provisions..................................
Section 11.07 Assignment..................................................
Section 11.08 Limitation on Rights of Certificateholders..................
Section 11.09 Inspection and Audit Rights.................................
Section 11.10 Certificates Nonassessable and Fully Paid...................
SCHEDULES
Schedule I Mortgage Loan Schedule......................................
Schedule II Representations and Warranties as to the Mortgage Loans.....
Schedule III Class P Prepayment Charges Mortgage Loan Schedule...........
EXHIBITS
Exhibit A-1-A-1 Form of Class 1-A-1 Certificate..........................
Exhibit A-2-A-1 Form of Class 2-A-1 Certificate..........................
Exhibit A-2-A-2 Form of Class 2-A-2 Certificate..........................
Exhibit A-3-A-1 Form of Class 3-A-1 Certificate .........................
Exhibit A-3-A-2 Form of Class 3-A-2 Certificate..........................
Exhibit A-R Form of Class A-LR or A-R Certificate....................
Exhibit B Form of Class X-0, X-0 or B-3 Certificate................
Exhibit C Form of Class X-0, X-0 or B-6 Certificate................
Exhibit D Form of Class P Certificate..............................
Exhibit E Form of Reverse of Certificates..........................
Exhibit F Form of Initial Certification of Custodian...............
Exhibit G Form of Final Certification of Custodian.................
Exhibit H Form of Transfer Affidavit...............................
Exhibit I Form of Transferor Certificate...........................
Exhibit J Form of Investment Letter (Non-Rule 144A)................
Exhibit K Form of Rule 144A Letter.................................
Exhibit L Form of Request for Release of Documents.................
Exhibit M Form of Certification to be Provided with Form 10-K......
THIS POOLING AND SERVICING AGREEMENT, dated as of September 1, 2004,
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., a Delaware corporation,
as depositor (the "Depositor"), UBS REAL ESTATE SECURITIES INC., a Delaware
corporation, as transferor (the "Transferor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as master servicer (in such
capacity, the "Master Servicer"), as trust administrator (in such capacity, the
"Trust Administrator") and as custodian (in such capacity, the "Custodian") and
JPMORGAN CHASE BANK, a New York banking corporation, as trustee (the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund is being conveyed
to the Trustee to create a trust for the benefit of the Certificateholders. The
Trust Fund for federal income tax purposes will consist of two REMICs. The
Lower-Tier REMIC will consist of all of the assets constituting the Trust Fund
(other than any Class P Prepayment Charges, the Lower-Tier REMIC Regular
Interests and proceeds thereof in the Distribution Account) and will be
evidenced by the Lower-Tier REMIC Regular Interests (which will be
uncertificated and will represent the "regular interests" in the Lower-Tier
REMIC) and the Class A-LR Certificates as the single "residual interest" in the
Lower-Tier REMIC. The Trustee will hold the Lower-Tier REMIC Regular Interests.
The Upper-Tier REMIC will consist of the Lower-Tier REMIC Regular Interests and
all proceeds thereof in the Distribution Account and will be evidenced by the
Regular Certificates (which will represent the "regular interests" in the
Upper-Tier REMIC) and the Class A-UR Interest as the single "residual interest"
of the Upper-Tier REMIC. In addition, the Class P Certificates will represent
beneficial ownership of the Class P Prepayment Charges, which portion 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 Class A-R Certificates will represent the
Class A-UR Interest.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
Integral
Multiples
Initial Class Pass-Through Minimum in Excess of
Principal Balance Rate Denomination Minimum
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Class 1-A-1 $ 60,000,000 (1) $ 25,000 $1
Class 2-A-1 $ 95,735,000 (2) $ 25,000 $1
Class 2-A-2 $ 2,961,000 (2) $ 25,000 $1
Class 3-A-1 $ 61,159,000 (3) $ 25,000 $1
Class 3-A-2 $ 1,891,000 (3) $ 25,000 $1
Class A-LR $ 50 (1) $ 50 N/A
Class A-R((4)) $ 50 (1) $ 50 N/A
Class B-1 $ 6,641,000 (5) $ 25,000 $1
Class B-2 $ 3,083,000 (5) $ 25,000 $1
Class B-3 $ 1,897,000 (5) $ 25,000 $1
Class B-4 $ 1,660,000 (5) $ 25,000 $1
Class B-5 $ 1,305,000 (5) $ 25,000 $1
Class B-6 $ 830,122 (5) $ 25,000 $1
Class P ((6)) N/A N/A $1
(1) The Pass-Through Rate for the Class 1-A-1, Class A-LR and Class A-R
Certificates for each Distribution Date will be a per annum rate equal to
the weighted average of the Net Mortgage Rates on the Group 1 Mortgage
Loans, weighted on the basis of the respective Scheduled Principal
Balances, as of the first day of the related Interest Accrual Period
(after taking into account scheduled payments of principal on that date).
(2) The Pass-Through Rate for the Class 2-A-1 and Class 2-A-2 Certificates for
each Distribution Date will be a per annum rate equal to the weighted
average of the Net Mortgage Rates on the Group 2 Mortgage Loans, weighted
on the basis of the respective Scheduled Principal Balances, as of the
first day of the related Interest Accrual Period (after taking into
account scheduled payments of principal on that date).
(3) The Pass-Through Rate for the Class 3-A-1 and Class 3-A-2 Certificates for
each Distribution Date will be a per annum rate equal to the weighted
average of the Net Mortgage Rates on the Group 3 Mortgage Loans, weighted
on the basis of the respective Scheduled Principal Balances, as of the
first day of the related Interest Accrual Period (after taking into
account scheduled payments of principal on that date).
(4) The Class A-R Certificates will represent the Class A-UR Interest.
(5) The Pass-Through Rate for the Class B-1, B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates for each Distribution Date will be a per
annum rate equal to the weighted average (weighted on the basis of the
portion of the aggregate Class Principal Balance of the Subordinate
Certificates attributable to each Loan Group as of the first day of the
related Interest Accrual Period (after taking into account scheduled
payments of principal on that date)) of the weighted average of the Net
Mortgage Rates on the Mortgage Loans in each Loan Group, weighted on the
basis of the respective Scheduled Principal Balances, as of the first day
of the related Interest Accrual Period (after taking into account
scheduled payments of principal on that date).
(6) The Class P Certificates shall not have an aggregate principal balance and
shall not be entitled to distributions in respect of principal or
interest. The Class P certificates shall be entitled to Class P Prepayment
Charges collected.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates............ All Classes of Offered Certificates other
than the Physical Certificates.
ERISA-Restricted Certificates...... The Residual Certificates and the Private
Certificates.
Group 1 Certificates............... The Class 1-A-1, Class A-LR and Class A-R
Certificates.
Group 2 Certificates............... The Class 2-A-1 and Class 2-A-2
Certificates.
Group 3 Certificates............... The Class 3-A-1 and Class 3-A-2
Certificates.
Offered Certificates............... All Classes of Certificates other than the
Private Certificates.
Physical Certificates.............. The Private Certificates and the Residual
Certificates.
Private Certificates............... The Class B-4, Class B-5, Class B-6 and
Class P Certificates.
Rating Agencies.................... S&P and Fitch.
Regular Certificates............... All Classes of Certificates, other than
the Residual Certificates and the Class P
Certificates.
Residual Certificates.............. The Class A-LR and Class A-R Certificates.
Senior Certificates................ The Group 1 Certificates, Group 2
Certificates and Group 3 Certificates.
Subordinate Certificates........... The Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6
Certificates.
Defined terms and provisions herein relating to statistical rating
agencies not designated above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accrued Certificate Interest: With respect to any Distribution Date
and any interest-bearing Class, the sum of (i) one month's interest accrued
during the related Interest Accrual Period at the Pass-Through Rate for such
Class on the related Class Principal Balance, subject to reduction as provided
in Section 4.02(c) and (ii) any Class Unpaid Interest Amounts for such Class.
Adjustment Amount: With respect to the Special Hazard Loss Coverage
Amount and, with respect to each anniversary of September 1, 2004, the amount,
if any, by which the Special Hazard Loss Coverage Amount (without giving effect
to the deduction of the Adjustment Amount for such anniversary) exceeds the
greatest of (x) the product of 1% and the outstanding principal balance of all
the related Mortgage Loans on the Distribution Date immediately preceding such
anniversary, (y) the outstanding principal balance of related Mortgage Loans
secured by Mortgaged Properties in the highest California zip code concentration
on the Distribution Date immediately preceding such anniversary and (z) twice
the outstanding principal balance of the related Mortgage Loan which has the
largest outstanding principal balance on the Distribution Date immediately
preceding such anniversary.
Adjustment Date: As to each Mortgage Loan, the date on which the
Mortgage Rate is adjusted in accordance with the terms of the related Mortgage
Note and Mortgage.
Advance: An advance of principal or interest required to be made by
the applicable Servicer pursuant to the related Servicing Agreement or required
to be made by the Master Servicer with respect to any Distribution Date pursuant
to Section 4.01.
Affiliate: When used with reference to a specified Person, another
Person that (i) directly or indirectly controls or is controlled by or is under
common control with the specified Person, (ii) is an officer of, partner in or
trustee of, or serves in a similar capacity with respect to, the specified
Person or of which the specified Person is an officer, partner or trustee, or
with respect to which the specified Person serves in a similar capacity or (iii)
directly or indirectly is the beneficial owner of 10% or more of any class of
equity securities of the specified Person or of which the specified Person is
directly or indirectly the owner of 10% or more of any class of equity
securities.
Aggregate Pool Principal Balance: As to any Distribution Date, the
aggregate of the Scheduled Principal Balances of the Mortgage Loans that were
Outstanding Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date.
Aggregate Subordinate Optimal Principal Amount: For any Distribution
Date, the sum of the Subordinate Optimal Principal Amounts for all of the Loan
Groups.
Aggregate Subordinate Percentage: As of any Distribution Date, the
aggregate Class Principal Balance for the Subordinate Certificates immediately
prior to such Distribution Date divided by the sum of the Group Pool Principal
Balance for all of the Loan Groups.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Allocable Share: For any Distribution Date and each Class of
Subordinate Certificates, the portion of the Aggregate Subordinate Optimal
Principal Amount allocable to such Class, equal to the product of the Aggregate
Subordinate Optimal Principal Amount on such Distribution Date and a fraction,
the numerator of which is the related Class Principal Balance thereof and the
denominator of which is the aggregate of the Class Principal Balances of the
Subordinate Certificates; provided, that no class of such Subordinate
Certificates will be entitled on any Distribution Date to receive distributions
pursuant to clauses (ii), (iii) and (iv) of the definition of Subordinate
Optimal Principal Amount unless the Class Prepayment Distribution Trigger for
that class is satisfied for that Distribution Date; if the Class Prepayment
Distribution Trigger is not satisfied for an outstanding class of such
Subordinate Certificates, those amounts will be distributable to the remaining
classes of such Subordinate Certificates for which the Class Prepayment
Distribution Trigger is satisfied, pro rata, according to Certificate Principal
Balance.
Alternate Cut-Off Date Mortgage Loans: The Mortgage Loans that are
listed as "Alternate Cut-Off Date Mortgage Loans" on the Mortgage Loan Schedule.
Amount Available for Group 1 Principal: As to any Distribution Date,
Group 1 Available Funds for such Distribution Date reduced by the aggregate
amount distributable on such Distribution Date in respect of interest on the
Group 1 Certificates pursuant to Section 4.02(a)(i) priority first sub-clause
(A).
Amount Available for Group 2 Principal: As to any Distribution Date,
Group 2 Available Funds for such Distribution Date reduced by the aggregate
amount distributable on such Distribution Date in respect of interest on the
Group 2 Certificates pursuant to Section 4.02(a)(i) priority first sub-clause
(B).
Amount Available for Group 3 Principal: As to any Distribution Date,
Group 3 Available Funds for such Distribution Date reduced by the aggregate
amount distributable on such Distribution Date in respect of interest on the
Group 3 Certificates pursuant to Section 4.02(a)(i) priority first sub-clause
(C).
Amount Held for Future Distribution: As to any Distribution Date and
any Mortgage Loan or Loan Group, the aggregate amount held in the Collection
Account at the close of business on the related Servicer Remittance Date with
respect to such Mortgage Loan or Loan Group at the close of business on the
related Servicer Remittance Date on account of (i) Principal Prepayments
received after the related Prepayment Period, and Liquidation Proceeds and
Insurance Proceeds received in the month of such Distribution Date and (ii) all
Scheduled Payments due after the related Due Date.
Apportioned Subordinate Principal Distribution Amount: With respect
to a Class of Subordinate Certificates and any Distribution Date, the product of
(i) the Subordinate Principal Distribution Amount and (ii) the applicable
Apportionment Fraction.
Apportionment Fraction: With respect to each Class of Subordinate
Certificates and for any Distribution Date, in the event that the Class
Principal Balances of the Senior Certificates of any Certificate Group have been
reduced to zero, a fraction the numerator of which is equal to the sum of the
Subordinate Optimal Principal Amount of the Loan Group (or Groups) related to
such Certificate Group (or Groups), and the denominator of which is equal to the
Aggregate Subordinate Optimal Principal Amount.
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the
time of the origination of such Mortgage Loan; and (ii) with respect to a
Refinancing Mortgage Loan, the value of the Mortgaged Property based upon the
appraisal made at the time of the origination of such Refinancing Mortgage Loan
as modified by an updated appraisal.
Assignment: An individual assignment of a Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
of record the sale or transfer of the Mortgage Loan.
Assignment Agreements: The following Assignment, Assumption and
Recognition Agreements, each dated as of September 29, 2004, whereby certain
Servicing Agreements solely with respect to the related Mortgage Loans were
assigned to the Depositor for the benefit of the Certificateholders:
(a) The Assignment, Assumption and Recognition Agreement, among Bank
of America, the Transferor and Mortgage Asset Securitization Transactions, Inc.;
(b) The Assignment, Assumption and Recognition Agreement, among
Cendant, the Transferor and Mortgage Asset Securitization Transactions, Inc.;
(c) The Assignment, Assumption and Recognition Agreement, among
Xxxxxx, the Transferor and Mortgage Asset Securitization Transactions, Inc.;
(d) The Assignment, Assumption and Recognition Agreement, among
GMAC, the Transferor and Mortgage Asset Securitization Transactions, Inc.;
(e) The Assignment, Assumption and Recognition Agreement, among
GreenPoint, the Transferor and Mortgage Asset Securitization Transactions, Inc.;
(f) The Assignment, Assumption and Recognition Agreement, among
National City, the Transferor and Mortgage Asset Securitization Transactions,
Inc.; and
(g) The Assignment, Assumption and Recognition Agreement, among
Xxxxx Fargo, the Transferor and Mortgage Asset Securitization Transactions, Inc.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
the assignment or mortgage of the related Proprietary Lease from the Mortgagor
to the originator of the Cooperative Loan.
Available Funds: With respect to any Certificate Group, the Group 1
Available Funds, the Group 2 Available Funds or the Group 3 Available Funds, as
the case may be.
Bank of America: Bank of America, N.A. and its successors and
assigns, in its capacity as Servicer of the Bank of America Mortgage Loans.
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 Servicing Agreement: Solely with respect to the Bank
of America Mortgage Loans, the Amended and Restated Flow Mortgage Loan Sale and
Servicing Agreement, dated as of February 1, 2003, between the Transferor, as
purchaser, and Bank of America, as seller and as servicer, as the same may be
amended from time to time, and any assignments and conveyances related to the
Bank of America Mortgage Loans.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: With respect to any Loan
Group, the point in time at which the Bankruptcy Loss Coverage Amount is reduced
to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction as reported by the applicable Servicer to
the Master Servicer; provided, however, that a Bankruptcy Loss shall not be
deemed a Bankruptcy Loss hereunder so long as the Master Servicer has notified
the Trustee in writing that either the Master Servicer or the applicable
Servicer is diligently pursuing any remedies that may exist in connection with
the related Mortgage Loan and either (A) the related Mortgage Loan is not in
default with regard to payments due thereunder or (B) delinquent payments of
principal and interest under the related Mortgage Loan and any related escrow
payments in respect of such Mortgage Loan are being advanced on a current basis
by either the Master Servicer or the applicable Servicer, in either case without
giving effect to any Debt Service Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Distribution Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses relating to
the Mortgage Loans since September 1, 2004 and (ii) any permissible reductions
in such Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trust Administrator and the Trustee to the effect that any such
reduction or modification will not adversely affect the then current ratings
assigned to the Senior Certificates rated by it.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York,
Minnesota, Maryland, or any city in which the Corporate Trust Office of the
Trustee or Trust Administrator is located are authorized or obligated by law or
executive order to be closed.
Cendant: Cendant Mortgage Corporation and its successors and
assigns, in its capacity as Servicer of the Cendant Mortgage Loans.
Cendant Mortgage Loans: The Mortgage Loans for which Cendant is
listed as "Servicer" on the Mortgage Loan Schedule.
Cendant Servicing Agreement: Solely with respect to the Cendant
Mortgage Loans, the Mortgage Loan Flow Purchase, Sale and Servicing Agreement,
dated as of August 1, 2001, between the Transferor, as purchaser, and Cendant,
as seller and as servicer, as amended by Amendment No. 1, dated as of November
28, 2001, Amendment No. 2, dated as of November 15, 2002, and as the same may be
further amended from time to time, and any term sheets related to the Cendant
Mortgage Loans.
Certificate: Any one of the Certificates executed by the Trust
Administrator on behalf of the Trust and authenticated by the Trust
Administrator in substantially the forms attached hereto as Exhibits A through
E.
Certificate Group: The Group 1 Certificates, Group 2 Certificates
and Group 3 Certificates, as applicable.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: With respect to any Certificate
(other than the Class P 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 the sum of (i) all distributions
of principal previously made with respect thereto and (ii) all Realized Losses
allocated thereto and, in the case of any Subordinate Certificates, all other
reductions in Certificate Principal Balance previously allocated thereto
pursuant to Section 4.03; provided, however, that pursuant to Section 4.03(d),
the Class Principal Balance of a Class of Certificates may be increased up to
the amount of Realized Losses previously allocated to such Class, in the event
that there is a Recovery on a related Mortgage Loan, and the Certificate
Principal Balance of any individual Certificate of such Class will be increased
by its pro rata share of the increase to such Class. The Class P Certificates
have no Certificate Principal Balance.
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 Trust Administrator is
entitled to rely conclusively on a certification of the Master Servicer or the
Depositor or any affiliate of the Master Servicer or the Depositor, as
applicable, in determining which Certificates are registered in the name of an
affiliate of the Master Servicer or the Depositor.
Certification: As specified in Section 8.12(d).
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A-LR Interest: The sole class of "residual interest" in the
Lower-Tier REMIC.
Class A-UR Interest: The sole class of "residual interest" in the
Upper-Tier REMIC.
Class Interest Shortfall: As to any Distribution Date and any
interest-bearing Class, the amount by which the amount described in clause (i)
of the definition of Accrued Certificate Interest for such Class exceeds the
amount of interest actually distributed on such Class on such Distribution Date
pursuant to such clause (i).
Class P Certificates: All Certificates bearing the class designation
of "Class P".
Class P Prepayment Charges: Any prepayment premium, penalty or
charge to which the Trust is entitled with respect to Mortgage Loans identified
on Schedule III hereto serviced by GMAC, GreenPoint and Xxxxx.
Class Prepayment Distribution Trigger: With respect to any Class of
Subordinate Certificates and any Distribution Date, if either (i) the Fractional
Interest for such Class with respect to such Distribution Date, equals or
exceeds the Fractional Interest for such Class calculated as of the Closing Date
or (ii) such Class of Subordinate Certificates is the most senior Class of
Subordinate Certificates then outstanding.
Class Principal Balance: With respect to any Class (other than the
Class P Certificates) and as to any date of determination, the aggregate of the
Certificate Principal Balances of all Certificates of such Class as of such
date.
Class Unpaid Interest Amounts: As to any Distribution Date and any
interest bearing Class, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii) of
the definition of Accrued Certificate Interest for such Class.
Clean-up Call Mortgage Loan Price: With respect to each Mortgage
Loan (not including REO Properties) to be purchased pursuant to Section
10.01(a), the greater of (x) the Par Call Price for such Mortgage Loan and (y)
the Fair Market Value Call Price for such Mortgage Loan.
Clean-up Call REO Property Price: With respect to each REO Property
to be purchased pursuant to Section 10.01(a), the lesser of (x) the appraised
value of such 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 such REO Property plus accrued and unpaid interest
thereon at the applicable Net Mortgage Rate.
Closing Date: September 29, 2004.
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 "Xxxxx Fargo Bank,
National Association, in trust for registered holders of MASTR Adjustable Rate
Mortgages Trust 2004-10 Mortgage Pass-Through Certificates, Series 2004-10." The
Collection Account may be deemed to be a sub-account of the Distribution
Account.
Compensating Interest: With respect to any Distribution Date and any
Servicer, the amount required to be paid by such Servicer under the related
Servicing Agreement in connection with Prepayment Interest Shortfalls that occur
on Mortgage Loans serviced by such Servicer for the related Distribution Date.
If any Servicer fails to make its required Compensating Interest payment on any
Distribution Date, the Master Servicer will be required to make such
Compensating Interest payment to the same extent that such Servicer is required
to make such Compensating Interest payment.
Control Person: As defined in Section 8.05.
Cooperative Corporation: With respect to any Cooperative Loan, the
cooperative apartment corporation that holds legal title to the related
Cooperative Property and grants occupancy rights to units therein to
stockholders through Proprietary Leases or similar arrangements.
Cooperative Lien Search: A search for (a) federal tax liens,
mechanics' liens, lis pendens, judgments of record or otherwise against (i) the
Cooperative Corporation and (ii) the seller of the Cooperative Unit, (b) filings
of Financing Statements and (c) the deed of the Cooperative Property into the
Cooperative Corporation.
Cooperative Loan: A Mortgage Loan that is secured by a first lien on
and a perfected security interest in Cooperative Shares and the related
Proprietary Lease granting exclusive rights to occupy the related Cooperative
Unit in the building owned by the related Cooperative Corporation.
Cooperative Property: With respect to any Cooperative Loan, all real
property and improvements thereto and rights therein and thereto owned by a
Cooperative Corporation including without limitation the land, separate dwelling
units and all common elements.
Cooperative Shares: With respect to any Cooperative Loan, the shares
of stock issued by a Cooperative Corporation and allocated to a Cooperative Unit
and represented by stock certificates.
Cooperative Unit: With respect to any Cooperative Loan, a specific
unit in a Cooperative Property.
Corporate Trust Office: With respect to the Trustee, the designated
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 0 Xxx Xxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Institutional Trust
Services/Global Debt - MASTR Adjustable Rate Mortgages Trust 2004-10, telephone
no. (000) 000-0000, facsimile no. (000) 000-0000, which is the address to which
appropriate notices to and correspondence with the Trustee should be directed.
With respect to the Trust Administrator, the designated office of the Trust
Administrator at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
execution of this Agreement is located for certificate transfer purposes at
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust Services - MARM 2004-10, and for all other purposes at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services -
MARM 2004-10.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Cross-Over Date: The Distribution Date on which the Class Principal
Balances of the Subordinate Certificates have been reduced to zero.
Custodian: Xxxxx Fargo.
Cut-off Date: With respect to the Mortgage Loans other than the
Alternate Cut-Off Date Mortgage Loans, September 1, 2004. With respect to the
Alternate Cut-Off Date Mortgage Loans, October 1, 2004.
Cut-off Date Pool Balance: $237,162,222.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Scheduled Principal Balance thereof as of the close of business on the Cut-off
Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any Scheduled Payment
that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: As defined in Section 2.03 hereof.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Principal Balance of this
Certificate" or 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(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: The date on which a Servicer is required to
determine the amount it is required to advance pursuant to the applicable
Servicing Agreement.
Distribution Account: The separate Eligible Account created and
maintained by the Trust Administrator pursuant to Section 3.07 in the name of
the Trustee for the benefit of the Certificateholders and designated "JPMorgan
Chase Bank, in trust for registered holders of MASTR Adjustable Rate Mortgages
Trust 2004-10 Mortgage Pass-Through Certificates, Series 2004-10." Funds in the
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, one
Business Day prior to such Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business Day,
the next succeeding Business Day, commencing in October 2004.
Distribution Date Statement: The statement delivered to the
Certificateholders pursuant to Section 4.04.
Xxxxxx: Xxxxxx Savings and Loan Association, F.A. and its successors
and assigns, in its capacity as Servicer of the Xxxxxx Mortgage Loans.
Xxxxxx Mortgage Loans: The Mortgage Loans for which Xxxxxx is listed
as "Servicer" on the Mortgage Loan Schedule.
Xxxxxx Servicing Agreement: Solely with respect to the Xxxxxx
Mortgage Loans, the Master Loan Purchase and Servicing Agreement, dated as of
August 1, 2002, between the Transferor, as purchaser, and Xxxxxx, as seller and
as servicer, as amended by Amendment Number One, dated as of November 15, 2002,
as further amended by Amendment Number Two, dated as of May 28, 2003, and as
further amended by Amendment Number Three, dated as of September 1, 2003, and as
the same may be further amended from time to time, and any assignments and
conveyances related to the Xxxxxx Mortgage Loans.
Due Date: With respect to any Distribution Date, the first day of
the month in which the related Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trust Administrator and 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 segregated trust
account or accounts maintained with the corporate trust department of a federal
depository institution or state-chartered depository institution subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the U.S.
Code of Federal Regulation Section 9.10(b), which, in either case, has corporate
trust powers and is 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 Trust Administrator.
Eligible Substitute Mortgage Loan: With respect to a Mortgage Loan
substituted by the Transferor for a Deleted Mortgage Loan, a Mortgage Loan which
must, on the date of such substitution, (i) have a Scheduled Principal Balance,
after deduction of the principal portion of the Scheduled Payment due in the
month of substitution (or, in the case of a substitution of more than one
mortgage loan for a Deleted Mortgage Loan, an aggregate principal balance), not
in excess of, and not more than 10% less than the Scheduled Principal Balance of
the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower than,
and not more than 1% per annum higher than, that of the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (iv) have the same index and Periodic Rate Cap as that of the Deleted
Mortgage Loan and a gross margin not more than 1% per annum higher or lower than
that of the Deleted Mortgage Loan; (v) does not permit conversion of the related
interest rate to a fixed interest rate; (vi) have a remaining term to maturity
no greater than (and not more than one year less than that of) the Deleted
Mortgage Loan; (vii) comply with each representation and warranty set forth in
Section 2.03 hereof; (viii) be the same credit grade category as the Deleted
Mortgage Loan; (ix) have the same prepayment penalty term; and (x) not be a
Cooperative Loan unless the Deleted Mortgage Loan was a Cooperative Loan.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.08 hereof.
Excess Loss: The amount of any (i) Fraud Loss realized after the
Fraud Loss Coverage Termination Date, (ii) Special Hazard Loss realized after
the Special Hazard Coverage Termination Date or (iii) Deficient Valuation
realized after the Bankruptcy Coverage Termination Date.
Excess Proceeds: With respect to any Liquidated Loan, the amount, if
any, by which the sum of any Liquidation Proceeds of such Mortgage Loan received
in the calendar month in which such Mortgage Loan became a Liquidated Loan,
exceeds (i) the Scheduled Principal Balance of such Liquidated Loan as of the
Due Date in the month in which such Mortgage Loan became a Liquidated Loan plus
(ii) accrued interest at the Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date applicable to the Distribution Date immediately following the
calendar month during which such liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
Fair Market Value Call Price: With respect to each Mortgage Loan
(not including REO Properties) to be purchased pursuant to Section 10.01(a)
hereof, the fair market value of such Mortgage Loan (to be determined pursuant
to a bid procedure set forth in Section 10.01(b)) hereof plus accrued and unpaid
interest thereon at the applicable Net Mortgage Rate.
Fair Market Value Excess: With respect to each Mortgage Loan to be
purchased pursuant to Section 10.01(a) hereof, the excess, if any, of the Fair
Market Value Call Price for such Mortgage Loan, over the Par Call Price for such
Mortgage Loan. Any Fair Market Value Excess will not become part of the related
Group Available Funds, but shall instead be distributed directly to the Holders
of the Class A-LR Certificates pursuant to Section 4.02(g) hereof.
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.
Final Certification: The certification required to be delivered by
the Custodian not more than 90 days after the Closing Date to the Depositor, the
Trustee and the Transferor in the form annexed hereto as Exhibit G pursuant to
Section 2.02 of this Agreement.
Financing Statement: A financing statement in the form of a UCC-1 or
UCC-3, as applicable, filed pursuant to the Uniform Commercial Code to perfect a
security interest in the Cooperative Shares and Pledge Instruments.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
11.05(b), the address for notices to Fitch shall be Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, XX 00000, Attention: MBS Monitoring MASTR Adjustable Rate Mortgages Trust
2004-10, or such other address as Fitch may hereafter furnish to each party to
this Agreement.
Fractional Interest: As to any Distribution Date and each Class of
Subordinate Certificates, the fraction (expressed as a percentage), the
numerator of which is the aggregate Certificate Principal Balance of such Class
and each Class subordinate to such Class, if any, and the denominator of which
is the aggregate Scheduled Principal Balance for all Loan Groups.
Fraud Loan: A Liquidated Loan as to which a Fraud Loss has occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $4,743,244,
subject to reduction from time to time by the aggregate amount of Fraud Losses
that would have been previously allocated to the Subordinate Certificates in the
absence of the Loss Allocation Limitation since the Cut-off Date. In addition,
the Fraud Loss Coverage Amount will be reduced as follows: (a) on the first
anniversary of September 1, 2004, to an amount equal to $2,371,622 less the
amount of Fraud Losses that would have been previously allocated to the
Subordinate Certificates in the absence of the Loss Allocation Limitation and
(b) on the earlier to occur of the Cross-Over Date and the fifth anniversary of
September 1, 2004, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss
is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation as reported by the
applicable Servicer to the Master Servicer.
Xxxxxxx Mac: Xxxxxxx Mac, a corporate instrumentality of the United
States created and existing under Title III of the Emergency Home Finance Act of
1970, as amended, or any successor thereto.
GMAC: GMAC Mortgage Corporation and its successors and assigns, in
its capacity as Servicer of the GMAC Mortgage Loans.
GMAC Mortgage Loans: The Mortgage Loans for which GMAC is listed as
"Servicer" in the Mortgage Loan Schedule.
GMAC Servicing Agreement: Solely with respect to the GMAC Mortgage
Loans, the Servicing Agreement, dated as of November 1, 2001, between the
Transferor and GMAC, as amended by Amendment Number One, dated as of January 1,
2003, as the same may be further amended from time to time, and any assignment
and conveyance related to the GMAC Mortgage Loans.
Grantor Trust: That portion of the Trust, exclusive of the Trust
REMICs, that holds the rights of the Class P Certificateholders to Class P
Prepayment Charges.
GreenPoint: GreenPoint Mortgage Funding, Inc. and its successors and
assigns, in its capacity as Servicer of the GreenPoint Mortgage Loans.
GreenPoint Mortgage Loans: The Mortgage Loans for which GreenPoint
is listed as "Servicer" on the Mortgage Loan Schedule.
GreenPoint Servicing Agreement: Solely with respect to the
GreenPoint Mortgage Loans, the Master Loan Purchase and Servicing Agreement,
dated as of March 1, 2003, between the Transferor, as purchaser, and GreenPoint,
as seller and servicer, as amended by Amendment Number One, dated May 30, 2003,
as further amended by Amendment Number Two, dated January 8, 2004, and as the
same may be further amended from time to time.
Group 1 Available Funds: As to any Distribution Date, the sum of (a)
the aggregate amount held in the Collection Account at the close of business on
the related Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business on the related Distribution
Account Deposit Date, attributable to the Group 1 Mortgage Loans net of the
Amount Held for Future Distribution related to the Group 1 Mortgage Loans and
net of amounts (i) permitted to be withdrawn from the Collection Account
pursuant to clauses (i)-(viii) inclusive and clauses (ix)(A)(ii), (ix)(B), (x)
and (xi) of Section 3.10(a), (ii) after giving effect to all amounts deposited
to the Distribution Account from the Collection Account, amounts permitted to be
withdrawn from the Distribution Account pursuant to clauses (i) through (iv)
inclusive of Section 3.10(b) each as it relates to the Group 1 Mortgage Loans
and (iii) any amounts representing Fair Market Value Excess with respect to a
Group 1 Mortgage Loan received in connection with the termination of the Trust
Fund pursuant to Section 10.01 hereof, (b) the amount of the Advances related to
the Group 1 Mortgage Loans, and (c) in connection with Deleted Mortgage Loans in
Loan Group 1, as applicable, the aggregate of the Purchase Prices and
Substitution Adjustment Amounts deposited on the related Distribution Account
Deposit Date.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Mortgage Loans: Those Mortgage Loans identified on the
Mortgage Loan Schedule as Group 1 Mortgage Loans.
Group 1 Pool Principal Balance: As to any Distribution Date, the
aggregate of the Scheduled Principal Balances of the Group 1 Mortgage Loans that
were Outstanding Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date.
Group 1 Subordinate Amount: As to any Distribution Date, the excess
of (i) the aggregate Scheduled Principal Balance of the Group 1 Mortgage Loans
over (ii) the sum of the Class Principal Balances of the Group 1 Certificates.
Group 2 Available Funds: As to any Distribution Date, the sum of (a)
the aggregate amount held in the Collection Account at the close of business on
the related Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business on the related Distribution
Account Deposit Date, attributable to the Group 2 Mortgage Loans net of the
Amount Held for Future Distribution related to the Group 2 Mortgage Loans and
net of amounts (i) permitted to be withdrawn from the Collection Account
pursuant to clauses (i)-(viii) inclusive and clauses (ix)(A)(ii), (ix)(B), (x)
and (xi) of Section 3.10(a), (ii) after giving effect to all amounts deposited
to the Distribution Account from the Collection Account, amounts permitted to be
withdrawn from the Distribution Account pursuant to clauses (i)-(iv) inclusive
of Section 3.10(b) each as it relates to the Group 2 Mortgage Loans and (iii)
any amounts representing Fair Market Value Excess with respect to a Group 2
Mortgage Loan received in connection with the termination of the Trust Fund
pursuant to Section 10.01 hereof, (b) the amount of the Advances related to the
Group 2 Mortgage Loans, and (c) in connection with Deleted Mortgage Loans in
Loan Group 2, as applicable, the aggregate of the Purchase Prices and
Substitution Adjustment Amounts deposited on the related Distribution Account
Deposit Date.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Mortgage Loans: Those Mortgage Loans identified on the
Mortgage Loan Schedule as Group 2 Mortgage Loans.
Group 2 Pool Principal Balance: As to any Distribution Date, the
aggregate of the Scheduled Principal Balances of the Group 2 Mortgage Loans that
were Outstanding Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date.
Group 2 Subordinate Amount: As to any Distribution Date, the excess
of (i) the aggregate Scheduled Principal Balance of the Group 2 Mortgage Loans
over (ii) the sum of the Class Principal Balances of the Group 2 Certificates.
Group 3 Available Funds: As to any Distribution Date, the sum of (a)
the aggregate amount held in the Collection Account at the close of business on
the related Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business on the related Distribution
Account Deposit Date, attributable to the Group 3 Mortgage Loans net of the
Amount Held for Future Distribution related to the Group 3 Mortgage Loans and
net of amounts (i) permitted to be withdrawn from the Collection Account
pursuant to clauses (i)-(viii) inclusive and clauses (ix)(A)(ii), (ix)(B), (x)
and (xi) of Section 3.10(a), (ii) after giving effect to all amounts deposited
to the Distribution Account from the Collection Account, amounts permitted to be
withdrawn from the Distribution Account pursuant to clauses (i)-(iv) inclusive
of Section 3.10(b) each as it relates to the Group 3 Mortgage Loans and (iii)
any amounts representing Fair Market Value Excess with respect to a Group 3
Mortgage Loan received in connection with the termination of the Trust Fund
pursuant to Section 10.01 hereof, (b) the amount of the Advances related to the
Group 3 Mortgage Loans, and (c) in connection with Deleted Mortgage Loans in
Loan Group 3, as applicable, the aggregate of the Purchase Prices and
Substitution Adjustment Amounts deposited on the related Distribution Account
Deposit Date.
Group 3 Certificates: As specified in the Preliminary Statement.
Group 3 Mortgage Loans: Those Mortgage Loans identified on the
Mortgage Loan Schedule as Group 3 Mortgage Loans.
Group 3 Pool Principal Balance: As to any Distribution Date, the
aggregate of the Scheduled Principal Balances of the Group 3 Mortgage Loans that
were Outstanding Mortgage Loans on the Due Date in the month preceding the month
of such Distribution Date.
Group 3 Subordinate Amount: As to any Distribution Date, the excess
of (i) the aggregate Scheduled Principal Balance of the Group 3 Mortgage Loans
over (ii) the sum of the Class Principal Balances of the Group 3 Certificates.
Group Available Funds: Any of the Group 1 Available Funds, Group 2
Available Funds and Group 3 Available Funds, as applicable.
Group Pool Principal Balance: Any of the Group 1 Pool Principal
Balance, Group 2 Pool Principal Balance and Group 3 Pool Principal Balance, as
applicable.
Group Subordinate Amount: Each of the Group 1 Subordinate Amount,
Group 2 Subordinate Amount and Group 3 Subordinate Amount, as applicable.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost
home," "threshold," "covered," (excluding New Jersey "Covered Home Loans" as
that term is defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002), "high risk home," "predatory" or
similar loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees) or (c) a Mortgage
Loan categorized as High Cost pursuant to Appendix E of Standard and Poor's
Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Coverage Amount: $102,687.
Initial Certification: The certification required to be executed by
the Custodian and delivered on the Closing Date to the Depositor and the Trustee
in the form annexed hereto as Exhibit F pursuant to Section 2.02 of this
Agreement.
Initial Depositor Required Deposit: The amount required to be paid
by the Depositor pursuant to Section 2.01(d), equal to one month of interest
that would have accrued at the applicable Net Mortgage Rate on the Scheduled
Principal Balance of each Alternate Cut-off Date Mortgage Loan for the Interest
Accrual Period related to the Distribution Date in October 2004 had the Cut-off
Date for such Mortgage Loans been September 1, 2004 (instead of October 1,
2004).
Insolvency Proceeding: With respect to any Person: (i) any case,
action, or proceeding with respect to such Person before any court or other
governmental authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up, or relief of debtors; or
(ii) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in respect of
the creditors generally of such Person or any substantial portion of such
Person's creditors, in any case undertaken under federal, state or foreign law,
including the Bankruptcy Code.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses, to the extent such proceeds are not
applied to the restoration of the related Mortgaged Property or released to the
borrower in accordance with the applicable Servicer's normal servicing
procedures.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Certificates,
each Lower-Tier REMIC Regular Interest and any Distribution Date, the period
from and including the first day of the month immediately preceding the month in
which such Distribution Date occurs, commencing September 1, 2004, to and
including the last day of such immediately preceding month.
Latest Possible Maturity Date: The Distribution Date following the
first anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender-Paid Mortgage Insurance Amount: With respect to any
Lender-Paid Mortgage Insurance Loan, the interest portion of each Scheduled
Payment that is paid by the related Mortgagor that will be used to pay the
monthly premium of the "lender-paid" Primary Insurance Policy on such
Lender-Paid Mortgage Insurance Loan, which is calculated by multiplying the
Scheduled Principal Balance as of the related date of determination on such
Lender-Paid Mortgage Insurance Loan by the applicable Lender-Paid Mortgage
Insurance Rate.
Lender-Paid Mortgage Insurance Loan: Each of the Mortgage Loans
identified on the Mortgage Loan Schedule as having a Lender-Paid Mortgage
Insurance Rate.
Lender-Paid Mortgage Insurance Rate: With respect to any Lender-Paid
Mortgage Insurance Loan, a per annum rate equal to the percentage indicated on
the Mortgage Loan Schedule under the heading "Lender-Paid Mortgage Insurance
Rate."
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the
applicable Servicer or the Master Servicer, as the case may be, has determined
(in accordance with the applicable Servicing Agreement and this Agreement) that
it has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan, including the final disposition of an REO
Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees, Servicing
Advances and Advances.
Loan Group: Each of Loan Group 1, Loan Group 2 and Loan Group 3, as
applicable.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Seller: With respect to any Mortgage Loan, the entity that sold
such Mortgage Loan to the Transferor.
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.
Loss Allocation Limitation: As defined in Section 4.03(c) hereof.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Lower-Tier REMIC: As described in the Preliminary Statement.
Lower-Tier REMIC Interest: Any one of the Lower-Tier REMIC Regular
Interests or the Class A-LR Certificates.
Lower-Tier REMIC Regular Interest: Any of the Class L-1B Interest,
Class L-1Q Interest, Class L-2B Interest, Class L-2Q Interest, Class L-3B
Interest and Class L-3Q Interest.
Lower-Tier Subordinated Balance Ratio: The ratio among the principal
balances of the Class L-1B Interest, Class L-2B Interest and Class L-3B Interest
equal to the ratio among the Group 1 Subordinate Amount, the Group 2 Subordinate
Amount and the Group 3 Subordinate Amount.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least 51%
of the Percentage Interests evidenced by all Certificates of such Class.
Master Servicer: Xxxxx Fargo, in its capacity as Master Servicer
hereunder.
Master Servicer Event of Termination: As defined in Section 7.01
hereof.
Master Servicing Compensation: All investment earnings on amounts on
deposit in the Collection Account and the Distribution Account (other than the
WMMSC Investment Earnings Amount).
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: As defined in Section 2.01.
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 Custodian to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of September 1, 2004, between the Transferor and the
Depositor.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Custodian to reflect the addition of Eligible Substitute
Mortgage Loans and the deletion of Deleted Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Fund and from time to time subject to this Agreement, attached hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan: (1) the Mortgage Loan identifying number; (2) the Mortgagor's
first and last name; (3) the street address of the Mortgaged Property including
the city, state and zip code; (4) the original principal balance of the Mortgage
Loan; (5) the Scheduled Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date; (6) the unpaid principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date; (7) the last
scheduled Due Date on which a Scheduled Payment was applied to the Scheduled
Principal Balance; (8) the last Due Date on which a Scheduled Payment was
actually applied to the unpaid principal balance; (9) the Mortgage Rate in
effect immediately following origination; (10) the Mortgage Rate in effect
immediately following the Cut-off Date (if different from (9)); (11) the amount
of the Scheduled Payment at origination; (12) the amount of the Scheduled
Payment as of the Cut-off Date (if different from (11)); (13) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or an investor
property; (14) a code indicating whether the Mortgaged Property is a single
family residence, a two-family residence, a three-family residence, a
four-family residence, a planned-unit development, a condominium or a
Cooperative Unit; (15) a code indicating the loan purpose (i.e., purchase,
rate/term refinance, cash-out refinance); (16) the stated maturity date; (17)
the original months to maturity; (18) the remaining months to maturity from the
Cut-off Date based on the original amortization schedule and, if different, the
remaining months to maturity expressed in the same manner but based on the
actual amortization schedule; (19) the origination date of the Mortgage Loan;
(20) the Loan-to-Value Ratio at origination; (21) the date on which the first
Scheduled Payment was due on the Mortgage Loan after the origination date; (22)
a code indicating the documentation style of the Mortgage Loan; (23) a code
indicating if the Mortgage Loan is subject to a Primary Insurance Policy and, if
so, the name of the Qualified Mortgage Insurer, the certificate number and the
coverage amount of the Primary Insurance Policy; (24) the Servicing Fee Rate,
and if such rate is subject to change, the date such rate will change and the
Servicing Fee Rate applicable thereafter; (25) a code indicating whether the
Mortgage Loan is subject to a prepayment penalty and, if so, the term of such
prepayment penalty and whether the same shall be a Class P Prepayment Charge;
(26) the credit score (or mortgage score) of the Mortgagor; (27) the
debt-to-income ratio of the Mortgage Loan; (28) the next Adjustment Date; (29)
the lifetime Mortgage Rate Cap; (30) the Periodic Rate Cap; (31) the maximum
interest rate; (32) the minimum interest rate; (33) a code indicating if the
Mortgage Loan is subject to a "lender-paid" Primary Insurance Policy and, if so,
the name of the Qualified Mortgage Insurer, the certificate number and the
coverage amount of the Primary Insurance Policy, and the Lender-Paid Mortgage
Insurance Rate; (34) the date on which the Mortgage Loan was transferred to the
Transferor; (35) a code indicating the Loan Group such Mortgage Loan is included
in; (36) the initial Servicer; (37) a code indicating the originator of the
Mortgage Loan; (38) a code indicating whether the Mortgage Loan is a Cooperative
Loan; (39) a code indicating whether such Mortgage Loan is an Alternate Cut-Off
Date Mortgage Loan; and (40) a code indicating whether such Mortgage Loan is a
Home Loan.
Mortgage Loans: Such of the mortgage loans and cooperative loans
transferred and assigned to the Trustee pursuant to the provisions hereof as
from time to time are held as a part of the Trust Fund (including any REO
Property), the mortgage loans so held being identified on the Mortgage Loan
Schedule, notwithstanding foreclosure or other acquisition of title of the
related Mortgaged Property. With respect to each Mortgage Loan that is a
Cooperative Loan, if any, "Mortgage Loan" shall include, but not be limited to,
the related Mortgage Note, Security Agreement, Assignment of Proprietary Lease,
Recognition Agreement, Cooperative Shares and Proprietary Lease and, with
respect to each Mortgage Loan other than a Cooperative Loan, "Mortgage Loan"
shall include, but not be limited to the related Mortgage and the related
Mortgage Note.
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
or, with respect to a Cooperative Loan, the related Cooperative Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National City: National City Mortgage Co. and its successors and
assigns, in its capacity as servicer of the National City Mortgage Loans.
National City Mortgage Loans: The Mortgage Loans for which National
City is listed as "Servicer" on the Mortgage Loan Schedule.
National City 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 amended by Amendment Number One, dated as of March 25, 2002, as further
amended by Amendment Number Two, dated as of November 15, 2002, and as the same
may be further amended from time to time, and any assignments and conveyances
related to the National City Mortgage Loans.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less (i) the related Servicing Fee
Rate and (ii) if applicable, the Lender-Paid Mortgage Insurance Rate.
Net Prepayment Interest Shortfalls: As to any Distribution Date and
Loan Group, the amount by which the aggregate of Prepayment Interest Shortfalls
for that Loan Group during the related Prepayment Period exceeds the amount of
Compensating Interest available to such Loan Group for such Distribution Date.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the applicable Servicer or the Master Servicer, as the
case may be, that, in the good faith judgment of the applicable Servicer or the
Master Servicer, will not be ultimately recoverable by the applicable Servicer
or the Master Servicer from the related Mortgagor, related Liquidation Proceeds
or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 10.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of
the Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii) if provided for in
this Agreement, signed by a Master Servicing Officer, as the case may be, and
delivered to the Depositor, the Trustee and the Trust Administrator, as the case
may be, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, including in-house counsel, reasonably
acceptable to the Trustee or the Trust Administrator, as applicable; 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
10.01(a) hereof.
Original Subordinate Principal Balance: The aggregate of the Class
Principal Balances of the Subordinate Certificates as of the Closing Date.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(a) Certificates theretofore canceled by the Trust Administrator or
delivered to the Trust Administrator for cancellation; and
(b) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trust Administrator
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Scheduled Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full prior to such Due Date and that did not become a
Liquidated Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Par Call Price: With respect to each Mortgage Loan (not including
REO Properties) to be purchased pursuant to Section 10.01(a) hereof, 100% of the
unpaid principal balance of such Mortgage Loan, plus accrued and unpaid interest
thereon at the applicable Net Mortgage Rate.
Pass-Through Rate: For any interest bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Rate Cap: As to each Mortgage Loan and the related Mortgage
Note, the provisions therein that limit permissible increases and decreases in
the interest rate of any Mortgage Loan on any Adjustment Date.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(a) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the United States;
(b) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or such lower rating as will not result in
the downgrading or withdrawal of the ratings then assigned to the Certificates
by either Rating Agency (as confirmed in writing by the applicable Rating
Agency);
(c) commercial or finance company paper which is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
such lower rating as will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by either Rating Agency (as confirmed
in writing by the applicable Rating Agency);
(d) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal and/or state banking authorities,
provided that the commercial paper and/or long term unsecured debt obligations
of such depository institution or trust company are then rated in one of the two
highest long-term and the highest short-term ratings of each Rating Agency for
such securities, or such lower ratings as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either Rating
Agency (as confirmed in writing by the applicable Rating Agency);
(e) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that such deposits
are fully insured by the FDIC and are then rated in the highest long-term and
the highest short-term ratings of each Rating Agency for such securities, or
such lower ratings as will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by either Rating Agency (as confirmed
in writing by the applicable Rating Agency);
(f) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation containing, at the time of the issuance of such
agreements, such terms and conditions as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either Rating
Agency (as confirmed in writing by the applicable Rating Agency);
(g) repurchase obligations with respect to any security described in
clauses (a) and (b) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (d)
above;
(h) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face amount
thereof) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state thereof which, at
the time of such investment, have the highest rating of each Rating Agency, or
such lower rating as will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by either Rating Agency (as confirmed
in writing by the applicable Rating Agency);
(i) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency and restricted to obligations issued or
guaranteed by the United States of America or entities whose obligations are
backed by the full faith and credit of the United States of America and
repurchase agreements collateralized by such obligations;
(j) any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to instruments that
otherwise would constitute Permitted Investments hereunder, including any such
fund that is managed by the Trust Administrator or Master Servicer or any
affiliate of the Trust Administrator or Master Servicer or for which the Trust
Administrator or Master Servicer or any affiliate of the Trust Administrator or
Master Servicer acts as an adviser as long as such fund is rated in at least the
highest rating category by each Rating Agency (if so rated by such Rating
Agency; provided, however, if S&P is a Rating Agency, then such mutual fund,
money market fund, common trust fund or other pooled investment vehicle shall
have been rated by S&P); and
(k) such other investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either Rating
Agency, as evidenced by a signed writing delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any State thereof or the
District of Columbia, an estate whose income is subject to United States federal
income tax 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 Trust Administrator 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 any 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.
Pledge Instruments: With respect to each Cooperative Loan, the Stock
Power, the Assignment of Proprietary Lease and the Security Agreement.
Pool Principal Balance: As to any Distribution Date, the aggregate
of the Scheduled Principal Balances of the Mortgage Loans that were Outstanding
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date.
Prepayment Interest Excess: As to any Principal Prepayment received
or, in the case of partial Principal Prepayments, applied by the applicable
Servicer or the Master Servicer from the first day through the fifteenth day of
any calendar month (other than the calendar month in which the Cut-off Date
occurs), all amounts paid by the related Mortgagor in respect of interest on
such Principal Prepayment.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received or, in the case of partial Principal
Prepayments, applied, during the applicable Prepayment Period (except with
respect to any WMMSC Mortgage Loan for which a Principal Prepayment in Full is
received by WMMSC on or after the 1st day and prior to the 15th day of the month
preceding the month in which such Distribution Date occurs), the amount, if any,
by which one month's interest at the related Net Mortgage Rate on such Principal
Prepayment exceeds the amount of interest at the Net Mortgage Rate paid in
connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date, (a) with respect to
any voluntary Principal Prepayment of a Mortgage Loan (other than any voluntary
Principal Prepayment in Full of a WMMSC Mortgage Loan) the calendar month
preceding the month in which such Distribution Date occurs; and (b) with respect
to any Principal Prepayment in Full of a WMMSC Mortgage Loan, the period
beginning on the 15th day of the calendar month immediately preceding the month
in which such Distribution Date occurs and ending on the 14th day of the
calendar month in which such Distribution Date occurs.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy with respect to any Mortgage Loan.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date, excluding
any prepayment penalty or premium thereon, and is not accompanied by an amount
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment. Partial Principal Prepayments will be
applied by the applicable Servicers in accordance with the terms of the related
Servicing Agreements and in accordance with the terms of the related Mortgage
Note, and to the extent the Mortgage Note does not provide otherwise, shall be
applied in the Prepayment Period preceding the receipt thereof.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Private Certificate: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date and any Mortgage Loan
(i) with respect to any Senior Certificate for which such Mortgage Loan is not
in the Related Loan Group, zero, and (ii) with respect to each other Class of
Senior Certificates as to which such Mortgage Loan is in the Related Loan Group,
and each Class of Subordinate Certificates, the ratio that the amount calculated
with respect to such Distribution Date for such Class pursuant to clause (i) of
the definition of Accrued Certificate Interest (without giving effect to any
reduction of such amount pursuant to Section 4.02(c)) bears to the amount
calculated with respect to such Distribution Date for all such Classes of Senior
Certificates and for all Classes of Subordinate Certificates pursuant to clause
(i) of the definition of Accrued Certificate Interest (without giving effect to
any reduction of such amount pursuant to Section 4.02(c)); provided, however,
that with respect to the calculation in (ii) above, such calculation with
respect to the Subordinate Certificates shall be made as though each Class of
Subordinate Certificates had a Class Principal Balance equal to its pro rata
share (based on Class Principal Balance) of the Group Subordinate Amount for the
Group which includes such Mortgage Loan, and provided further that, in the event
the Pro Rata Share for any Class of Senior Certificates as so calculated exceeds
the portion of the Accrued Certificate Interest for such Class in accordance
with clause (i) of the definition thereof without adjustment for Section 4.02(c)
other than reduction for Net Prepayment Interest Shortfalls, the amount of such
excess shall be allocated pro rata to all other Classes of Senior Certificates
based on Accrued Certificate Interest pursuant to such clause (i) without
adjustment pursuant to Section 4.02(c), and shall be treated as the Pro Rata
Share of each such Class.
Proprietary Lease: The lease on a Cooperative Unit evidencing the
possessory interest of the owner of the Cooperative Shares in such Cooperative
Unit.
Prospectus Supplement: The Prospectus Supplement dated September 27,
2004 relating to the Offered Certificates.
Protected Account: An account established and maintained for the
benefit of Certificateholders by each Servicer with respect to the related
Mortgage Loans and with respect to REO Property pursuant to the respective
Servicing Agreements. Each Protected Account is required to be an Eligible
Account.
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 (A) the sum of (i) 100% of the unpaid principal balance of the Mortgage
Loan on the date of such purchase, (ii) accrued and unpaid interest thereon at
the applicable Mortgage Rate from the date through which interest was last paid
by the Mortgagor or the applicable Servicer or the Master Servicer, as the case
may be, made an Advance in respect thereof (which was not reimbursed) to the Due
Date in the month in which the Purchase Price is to be distributed to
Certificateholders, (iii) in the event that such Mortgage Loan is repurchased by
the Transferor due to a breach of the representations and warranties listed in
clauses (xiii) or (xiv) of Schedule II to this Agreement, any costs and damages
incurred by the Trust in connection with a violation of a predatory or abusive
lending law with respect to such Mortgage Loan, less (B) any Amounts Held for
Future Distribution related to such Mortgage Loan with respect to the
Distribution Date in the month in which the Purchase Price is to be distributed
to Certificateholders.
Qualified Mortgage Insurer: Any mortgage insurer that is Xxxxxx Xxx
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 the
Trust Administrator. References herein to a given rating category of a Rating
Agency shall mean such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Loan, an amount (not
less than zero or more than the Scheduled Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Loan as of the date of such liquidation, plus (ii)
interest at the Net Mortgage Rate from the Due Date as to which interest was
last paid or advanced (and not reimbursed) to Certificateholders up to the Due
Date in the month in which Liquidation Proceeds are required to be distributed
on the Scheduled Principal Balance of such Liquidated Loan from time to time,
minus (iii) the Liquidation Proceeds, if any, received during the month in which
such liquidation occurred, to the extent applied as recoveries of interest at
the Net Mortgage Rate and to principal of the Liquidated Loan. With respect to
each Mortgage Loan that has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation.
Recognition Agreement: An Agreement among a Cooperative Corporation,
a lender and a Mortgagor with respect to a Cooperative Loan whereby such parties
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan and (ii) make certain agreements with respect to such Cooperative Loan.
Record Date: With respect to any Distribution Date and any Class of
Certificates, the last Business Day of the month immediately preceding the month
in which the related Distribution Date occurs.
Recovery: With respect to any Distribution Date and any Mortgage
Loan, an amount, net of any reimbursable expenses, received in respect of
principal on such Mortgage Loan during the related Prepayment Period which has
previously been allocated as a Realized Loss to a Class of Certificates.
Refinancing Mortgage Loan: Any Mortgage Loan originated in
connection with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Related Loan Group: With respect to the Group 1 Certificates and the
Class L-1B Interest and Class L-1Q Interest, Loan Group 1; with respect to the
Group 2 Certificates and the Class L-2B Interest and Class L-2Q Interest, Loan
Group 2; and with respect to the Group 3 Certificates and the Class L-3B
Interest and Class L-3Q Interest, Loan Group 3.
Relief Act: The Servicemembers Civil Relief Act, or any comparable
state or local statute (including the comparable provisions under the California
Military and Veterans Code, as amended).
Relief Act Reduction: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (ii) interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure, deed-in-lieu of foreclosure, repossession or otherwise in
connection with a defaulted Mortgage Loan.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under the
applicable Servicing Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee or the
Trust Administrator, any Director, any Managing Director, any Associate, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee or Trust
Administrator, as applicable, customarily performing functions similar to those
performed by any of the above designated officers having direct responsibility
for the administration of this Agreement and also to whom, with respect to a
particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
Restricted Classes: As defined in Section 4.02(d).
S&P: Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto. If S&P is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 11.05(b) the
address for notices to S&P shall be Standard and Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Monitoring Group, or such other address
as S&P may hereafter furnish to each party to this Agreement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Scheduled Principal Balance: As to any Mortgage Loan and any
Distribution Date, the unpaid principal balance of such Mortgage Loan as of the
Due Date in the month preceding the month in which such Distribution Date
occurs, as specified in the amortization schedule at the time relating thereto
(before any adjustment to such amortization schedule by reason of any moratorium
or similar waiver or grace period) after giving effect to any previous partial
Principal Prepayments and Liquidation Proceeds allocable to principal received
during the Prepayment Period for the prior Distribution Date (other than with
respect to any Liquidated Loan), and to the payment of principal due on such Due
Date and irrespective of any delinquency in payment by the related Mortgagor.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: With respect to a Cooperative Loan, the
agreement or mortgage creating a security interest in favor of the originator of
the Cooperative Loan in the related Cooperative Shares.
Senior Certificates: As specified in the Preliminary Statement.
Senior Final Distribution Date: The Distribution Date on which the
respective Class Principal Balances of the Senior Certificates have each been
reduced to zero.
Senior Optimal Principal Amount: For any Distribution Date and any
Loan Group, the sum for all Mortgage Loans in such Loan Group of (i) the Senior
Percentage of (a) the principal portion of each Scheduled Payment (without
giving effect, prior to the Bankruptcy Coverage Termination Date, to any
reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on each such Mortgage Loan on the related Due Date, (b) the
principal portion of the Purchase Price of each such Mortgage Loan to the extent
it was repurchased by the Transferor pursuant to this Agreement as of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with any
Deleted Mortgage Loan related to such Loan received with respect to such
Distribution Date and (d) any Liquidation Proceeds (including Insurance
Proceeds) allocable to recoveries of principal of any Mortgage Loan related to
such Loan Group that is not yet a Liquidated Loan, received during the calendar
month preceding the month of such Distribution Date, (ii) with respect to each
such Mortgage Loan in such Loan Group that became a Liquidated Loan during the
calendar month preceding the month of such Distribution Date, the lesser of (a)
the Senior Percentage of the Scheduled Principal Balance of such Mortgage Loan,
and (b) either (A) the Senior Prepayment Percentage, or (B) if an Excess Loss
was sustained with respect to such Liquidated Loan during such prior calendar
month, the Senior Percentage of the amount of the Liquidation Proceeds allocable
to principal received with respect to such Mortgage Loan, (iii) the Senior
Prepayment Percentage of the sum of (a) all Principal Prepayments in Full of
Mortgage Loans in such Loan Group received during the related Prepayment Period
and (b) all partial Principal Prepayments of Mortgage Loans in such Loan Group
and applied during the related Prepayment Period and (iv) with respect to any
Distribution Date prior to the Cross-Over Date only, the Senior Prepayment
Percentage of the Recoveries for such Loan Group received during the related
Prepayment Period; provided, however, that, if a Bankruptcy Loss that is an
Excess Loss is sustained with respect to such Mortgage Loan that is not a
Liquidated Loan, the Senior Optimal Principal Amount will be reduced on the
related Distribution Date by the Senior Percentage of the principal portion of
such Bankruptcy Loss.
Senior Percentage: With respect to any Certificate Group and any
Distribution Date, the lesser of (i) 100% and (ii) the percentage obtained by
dividing (a) the aggregate Certificate Principal Balances of all the Senior
Certificates in the related Certificate Group immediately preceding such
Distribution Date by (b) the sum of (1) the aggregate Certificate Principal
Balances of all the Senior Certificates in the related Certificate Group and (2)
the Group Subordinate Amount for the related Certificate Group, in both cases
immediately preceding such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during the
seven years beginning on the first Distribution Date, 100%. The Senior
Prepayment Percentage for any Certificate Group and any Distribution Date
occurring on or after the seventh anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in the
first year thereafter, the Senior Percentage for such Certificate Group plus 70%
of the Subordinate Percentage for such Certificate Group for such Distribution
Date; for any Distribution Date in the second year thereafter, the Senior
Percentage for such Certificate Group plus 60% of the Subordinate Percentage for
such Certificate Group for such Distribution Date; for any Distribution Date in
the third year thereafter, the Senior Percentage for such Certificate Group plus
40% of the Subordinate Percentage for such Certificate Group for such
Distribution Date; for any Distribution Date in the fourth year thereafter, the
Senior Percentage for such Certificate Group plus 20% of the Subordinate
Percentage for such Certificate Group for such Distribution Date; and for any
Distribution Date thereafter, the Senior Percentage for such Certificate Group
for such Distribution Date (unless on any Distribution Date the Senior
Percentage for such Certificate Group exceeds the initial Senior Percentage for
such Certificate Group, in which case the Senior Prepayment Percentage for all
Certificate Groups for such Distribution Date will once again equal 100%);
provided, however, (i) if on any Distribution Date the Senior Percentage for
such Certificate Group exceeds the initial Senior Percentage for such
Certificate Group, the Senior Prepayment Percentage for all Groups for such
Distribution Date will equal 100%, (ii) if on any Distribution Date on or before
the Distribution Date in September 2007, prior to giving effect to any
distributions on such Distribution Date, the Aggregate Subordinate Percentage
for such Distribution Date is greater than or equal to twice the initial
Aggregate Subordinate Percentage, then the Senior Prepayment Percentage for such
Certificate Group for such Distribution Date will equal the Senior Percentage
for such Certificate Group plus 50% of the Subordinate Percentage for such
Certificate Group and (iii) if on any Distribution Date on or after the
Distribution Date in October 2007, prior to giving effect to any distributions
on such Distribution Date, the Aggregate Subordinate Percentage for such
Distribution Date is greater than or equal to twice the initial Aggregate
Subordinate Percentage, then the Senior Prepayment Percentage for such
Certificate Group for such Distribution Date will equal the Senior Percentage
for such Certificate Group. Notwithstanding the foregoing, no decrease in the
Senior Prepayment Percentage for a Certificate Group will occur unless both of
the Senior Step Down Conditions are satisfied.
Senior Step Down Conditions: As of the last day of the month
preceding the applicable Distribution Date as to which any decrease in the
Senior Prepayment Percentage applies, (i) the aggregate Scheduled Principal
Balance of all Mortgage Loans delinquent 60 days or more (including delinquent
Mortgage Loans in bankruptcy, and all Mortgage Loans in foreclosure and REO
Properties), as a percentage of the aggregate Class Principal Balance of the
Subordinate Certificates on such Distribution Date, does not equal or exceed 50%
and (ii) cumulative Realized Losses with respect to the Mortgage Loans do not
exceed (a) with respect to the Distribution Dates occurring between and
including October 2004 and September 2007, 20% of the Original Subordinate
Principal Balance, (b) with respect to the Distribution Date on or after October
2007, 30% of the Original Subordinate Principal Balance.
Servicer: Each of Bank of America, Cendant, Xxxxxx, GMAC,
GreenPoint, National City and Xxxxx Fargo, as applicable.
Servicer Remittance Date: With respect to any Servicer (other than
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 specified in the related
Servicing Agreement. With respect to WMMSC, as to any Distribution Date, the
24th day of each calendar month, or if such 24th day is not a Business Day, the
immediately preceding Business Day.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its master servicing obligations or the applicable Servicer, as the case may be,
of its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer or the applicable Servicer, as the
case may be, pursuant to Section 3.11 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.09.
Servicing Agreements:
(a) the Bank of America Servicing Agreement;
(b) the Cendant Servicing Agreement;
(c) the Xxxxxx Servicing Agreement;
(d) the GMAC Servicing Agreement;
(e) the GreenPoint Servicing Agreement;
(f) the National City Servicing Agreement; and
(g) the Xxxxx Fargo Servicing Agreement.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount payable out of each full payment of interest received on such Mortgage
Loan and equal to one-twelfth of the Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan as of the Due Date in the
month immediately preceding the month in which such Distribution Date occurs
(after giving effect to any Scheduled Payments due on such Mortgage Loan on such
Due Date), subject to reduction for any Compensating Interest payments required
to be made by the applicable Servicer.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate set forth on the Mortgage Loan Schedule.
Similar Law: As defined in Section 5.02(b) hereof.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss as reported by the applicable
Servicer to the Master Servicer suffered by a Mortgaged Property on account of
direct physical loss but not including (i) any loss of a type covered by a
hazard insurance policy or a flood insurance policy required to be maintained
with respect to such Mortgaged Property pursuant to Section 3.11 to the extent
of the amount of such loss covered thereby, or (ii) any loss caused by or
resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, the Trust Administrator, any Servicer, the Master Servicer or any of
their agents or employees (without regard to any portion of the loss not covered
by any errors and omissions policy);
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for the
ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and whether
such loss be direct or indirect, proximate or remote or be in whole or in part
caused by, contributed to or aggravated by a peril covered by the definition of
the term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending or
expected attack:
(i) by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using
military, naval or air forces; or
(ii) by military, naval or air forces; or
(iii) by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority or
risks of contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: With respect to any
Distribution Date, $3,000,000 less (i) the aggregate amount of Special Hazard
Losses that would have been previously allocated to the Subordinate Certificates
in the absence of the Loss Allocation Limitation and (ii) the Adjustment Amount
as of the most recent anniversary of September 1, 2004. As of any Distribution
Date after the Cross-Over Date, the Special Hazard Loss Coverage Amount for such
Subordinate Certificates shall be zero. All principal balances for the purpose
of this definition will be calculated as of the first day of the calendar month
preceding the month of such Distribution Date after giving effect to Scheduled
Payments on the Mortgage Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Loan as to which a
Special Hazard Loss has occurred.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Startup Day: The Closing Date.
Stock Power: With respect to a Cooperative Loan, an assignment of
the stock certificate or an assignment of the Cooperative Shares issued by the
Cooperative Corporation.
Subordinate Certificates: As specified in the Preliminary Statement.
Subordinate Certificates Fractional Interest Test: This test is
satisfied with respect to a Class of Subordinate Certificates and any
Distribution Date if (a) on any Distribution Date on or prior to the
Distribution Date in September 2007, the Fractional Interest of such Class is
greater than or equal to twice its Fractional Interest on the Closing Date and
(b) the Senior Prepayment Percentage for such Distribution Date is determined in
accordance with clause (ii) or (iii) of the proviso in the definition of "Senior
Prepayment Percentage."
Subordinate Optimal Principal Amount: For any Distribution Date and
any Loan Group, the sum for each Mortgage Loan in such Loan Group of (i) the
Subordinate Percentage of (a) the principal portion of each Scheduled Payment
(without giving effect, prior to the Bankruptcy Coverage Termination Date, to
any reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on each such Mortgage Loan on the related Due Date, (b) the
principal portion of the Purchase Price of each such Mortgage Loan to the extent
it was repurchased by the Transferor pursuant to this Agreement as of such
Distribution Date, (c) the Substitution Adjustment Amount in connection with any
Deleted Mortgage Loan related to such Loan Group received with respect to such
Distribution Date, (d) any Liquidation Proceeds (including Insurance Proceeds)
allocable to recoveries of principal of Mortgage Loans related to such Loan
Group that are not yet Liquidated Loans, received during the calendar month
preceding the month of such Distribution Date, (ii) with respect to each
Mortgage Loan in such Loan Group that became a Liquidated Loan during the
calendar month preceding the month of such Distribution Date, the portion of the
amount of the Liquidation Proceeds allocable to principal received with respect
to such Mortgage Loan that was not included in clause (ii) of the definition of
"Senior Optimal Principal Amount" for such Distribution Date, (iii) the
Subordinate Prepayment Percentage of the sum of (a) all Principal Prepayments in
Full of Mortgage Loans in such Loan Group received during the related Prepayment
Period and (b) all partial Principal Prepayments of Mortgage Loans in such Loan
Group and applied during the related Prepayment Period and (iv) with respect to
any Distribution Date prior to the Cross-Over Date only, the Subordinate
Prepayment Percentage related to such Group of the Recoveries received during
the related Prepayment Period; provided, however, that if a Bankruptcy Loss that
is an Excess Loss is sustained with respect to a Mortgage Loan in such Loan
Group that is not a Liquidated Loan, the Subordinate Optimal Principal Amount
will be reduced on the related Distribution Date by the Subordinate Percentage
of the principal portion of such Bankruptcy Loss.
Subordinate Percentage: As to any Distribution Date and any
Certificate Group, 100% minus the Senior Percentage for such Certificate Group
for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
any Certificate Group, 100% minus the Senior Prepayment Percentage for such
Certificate Group for such Distribution Date, except that, on any Distribution
Date after the Senior Final Distribution Date for any Certificate Group, the
Subordinate Prepayment Percentage for such Certificate Group will equal 100%.
Subordinate Principal Distribution Amount: With respect to the
Subordinate Certificates, the aggregate amount that would be payable as
principal on such Subordinate Certificates from Available Funds for the Loan
Groups in the aggregate, after application of Available Funds for each such Loan
Group (i) to make payments on the related Senior Certificates in accordance with
Section 4.02(a)(i) items first and second and Section 4.02(e) and (ii) to make
payments of Accrued Certificate Interest to the Subordinate Certificates in
accordance with Section 4.02(a)(ii).
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03.
Tax Matters Person: The Holder of (i) the Class A-LR and (ii) the
Class A-R Certificates designated as "tax matters person" of (x) the Lower-Tier
REMIC and (y) the Upper-Tier REMIC, respectively, in the manner provided under
Treasury Regulations Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transferor: UBS Real Estate Securities Inc., a Delaware corporation,
seller of the Mortgage Loans to the Depositor pursuant to the Mortgage Loan
Purchase Agreement.
Trust: As defined in Section 2.01(c).
Trust Administrator: Xxxxx Fargo, in its capacity as Trust
Administrator.
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loan Purchase Agreement, the Servicing Agreements solely as
each such Servicing Agreement relates to the Mortgage Loans being serviced by
the related Servicer (other than those rights under the Servicing Agreements
that do not relate to the servicing of the Mortgage Loans (including, without
limitation, the representations and warranties made by the applicable Servicers
(with respect to the Mortgage Loans sold to the Transferor) and the document
delivery requirements of such Servicer and the remedies (including
indemnification) available for breaches thereto), which rights were retained by
the Transferor pursuant to the Assignment Agreements); (ii) the Mortgage Loans
and all interest and principal received on or with respect thereto after the
Cut-off Date to the extent not applied in computing the Cut-off Date Principal
Balance thereof; (iii) the Collection Account and the Distribution Account and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iv) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise and (v) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing.
Trust REMIC: Any of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder.
Trustee: JPMorgan Chase Bank, a New York banking corporation, and
its successors and, if a successor trustee is appointed hereunder, such
successor.
Undercollateralized Group: Any Certificate Group, as to which, on
any Distribution Date, the aggregate Class Principal Balance of the Senior
Certificates related to such Certificate Group of which (after giving effect to
distributions to be made on such Distribution Date) is greater than the Group
Pool Principal Balance of the related Loan Group for the following Distribution
Date.
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class P
Certificates and (b) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Principal Balances of their respective Certificates on such date.
The Voting Rights allocated to a Class of Certificates will be allocated among
all Holders of that Class in proportion to the respective outstanding
Certificate Principal Balances, or Percentage Interest, of those Certificates.
Xxxxx Fargo: Xxxxx Fargo Bank, National Association and its
successors and assigns, in its capacity as Master Servicer, as Servicer of the
Xxxxx Fargo Serviced Mortgage Loans, Trust Administrator or Custodian, as the
case may be, hereunder.
Xxxxx Fargo Serviced Mortgage Loans: The Mortgage Loans for which
Xxxxx Fargo is listed as "Servicer" on the Mortgage Loan Schedule.
Xxxxx Fargo Servicing Agreements: Solely with respect to the Xxxxx
Fargo Serviced Mortgage Loans, the Seller's Warranties and Servicing Agreement,
dated as of August 1, 2004, between the Transferor and Xxxxx Fargo (f/k/a Xxxxx
Fargo Home Mortgage Inc.), as such may be amended from time to time, and any
assignments and conveyances relating to the Xxxxx Fargo Serviced Mortgage Loans.
WMMSC: Washington Mutual Mortgage Securities Corp. and its
successors and assigns, in its capacity as Servicer of the WMMSC Mortgage Loans.
WMMSC Investment Earnings Amount: With respect to any Distribution
Date, an amount equal to the investment earnings, if any, that accrued on
amounts then held in the Distribution Account in respect of the WMMSC Monthly
Remittance Amount, for the period from and including the Servicer Remittance
Date immediately preceding such Distribution Date, to and including such
Distribution Date.
WMMSC Monthly Remittance Amount: With respect to any Distribution
Date and any WMMSC Mortgage Loans, an amount equal to the funds that WMMSC
withdrew from its Protected Account and remitted to the Trust Administrator on
the Servicer Remittance Date immediately preceding such Distribution Date in
respect of any of the items listed in sub-clauses (i) through (vii) of Section
2.6(b) of the WMMSC Servicing Agreement.
WMMSC Mortgage Loans: The Mortgage Loans for which WMMSC is listed
as "Servicer" on the Mortgage Loan Schedule. There are no WMMSC Mortgage Loans
in the Trust Fund.
WMMSC Servicing Agreement: The Servicing Agreement, dated as of
August 1, 2002, between the Transferor and WMMSC, as amended by Amendment Number
One, dated November 1, 2002, as further amended by Amendment Number Two, dated
January 1, 2003, and as the same may be amended further from time to time.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, all calculations of interest
(other than as provided in the Mortgage Loan documents) provided for herein
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund together with all rights assigned by the
Transferor to the Depositor, pursuant to the Mortgage Loan Purchase Agreement,
solely with respect to the Mortgage Loans, and, solely with respect to the
Mortgage Loans, all of the Transferor's right, title and interest in and to the
Servicing Agreements solely as each such Servicing Agreement relates to the
Mortgage Loans being serviced by the related Servicer (other than those rights
under the Servicing Agreements that do not relate to servicing of the Mortgage
Loans (including, without limitation, the representations and warranties made by
each Servicer (in its capacity as loan seller to the Transferor) and the
document delivery requirements of such Servicer and the remedies (including
indemnification) available for breaches thereto), which rights were retained by
the Transferor pursuant to the Assignment Agreements). In connection with the
foregoing assignments, the Transferor has caused each Servicer to enter into the
related Assignment Agreement.
(b) (i) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to the
Custodian, on behalf of the Trustee, for the benefit of the Certificateholders
the following documents or instruments with respect to each Mortgage Loan that
is not a Cooperative Loan so assigned:
(A) 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;
(B) 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;
(C) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments), endorsed in the
following form: "JPMorgan Chase Bank, in trust for the MASTR
Adjustable Rate Mortgages Trust 2004-10 for the benefit of the
Holders of the Mortgage Pass-Through Certificates, Series 2004-10"
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;
(D) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(E) except as provided below, the original or duplicate
original lender's title policy and all riders thereto.
(ii) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to
the Custodian, on behalf of the Trustee, for the benefit of the
Certificateholders the following documents or instruments with respect to
each Cooperative Loan so assigned:
(A) the Cooperative Shares, together with the Stock Power in
blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease and the Assignment of
Proprietary Lease to the originator of the Cooperative Loan;
(D) the executed Recognition Agreement, if any;
(E) copies of the original UCC financing statement, and any
continuation statements, filed by the originator of such Cooperative
Loan as secured party, each with evidence of recording thereof,
evidencing the interest of the originator under the Security
Agreement and the Assignment of Proprietary Lease;
(F) copies of the filed UCC assignments or amendments of the
security interest referenced in clause (E) above showing an unbroken
chain of title from the originator to the Trust, each with evidence
of recording thereof, evidencing the interest of the assignee under
the Security Agreement and the Assignment of Proprietary Lease;
(G) an executed assignment of the interest of the originator
in the Security Agreement, the Assignment of Proprietary Lease and
the Recognition Agreement, if any, showing an unbroken chain of
title from the originator to the Trust; and
(H) for any Cooperative Loan that has been modified or
amended, the original instrument or instruments effecting such
modifications or amendment.
Notwithstanding the foregoing, if any Mortgage has been recorded in
the name of Mortgage Electronic Registration System, Inc. ("MERS") or its
designee, no assignment of Mortgage in favor of the Trustee will be required to
be prepared or delivered and instead, the Master Servicer shall enforce the
obligations of the applicable Servicer under the related Servicing Agreement to
cause the Trustee 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 (b)(i)(B), (b)(i)(C) or (b)(i)(E) 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 (b)(i)(B) or (b)(i)(C) above, or because the title policy has
not been delivered to either the Custodian or the Depositor by the applicable
title insurer in the case of clause (b)(i)(E) above, the Depositor shall
promptly deliver to the Custodian, in the case of clause (b)(i)(B) or (b)(i)(C)
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 (b)(i)(E) 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
Custodian as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. The Depositor shall forward or cause to be
forwarded to the Custodian (a) from time to time additional original documents
evidencing an assumption or modification of a Mortgage Loan and (b) any other
documents required to be delivered by the Depositor to the Custodian. In the
event that the original Mortgage is not delivered and in connection with the
payment in full of the related Mortgage Loan and the public recording office
requires the presentation of a "lost instruments affidavit and indemnity" or any
equivalent document, because only a copy of the Mortgage can be delivered with
the instrument of satisfaction or reconveyance, the Custodian shall execute and
deliver or cause to be executed and delivered such a document to the public
recording office. In the case where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, the Transferor shall deliver to the
Custodian a copy of such Mortgage certified by such public recording office to
be a true and complete copy of the original recorded Mortgage.
As promptly as practicable subsequent to such transfer and
assignment, set forth in clause (a) above and in any event, within ninety (90)
days thereafter, the Custodian shall affix the Trustee's name to each assignment
of Mortgage, as the assignee thereof, and, subject to Section 2.02, the Master
Servicer shall enforce the obligations of the related Servicer pursuant to the
related Servicing Agreement to (i) cause such assignment to be in proper form
for recording in the appropriate public office for real property records and
(ii) cause to be delivered for recording in the appropriate public office for
real property records the assignments of the Mortgages to the Trustee, except
that, with respect to any assignments of Mortgage as to which the related
Servicer has not received the information required to prepare such assignment in
recordable form, the related Servicer's obligation to do so and to deliver the
same for such recording shall be as soon as practicable after receipt of such
information and in any event within ninety (90) days after receipt thereof and
except that the related Servicer need not cause to be recorded any assignment
which relates to a Mortgage Loan (a) in any state where, in an Opinion of
Counsel addressed to the Trustee, such recording is not required to protect the
Trustee's interests in the Mortgage Loan against the claim of any subsequent
transferee or any successor to or creditor of the Depositor or the Transferor,
(b) in any state where recordation is not required by either Rating Agency to
obtain the initial ratings set forth in the Prospectus Supplement on the
Certificates or (c) with respect to any Mortgage which has been recorded in the
name of MERS, or its designee. As of the date hereof, Florida and Maryland are
the only states where recordation is required by either Rating Agency to obtain
the initial rating on the Certificates (upon which statement the Master
Servicer, the Trustee and the Custodian may conclusively rely).
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 Custodian on behalf of the Trustee, will deposit in the Collection Account
the portion of such payment that is required to be deposited in the Collection
Account pursuant to Section 3.07 hereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "MASTR Adjustable Rate
Mortgages Trust 2004-10" and JPMorgan Chase Bank, is hereby appointed as Trustee
in accordance with the provisions of this Agreement.
(d) On or prior to the Closing Date, the Depositor shall remit to
the Master Servicer for deposit in the Collection Account the Initial Depositor
Required Deposit in respect of the Alternate Cut-Off Date Mortgage Loans. Such
amount shall be allocated as interest with respect to each of the Loan Groups
based on the aggregate amount of interest that would have accrued on each
Alternate Cut-Off Date Mortgage Loan in each such Loan Group for the Interest
Accrual Period related to the October 2004 Distribution Date, had the Cut-Off
Date for such Mortgage Loans been September 1, 2004 (instead of October 2004).
(e) It is agreed and understood by the Trustee, the Depositor and
the Transferor that it is not intended that any mortgage loan be included in the
Trust that is a "High Cost Home Loan" as defined in the New Jersey Home
Ownership Act of 2002 effective November 27, 2003 or as defined in the New
Mexico Home Loan Protection Act effective January 1, 2004.
Section 2.02 Acceptance by Trustee of the Mortgage Loans. The
Custodian, on behalf of the Trustee, acknowledges receipt of the documents
identified in the Initial Certification in the form annexed hereto as Exhibit F,
and declares that it holds and will hold such documents and the other documents
delivered to it constituting the related Mortgage Files, and the Custodian and
the 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 Custodian acknowledges that it will
maintain possession of the Mortgage Notes held by it in the State of Minnesota,
unless otherwise permitted by the Rating Agencies and the Trustee.
The Custodian agrees to execute and deliver on the Closing Date to
the Depositor and the Trustee an Initial Certification in the form annexed
hereto as Exhibit F. Based on its review and examination, and only as to the
documents identified in such Initial Certification, the Custodian acknowledges,
subject to any applicable exceptions noted on Exhibit F that such documents
appear regular on their face and relate to such Mortgage Loan. The Custodian
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)(i)(D) with respect to each Mortgage Loan that is not a Cooperative Loan
and Section 2.01(b)(ii)(H) with respect to each Cooperative Loan, unless the
Mortgage Loan Schedule indicates that such documents are applicable.
Not later than 90 days after the Closing Date, the Custodian shall
deliver to the Depositor, the Trustee and the Transferor a Final Certification
in the form annexed hereto as Exhibit G, with any applicable exceptions noted
thereon. The Custodian shall make available, upon request of any
Certificateholder, a copy of any exceptions noted on the Initial Certification
or the Final Certification. The Custodian shall make available, upon request of
the Trustee, the identity of the originator for any Mortgage Loan with a
material exception.
If, in the course of such review, the Custodian finds any document
constituting a part of a Mortgage File which does not meet the requirements of
Section 2.01, the Custodian shall list such as an exception in the Final
Certification; provided, however, that the Custodian shall not make any
determination as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note, (ii) any assignment is in recordable form
or is sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates or (iii) the Mortgage
File should include any of the documents specified in Section 2.01(b)(i)(D) with
respect to each Mortgage Loan that is not a Cooperative Loan and Section
2.01(b)(ii)(H) with respect to each Cooperative Loan, unless the Mortgage Loan
Schedule indicates that such documents are applicable.
Upon receiving the Final Certification from the Custodian, the
Trustee shall notify the Transferor of any document defects listed as exceptions
in the Final Certification. The Trustee shall enforce the applicable duties of
the Transferor pursuant to the terms of this Section 2.02 to correct and cure
such document defects, and if the Transferor fails to correct or cure the defect
within ninety (90) days of the earlier of its discovery or its receipt of
written notice of any document constituting a part of a Mortgage File that does
not meet the requirements of Section 2.01, and such defect materially and
adversely affects the interests of the Certificateholders in the related
Mortgage Loan, the Transferor shall repurchase the affected Mortgage Loan at the
Purchase Price and the Trustee shall enforce the Transferor's obligations
hereunder to purchase such Mortgage Loan at the Purchase Price. Any such
purchase of a Mortgage Loan shall not be effected prior to the delivery to the
Custodian of a Request for Release substantially in the form of Exhibit L. The
Purchase Price for any such Mortgage Loan shall be paid by the Transferor to the
Master Servicer for deposit in the Collection Account on or prior to the
Distribution Account Deposit Date for the Distribution Date in the month
following the month of repurchase and, upon receipt of such deposit, the Master
Servicer shall instruct the Custodian to release, and the Custodian shall
release, the related Mortgage File to the Transferor and the Trustee shall
execute and deliver at the Transferor's written request such instruments of
transfer or assignment prepared by the Transferor, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
Transferor, or a designee, the Trustee's interest in any Mortgage Loan released
pursuant hereto. The Transferor shall promptly reimburse the Master Servicer and
the Trustee for any expenses reasonably incurred by the Master Servicer or the
Trustee in respect of enforcing such repurchase by the Transferor.
The Custodian shall retain possession and custody of each related
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. Pursuant to the terms of the related Servicing Agreement, the
Master Servicer shall cause each of the related Servicers to promptly deliver to
the Custodian who shall thereupon promptly deposit within each Mortgage File,
upon the execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the possession of the
related Servicers from time to time.
It is understood and agreed that the obligations of the Transferor,
hereunder, to purchase any Mortgage Loan which does not meet the requirements of
Section 2.01 above or substitute for the related Mortgage Loan an Eligible
Substitute Mortgage Loan shall constitute the sole remedies respecting such
defect available to the Trustee, the Master Servicer, the Trust Administrator,
the Depositor and any Certificateholder.
Section 2.03 Remedies for Breaches of Representations and
Warranties. The Transferor hereby makes the representations and warranties set
forth in Schedule II hereto, and by this reference incorporated herein, to the
Depositor and the Trustee, as of the Closing Date, or if so specified therein,
as of the Cut-off Date.
Upon discovery by any of the parties hereto of a breach of a
representation or warranty made by the Transferor pursuant to this Section 2.03
that materially and adversely affects the interests of the Certificateholders in
any Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. Notwithstanding the foregoing, (i) a breach which
causes a Mortgage Loan not to constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, or (ii) a breach of any of the
representations and warranties set forth in clauses (xiv), (xxiv), (xxxv),
(xxxvi), (xxxvii), (xxxviii) and (xxxix) of Schedule II, in each case, will be
deemed automatically to materially and adversely affect the interests of the
Certificateholders in such Mortgage Loan. Upon receiving notice of a breach, the
Trustee shall in turn notify the Transferor of such breach. The Trustee shall
enforce the obligations of the Transferor in accordance with this Section 2.03
to correct or cure any such breach of a representation or warranty made herein,
and if the Transferor fails to correct or cure the defect within such period,
and such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee shall enforce the
Transferor's obligations hereunder to (i) purchase such Mortgage Loan at the
Purchase Price or (ii) substitute for the related Mortgage Loan an Eligible
Substitute Mortgage Loan. In each case, such Mortgage Loan (a "Deleted Mortgage
Loan") will be removed from the Trust Fund.
The Transferor hereby covenants that within ninety (90) days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made pursuant to this Section 2.03
which materially and adversely affects the interest of the Certificateholders in
any Mortgage Loan it shall cure such breach in all material respects, and if
such breach is not so cured, shall, (i) if such ninety (90) day period expires
prior to the second anniversary of the Closing Date, remove such Deleted
Mortgage Loan from the Trust Fund and substitute in its place an Eligible
Substitute Mortgage Loan or Loans into the Trust Fund, in the manner and subject
to the conditions set forth in this Section; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans 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 Custodian on behalf of the Trustee for the
benefit of the Certificateholders the Mortgage Note, the Mortgage, the related
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution is permitted to be made on
any day in any calendar month after the Determination Date for such month.
With respect to substitutions made by the Transferor, Scheduled
Payments due with respect to Eligible Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
Transferor on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter the
Transferor shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan. The Custodian shall amend the Mortgage Loan Schedule for
the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Eligible Substitute Mortgage Loan or
Loans and the Custodian shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon such substitution, the Eligible Substitute Mortgage Loan or Loans
shall be subject to the terms of this Agreement in all respects, and the
Transferor shall be deemed to have made with respect to such Eligible Substitute
Mortgage Loan or Loans, as of the date of substitution, the representations and
warranties made pursuant to this Section 2.03 with respect to such Mortgage
Loan. Upon any such substitution and the deposit to the Collection Account of
the amount required to be deposited therein in connection with such substitution
as described in the following paragraph, the Custodian shall release the
Mortgage File held for the benefit of the Certificateholders relating to such
Deleted Mortgage Loan to the Transferor and shall execute and deliver or cause
the Trustee to execute and deliver at the Transferor's direction such
instruments of transfer or assignment prepared by the Transferor, without
recourse, representation or warranty, as shall be necessary to vest title in the
Transferor, as applicable, or its designee, the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which the Transferor substitutes one or more
Eligible Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
principal balance of all such Eligible Substitute Mortgage Loans as of the date
of substitution is less than the aggregate Scheduled Principal Balance of all
such Deleted Mortgage Loans (after application of the scheduled principal
portion of the monthly payments due in the month of substitution). The amount of
such shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be remitted by the Transferor to the Master Servicer, and the Master
Servicer shall deposit such amounts received from the Transferor into the
Collection Account on or before the Distribution Account Deposit Date for the
Distribution Date in the month succeeding the calendar month during which the
related Mortgage Loan became required to be purchased or replaced hereunder.
In the event that the Transferor shall have repurchased a Mortgage
Loan, the Purchase Price therefor shall be deposited in the Collection Account
pursuant to Section 3.07 on or before the Distribution Account Deposit Date for
the Distribution Date in the month following the month during which the
Transferor became obligated hereunder to repurchase or replace such Mortgage
Loan and upon such deposit of the Purchase Price and receipt of a Request for
Release in the form of Exhibit L hereto, the Custodian shall release the related
Mortgage File held for the benefit of the Certificateholders to the Transferor,
and the Trustee shall execute and deliver at the Transferor's direction such
instruments of transfer or assignment prepared by the Transferor, in each case
without recourse, representation or warranty, as shall be necessary to transfer
title from the Trustee. It is understood and agreed that the obligation under
this Agreement of the Transferor to cure, repurchase or replace any Mortgage
Loan as to which a breach has occurred and is continuing shall constitute the
sole remedies against the Transferor respecting such matters available to
Certificateholders, the Master Servicer, the Depositor, the Trust Administrator
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 Custodian for the benefit of the Trustee and
the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans. The Depositor hereby represents and warrants to the Trustee,
the Trust Administrator 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 Custodian. Upon discovery by the Depositor, the Transferor, the Master
Servicer, the Trust Administrator 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 other parties hereto and to each
Rating Agency.
Section 2.05 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the assets of the Trust Fund
and acknowledges the issuance of the Lower-Tier REMIC Regular Interests and the
Class A-LR Certificates in exchange therefor. The Trustee acknowledges the
transfer and assignment to it of the Lower-Tier REMIC Regular Interests and,
concurrently with such transfer and assignment, acknowledges the issuance of the
Class A-UR Interest. The Trust Administrator on behalf of the Trustee 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 Upper-Tier REMIC in exchange therefor. The Trustee
agrees to hold the Trust Fund and the Lower-Tier REMIC Regular Interests and to
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates and to perform the duties set forth in this
Agreement to the best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations as "regular interests" or "residual interests" and "latest possible
maturity date" for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. Each REMIC shall have the calendar year as its fiscal year and shall use
the accrual method of accounting.
The pass-through rate with respect to the Class L-1B Interest and
Class L-1Q Interest shall be a per annum rate equal to the weighted average of
the Net Mortgage Rates on the Group 1 Mortgage Loans. The pass-through rate with
respect to the Class L-2B Interest and Class L-2Q Interest shall be a per annum
rate equal to the weighted average of the Net Mortgage Rates on the Group 2
Mortgage Loans. The pass-through rate with respect to the Class L-3B Interest
and Class L-3Q Interest shall be a per annum rate equal to the weighted average
of the Net Mortgage Rates on the Group 3 Mortgage Loans. Each of the foregoing
determinations, shall be weighted on the basis of their respective Scheduled
Principal Balances, as of the first day of the related Interest Accrual Period
(after taking into account scheduled payments of principal on such date).
As of the Closing Date and any date of determination, (i) the
principal balance of the Class L-1B Interest shall equal 0.10% of the Group 0
Xxxxxxxxxxx Xxxxxx, (xx) the principal balance of the Class L-2B Interest shall
equal 0.10% of the Group 2 Subordinate Amount and (iii) the principal balance of
the Class L-3B Interest shall equal 0.10% of the Group 3 Subordinate Amount (in
each case, computed to at least eight decimal places).
As of the Closing Date and any date of determination, (i) the
principal balance of the Class L-1Q Interest shall equal the excess of the
aggregate Scheduled Principal Balance of the Group 1 Mortgage Loans (less $50
allocable to the Class A-LR Certificates until paid) over the principal balance
of the Class L-1B Interest, (ii) the principal balance of the Class L-2Q
Interest shall equal the excess of the aggregate Scheduled Principal Balance of
the Group 2 Mortgage Loans over the principal balance of the Class L-2B Interest
and (iii) the principal balance of the Class L-3Q Interest shall equal the
excess of the aggregate Scheduled Principal Balance of the Group 3 Mortgage
Loans over the principal balance of the Class L-3B Interest.
For federal income tax purposes, the Pass-Through Rate for the Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates for
any Distribution Date shall be expressed as a per annum rate equal to the
weighted average of (i) the pass-through rate for the Class L-1B Interest, (ii)
the pass-through rate for the Class L-2B Interest and (iii) the pass-through
rate for the Class L-3B Interest, weighted, for each of the foregoing
determinations, on the basis of the respective principal balance of each such
Lower-Tier REMIC Regular Interest (computed to at least eight decimal places),
immediately prior to such Distribution Date.
Section 2.07 Covenants of the Master Servicer. The Master Servicer
hereby covenants to the Depositor and the Trustee as follows:
(a) subject to Section 3.01, the Master Servicer shall cause each
Servicer to perform its obligations under the applicable Servicing Agreement;
and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any affiliate
of the Depositor or the Trustee and prepared by the Master Servicer pursuant to
this Agreement will contain any untrue statement of a material fact or omit to
state a material fact necessary to make such information, certificate, statement
or report not misleading at the time provided; 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 2.08 Representations and Warranties of the Master Servicer.
The Master Servicer hereby represents and warrants to the Depositor, the
Custodian 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 national banking
association and is validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to transact any
and all business contemplated by this Agreement to be conducted by the Master
Servicer in any state in which a Mortgaged Property is located or is otherwise
not required under applicable law to effect such qualification and, in any
event, is in compliance with the doing business laws of any such state, to
master service the Mortgage Loans in accordance with the terms of this Agreement
and to perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(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 hereof by the other
parties hereto, 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 hereof 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 hereof 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 to the knowledge of the Master
Servicer, 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, to the knowledge of the
Master Servicer, order of any court or governmental agency or body is required
for the execution, delivery and performance by the Master Servicer of, or
compliance by the Master Servicer with, this Agreement or the consummation of
the transactions contemplated thereby, or if any such consent, approval,
authorization or order is required, the Master Servicer has obtained the same.
Section 2.09 Representations and Warranties of the Custodian. The
Custodian hereby represents and warrants to the Depositor, the Master Servicer,
the Trust Administrator and the Trustee, as of the Closing Date, or if so
specified herein, as of the Cut-off Date:
(a) The Custodian is duly organized as a national banking
association and is validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to transact any
and all business contemplated by this Agreement to be conducted by the Custodian
in any state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any event, is
in compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) The Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of the Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of the Custodian, enforceable against the Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought.
(c) The execution and delivery of this Agreement by the Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of the Custodian and will not (i) result in a
material breach of any term or provision of the articles of incorporation or
by-laws of the Custodian, (ii) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which the Custodian is a
party or by which it may be bound, or (iii) constitute a material violation of
any statute, order or regulation applicable to the Custodian of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Custodian; and the Custodian is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair the Custodian's ability to perform or meet any
of its obligations under this Agreement.
(d) No litigation is pending or, to the knowledge of the Custodian,
threatened against the Custodian that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or the ability of the
Custodian to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Custodian of, or compliance by the Custodian with, this
Agreement or the consummation of the transactions contemplated thereby, or if
any such consent, approval, authorization or order is required, the Custodian
has obtained the same.
ARTICLE III
ADMINISTRATION AND MASTER
SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicing of Mortgage Loans. For and on behalf
of the Certificateholders, the Master Servicer shall supervise, monitor and
oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. With respect to WMMSC, any WMMSC Mortgage Loans
and any 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 such WMMSC Servicing Agreement, (ii)
enforcing WMMSC's obligation to remit to the Trust Administrator hereunder,
(iii) receiving the annual compliance statements from WMMSC and (iv) complying
with the provisions of Section 3.02(b) hereof and such 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 sentence, 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 any WMMSC Mortgage Loans) and shall
cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers' and Master Servicer's records, and based on such
reconciled and corrected information, prepare the statements specified in
Section 4.04 and any other information and statements required hereunder
provided, however, that the Master Servicer shall be under no obligation to
perform the duties outlined in this sentence with respect to WMMSC or any 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 any
WMMSC Mortgage Loans, the Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicers to the
Collection Account pursuant to the applicable Servicing Agreements.
In accordance with the standards of the preceding paragraph and to
the extent the related Servicer does not make such advance, the Master Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.07, and further as
provided in Section 3.08. The costs incurred by the Master Servicer, if any, in
effecting the timely payment of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Scheduled Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
Section 3.02 Monitoring of Servicers. (a) The Master Servicer shall
be responsible for reporting to the Trustee, the Trust Administrator and the
Depositor the compliance by each Servicer with its duties under the related
Servicing Agreement. In the review of each Servicer's activities, the Master
Servicer may rely upon an officer's certificate of the Servicer with regard to
such Servicer's compliance with the terms of its Servicing Agreement. In the
event that the Master Servicer, in its judgment, determines that a Servicer
should be terminated in accordance with its Servicing Agreement, or that a
notice should be sent pursuant to such Servicing Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds for such
termination, the Master Servicer shall notify the Depositor, the Trust
Administrator 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, the Trust
Administrator and the Certificateholders, shall enforce the obligations of each
Servicer under the related Servicing Agreement, and shall, in the event that a
Servicer fails to perform its obligations in accordance with the related
Servicing Agreement, subject to the preceding paragraph, terminate the rights
and obligations of such Servicer thereunder and act as successor Servicer of the
related Mortgage Loans or cause the Trustee to enter into a new Servicing
Agreement with a successor Servicer selected by the Master Servicer; provided,
however, it is understood and acknowledged by the parties hereto that there will
be a period of transition (not to exceed 90 days) before the actual servicing
functions can be fully transferred to such successor Servicer. Such enforcement,
including, without limitation, the legal prosecution of claims, termination of
Servicing Agreements and the pursuit of other appropriate remedies, shall be in
such form and carried out to such an extent and at such time as the Master
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, provided that the Master Servicer shall not be
required to prosecute or defend any legal action except to the extent that the
Master Servicer shall have received reasonable indemnity for its costs and
expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data and
the completion, correction or manipulation of such servicing data as may be
required by the successor servicer to correct any errors or insufficiencies in
the servicing data or otherwise to enable the successor servicer to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Collection
Account.
(d) The Master Servicer shall require each Servicer to comply with
the remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
(f) If a Servicer fails to make its required payment of Compensating
Interest on any Distribution Date, the Master Servicer will be required to make
such payment of Compensating Interest to the same extent that such Servicer was
required to make such payment of Compensating Interest.
(g) To the extent a Servicer requests the consent of the Trust or
the Master Servicer with respect to any servicing-related matter for which the
applicable Servicer is required to seek consent under the applicable Servicing
Agreement or Assignment Agreement, the Master Servicer shall promptly or within
the time frame specified in such Servicing Agreement, if any, evaluate such
request for consent in the best interest of the Trust and the
Certificateholders, and grant or withhold such consent accordingly.
Section 3.03 [Reserved].
Section 3.04 Rights of the Depositor and the Trustee in Respect of
the Master Servicer. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer hereunder and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer hereunder and in connection with any such defaulted obligation to
exercise the related rights of the Master Servicer hereunder; provided that the
Master Servicer shall not be relieved of any of its obligations hereunder by
virtue of such performance by the Depositor or its designee. Neither the Trustee
nor the Depositor shall have any responsibility or liability for any action or
failure to act by the Master Servicer or any Servicer nor shall the Trustee or
the Depositor be obligated to supervise the performance of the Master Servicer
hereunder or any Servicer under any Servicing Agreement or otherwise.
Section 3.05 Trustee to Act as Master Servicer. In the event that
the Master Servicer shall for any reason no longer be the Master Servicer
hereunder (including by reason of a Master Servicer Event of Termination), the
Trustee or its successor shall in accordance with Section 7.02 thereupon assume
all of the rights and obligations of the Master Servicer hereunder arising
thereafter (except that the Trustee shall not be (i) liable for losses of the
predecessor Master Servicer or any acts or omissions of the predecessor Master
Servicer hereunder), (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2.02 or 2.03
hereof, (iv) responsible for expenses of the Master Servicer pursuant to Section
2.03 hereof or (v) deemed to have made any representations and warranties of the
Master Servicer pursuant to Section 2.08 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 each subservicing agreement or
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)(iii); provided that the Master Servicer shall reimburse the
Trust for any such expense incurred by the Trust.
Section 3.06 Protected Accounts. (a) The Master Servicer shall
enforce the obligation of each Servicer to establish and maintain a Protected
Account in accordance with the applicable Servicing Agreement, with records to
be kept with respect thereto on a Mortgage Loan by Mortgage Loan basis, into
which accounts shall be deposited within 48 hours (or as of such other time
specified in the related Servicing Agreement) of receipt all collections of
principal and interest on any Mortgage Loan or amounts received with respect to
any REO Property, including Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds, and advances made from the Servicer's own funds (less
servicing compensation as permitted by the applicable Servicing Agreement in the
case of any Servicer) and all other amounts to be deposited in the Protected
Account. The Master Servicer is hereby authorized to make withdrawals from and
deposits to the related Protected Account for purposes required or permitted by
this Agreement.
(b) In accordance with the terms of the applicable Servicing
Agreement, amounts on deposit in a Protected Account are required to be invested
by the applicable Servicer in Permitted Investments. The income earned from
investments made pursuant to this Section 3.06 shall be paid to the related
Servicer under the applicable Servicing Agreement, and the risk of loss of
moneys required to be distributed to the Certificateholders resulting from such
investments shall be borne by and be the risk of the related Servicer. The
related Servicer (to the extent provided in the Servicing Agreement) shall
deposit the amount of any such loss in the Protected Account within two Business
Days of receipt of notification of such loss but not later than the second
Business Day prior to the Distribution Date on which the moneys so invested are
required to be distributed to the Certificateholders.
Section 3.07 Collection of Mortgage Loan Payments; Collection
Account; Distribution Account. (a) The Master Servicer shall enforce the
obligation of the Servicers to collect all payments called for under the terms
and provisions of the Mortgage Loans to the extent such procedures shall be
consistent with the applicable Servicing Agreement and the terms and provisions
of any related Required Insurance Policy.
(b) The Master Servicer shall establish and maintain a Collection
Account, which may be deemed to be a sub-account of the Distribution Account,
into which the Master Servicer shall deposit or cause to be deposited within two
Business Days of receipt, except as otherwise specifically provided herein, the
following payments and collections remitted by the Servicers, or received by it
in respect of Mortgage Loans subsequent to the Cut-off Date (other than in
respect of principal and interest due on the Mortgage Loans on or before the
Cut-off Date) and the following amounts required to be deposited hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Servicing Fee;
(iii) all Liquidation Proceeds (including Insurance Proceeds), other
than proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the applicable
Servicer's or Master Servicer's normal servicing procedures, and all
Recoveries;
(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) and 3.15(d), and in respect of net monthly
rental income from REO Property pursuant to Section 3.15 hereof;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to Section
4.01;
(viii) any Class P Prepayment Charges;
(ix) any Compensating Interest payments;
(x) any amounts deposited by the Master Servicer in connection with
a deductible clause in any blanket hazard insurance policy in respect of
the Mortgage Loans in such Loan Group;
(xi) all proceeds of a primary mortgage guaranty insurance policy in
respect of the Mortgage Loans in such Loan Group;
(xii) the Initial Depositor Required Deposit; and
(xiii) any other amounts required to be deposited hereunder.
In the event that the Master Servicer shall deposit into the Collection Account
any amount not required to be deposited, it may at any time withdraw such amount
from the Collection Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds deposited in
the Collection Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.10.
(c) [Reserved].
(d) The Trust Administrator shall establish and maintain, on behalf
of the Certificateholders, the Distribution Account. The Trust Administrator
shall, promptly upon receipt but no later than on the Distribution Account
Deposit Date, deposit in the Distribution Account and retain therein the
following:
(i) the aggregate amount remitted by the Master Servicer to the
Trust Administrator pursuant to Section 3.10(a)(ix)(A);
(ii) any amount deposited by the Master Servicer pursuant to Section
3.07(e) in connection with any losses on Permitted Investments;
(iii) any WMMSC Monthly Remittance Amount received by the Trust
Administrator from WMMSC; and
(iv) 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 Trust Administrator in writing to
withdraw such amount from the Distribution Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering an
Officer's Certificate to the Trust Administrator which describes the amounts
deposited in error in the Distribution Account. All funds deposited in the
Distribution Account shall be held by the Trust Administrator in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.10(b). Funds deposited in the
Distribution Account in respect of the Class P Prepayment Charges shall not be
treated as assets of any Trust REMIC, but shall be treated as assets of a
separate sub-account of the Distribution Account which shall be an asset of the
Grantor Trust for the benefit of the Class P Certificates. In no event shall the
Trust Administrator 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, or is the custodian for, such
account, then such Permitted Investment shall mature not later than such
Distribution Account Deposit Date). The Trust Administrator shall, with respect
to funds other than the WMMSC Monthly Remittance Amount, as directed in writing
by the Master Servicer, and with respect to the WMMSC Monthly Remittance Amount,
as directed in writing by WMMSC, either (i) hold funds on deposit in the
Distribution Account uninvested in a trust or deposit account of the Trust
Administrator with no liability for interest or other compensation thereon,
except as otherwise agreed in writing with the Master Servicer or WMMSC, as
applicable, or (ii) invest funds on deposit in the Distribution Account in
Permitted Investments as directed by the Master Servicer or WMMSC, as
applicable, which Permitted Investments shall mature not later than the Business
Day next preceding the Distribution Date (except that if such Permitted
Investment is an obligation of or is managed by the institution that maintains
such fund or account, then such Permitted Investment shall mature not later than
such Distribution Date). Permitted Investments in respect of the Collection
Account or the Distribution Account shall not be sold or disposed of prior to
their maturity. All such Permitted Investments shall be made in the name of the
Trustee, for the benefit of the Certificateholders. All income and gain net of
any losses realized from any such investment of funds on deposit in the
Collection Account shall be for the benefit of the Master Servicer as master
servicing compensation and shall be remitted to it monthly as provided herein.
The amount of any realized losses in the Collection Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
Master Servicer (from its own funds without any right of reimbursement) in the
Collection Account or paid to the Trustee by wire transfer of immediately
available funds for deposit into the Distribution Account. All income and gain
(net of any losses realized from any such investment of funds on deposit in the
Distribution Account and net of any WMMSC Investment Earnings Amount) shall be
for the benefit of the Master Servicer as additional compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses in
the Distribution Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Master Servicer or WMMSC, as
applicable, in the Distribution Account. The Trust Administrator 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
Trust Administrator is the obligor and has defaulted thereon) or the
Distribution Account and made in accordance with this Section 3.07. In the
absence of written instructions by (i) the Master Servicer, with respect to
funds other than any WMMSC Monthly Remittance Amount, or (ii) WMMSC, with
respect to any WMMSC Monthly Remittance Amount, to invest funds held in the
Collection Account or Distribution Account, all funds on deposit therein shall
remain uninvested.
(f) The Master Servicer shall give notice to the Trustee, the Trust
Administrator, each Rating Agency and the Depositor of any proposed change of
the location of the Collection Account prior to any change thereof. The Trust
Administrator shall give notice to the Trustee, 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.
(g) Each of the Collection Account and Distribution Account shall at
all times be an Eligible Account, provided, that the Collection Account may be
deemed to be a sub-account of the Distribution Account. If at any time either
the Collection Account or the Distribution Account ceases to be an Eligible
Account, the Master Servicer, the Trustee or the Trust Administrator, as
applicable, shall immediately establish and maintain a new Collection Account or
Distribution Account, as applicable, that is an Eligible Account, and shall
immediately transfer all funds on deposit in the former Collection Account or
Distribution Account, as applicable, to the new Collection Account or
Distribution Account, as applicable.
Section 3.08 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. To the extent required by the related Servicing Agreement and
by the related Mortgage Note and not violative of current law, the Master
Servicer shall require each Servicer to establish and maintain one or more
accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by such Servicer) for the payment
of taxes, assessments, hazard insurance premiums or comparable items for the
account of the Mortgagors. Nothing herein shall require the Master Servicer to
compel a Servicer to establish an Escrow Account in violation of applicable law.
Section 3.09 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Master Servicer and the Custodian shall afford
and the Master Servicer shall require the Servicers to afford the Depositor, the
Trustee and the Trust Administrator and their respective agents or
representatives reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement or the Servicing Agreement, such access being
afforded without charge, but only upon reasonable request and during normal
business hours at the office designated by the Master Servicer, the applicable
Servicer or the Custodian to the extent set forth in the applicable Servicing
Agreement.
Upon reasonable advance notice in writing, the Master Servicer and
the Custodian will provide or the Master Servicer shall require the Servicers,
to the extent set forth in the applicable Servicing Agreement, to provide to
each Certificateholder which is a savings and loan association, bank or
insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit such
Certificateholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates; provided,
that the Master Servicer, the applicable Servicer or the Custodian shall be
entitled to be reimbursed by each such Certificateholder for actual expenses
incurred by the Master Servicer, the applicable Servicer or the Custodian in
providing such reports and access.
Section 3.10 Permitted Withdrawals from the Collection Account and
Distribution Account. (a) The Master Servicer may from time to time make
withdrawals from the Collection Account for the following purposes:
(i) to pay to the Servicers (to the extent not previously retained
by them), the servicing compensation to which they are entitled pursuant
to the applicable Servicing Agreements, and to pay to the Master Servicer,
earnings on or investment income with respect to funds in or credited to
the Collection Account;
(ii) to reimburse each of the Servicers or the Master Servicer for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this sub-clause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made;
(iii) to reimburse the Servicers or the Master Servicer for any
Nonrecoverable Advance previously made;
(iv) to reimburse the Servicers or the Master Servicer for Insured
Expenses from the related Insurance Proceeds;
(v) to reimburse the Servicers or the Master Servicer for (a)
unreimbursed Servicing Advances, the Servicers' or the Master Servicer's
right to reimbursement pursuant to this clause (a) with respect to any
Mortgage Loan being limited to amounts received on such Mortgage Loan(s)
which represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01 or Section 4.01 and (b) for unpaid
Servicing Fees as provided in Section 3.15 hereof;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02 or 2.03, all amounts received thereon after the date of such
purchase;
(vii) to reimburse the Transferor, the Master Servicer or the
Depositor for expenses or indemnities incurred by any of them and
reimbursable pursuant to Section 6.03 hereof;
(viii) to withdraw any amount deposited in the Collection Account
and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to (A)
withdraw (i) an amount equal to the related Group 1 Available Funds, Group
2 Available Funds and Group 3 Available Funds for such Distribution Date
and (ii) on or after the Cross-Over Date only, any Recoveries received
during the related Prepayment Period, and remit by wire transfer of
immediately available funds such amounts to the Trust Administrator for
deposit in the Distribution Account and (B) withdraw any Class P
Prepayment Charges received and remit by wire transfer of immediately
available funds such amounts to the Trust Administrator for deposit into
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 10.01 hereof.
The Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account pursuant to such sub-clauses (i), (ii), (iv), (v) and
(vi). Prior to making any withdrawal from the Collection Account pursuant to
sub-clause (iii), the Master Servicer shall deliver to the Trust Administrator
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 Trust Administrator shall withdraw funds from the
Distribution Account for distributions to Certificateholders, in the manner
specified in this Agreement (and 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 Trust Administrator may from time
to time make withdrawals from the Distribution Account for the following
purposes:
(i) to pay to the Master Servicer earnings on or investment income,
if any, and to WMMSC any WMMSC Investment Earnings Amount, if any, with
respect to funds in or credited to the Distribution Account;
(ii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein in accordance with Section 3.07(d);
(iii) to withdraw any indemnity, expense or other reimbursement owed
to it or the Trustee pursuant to this Agreement, including, without
limitation, Section 3.05, Section 7.02, Section 8.05 and Section 9.05; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 10.01 hereof.
Section 3.11 Maintenance of Hazard Insurance. (a) For each Mortgage
Loan, the Master Servicer shall enforce any obligation of the Servicers under
the related Servicing Agreements to maintain or cause to be maintained standard
fire and casualty insurance and, where applicable, flood insurance, all in
accordance with the provisions of the related Servicing Agreements. It is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the applicable Servicing Agreement and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall at
any time be in force and as shall require such additional insurance.
(b) Pursuant to Sections 3.07 and 3.08, any amounts collected by the
Master Servicer, or by any Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Collection Account,
subject to withdrawal pursuant to Sections 3.07 and 3.08. Any cost incurred by
the Master Servicer or any Servicer in maintaining any such insurance if the
Mortgagor defaults in its obligation to do so shall be added to the amount owing
under the Mortgage Loan where the terms of the Mortgage Loan so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.07 and 3.08.
Section 3.12 Presentment of Claims and Collection of Proceeds. The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured's claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to a Servicer and remitted to the Master Servicer) in respect of such policies,
bonds or contracts shall be promptly deposited in the Collection Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.13 Maintenance of the Primary Insurance Policies. (a) The
Master Servicer shall not take, or permit any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. The Master Servicer shall use its
best reasonable efforts to cause each Servicer (to the extent required under the
related Servicing Agreement) to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
The Master Servicer shall not, and shall not permit any Servicer (to the extent
required under the related Servicing Agreement) to, cancel or refuse to renew
any such Primary Insurance Policy that is in effect at the date of the initial
issuance of the Mortgage Note and is required to be kept in force hereunder
except in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
(to the extent required under the related Servicing Agreement) to present, on
behalf of the Trustee and the Certificateholders, claims to the insurer under
any Primary Insurance Policies and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Sections 3.07 and
3.08, any amounts collected by the Master Servicer or any Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Collection
Account, subject to withdrawal pursuant to Sections 3.07 and 3.08.
Section 3.14 Realization upon Defaulted Mortgage Loans. The Master
Servicer shall cause each Servicer (to the extent required under the related
Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement.
Section 3.15 REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any related Mortgage Loan, the deed
or certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the related Certificateholders. The Master Servicer shall, to the
extent provided in the applicable Servicing Agreement, cause the applicable
Servicer to sell any REO Property as expeditiously as possible and in accordance
with the provisions of this Agreement and the related Servicing Agreement, as
applicable. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall cause the applicable Servicer to protect and conserve such REO
Property in the manner and to the extent required by the applicable Servicing
Agreement, subject to the REMIC Provisions.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed 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
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 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
obligors 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 provision thereto) necessary to assure that no withholding tax
obligation arises with respect to the proceeds of such foreclosure except to the
extent, if any, that proceeds of such foreclosure are required to be remitted to
the obligors on such Mortgage Loan.
Section 3.16 Due-on-Sale Clauses; Assumption Agreements. To the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 3.17 Trustee to Cooperate; Release of Mortgage Files. Upon
(i) the payment in full of any Mortgage Loan, or (ii) the receipt by the Master
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes or otherwise in connection with the servicing of any
Mortgage Loan, the Master Servicer shall, upon receipt of notification from the
related Servicer pursuant to the applicable Servicing Agreement, which
notification shall state that such payment in full has been deposited in the
Collection Account or has otherwise been escrowed in a manner customary for such
purposes, instruct the Custodian to, and the Custodian shall release the related
Mortgage File to the related Servicer. Upon notification, the Trustee shall at
the Custodian's direction execute and deliver to the Custodian the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage in each case provided by the
Custodian, together with the Mortgage Note with written evidence of cancellation
thereon. Expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be chargeable to the related Mortgagor.
If the Master Servicer or any related Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement or the Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
Section 3.18 Documents, Records and Funds in Possession of Master
Servicer and the Custodian to Be Held for the Trustee. Notwithstanding any other
provisions of this Agreement, the Master Servicer shall forward to the Custodian
with an instruction to, and the Custodian shall, place within the Mortgage File
and the Master Servicer shall cause each Servicer to transmit to the Custodian
as required by this Agreement and the related Servicing Agreement all documents
and instruments in respect of a Mortgage Loan coming into the possession of the
Master Servicer or related Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or related Servicer or
which otherwise are collected by the Master Servicer or related Servicer as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, the related Servicer or the Custodian in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including but not limited to, any funds on deposit
in the Collection Account or any Protected Account, shall be held by the Master
Servicer, the related Servicer or the Custodian for and on behalf of the Trustee
and shall be and remain the sole and exclusive property of the Trust, subject to
the applicable provisions of this Agreement and the related Servicing Agreement.
Each of the Master Servicer and the Custodian 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 the Master Servicing
Compensation. The Trust Administrator will remit to the Master Servicer all
investment income earned on amounts held in the Distribution Account, net of the
WMMSC Investment Earnings Amount, if any, which the Trust Administrator shall
remit directly to WMMSC.
Section 3.20 Access to Certain Documentation. The Master Servicer
and the Custodian shall provide and the Master Servicer shall cause each
Servicer to provide in accordance with the related Servicing Agreement to the
OTS and the FDIC and to comparable regulatory authorities supervising Holders of
Subordinate Certificates and the examiners and supervisory agents of the OTS,
the FDIC and such other authorities, access to the documentation regarding the
Mortgage Loans required by applicable regulations of the OTS and the FDIC. Such
access shall be afforded without charge, but only upon reasonable and prior
written request and during normal business hours at the offices designated by
the Master Servicer, the Custodian and the related Servicer. Nothing in this
Section shall limit the obligation of the Master Servicer, the Custodian and the
related Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of the Master Servicer, the
Custodian or the related Servicer to provide access as provided in this Section
as a result of such obligation shall not constitute a breach of this Section. In
fulfilling such requests, the Master Servicer and the Custodian shall not be
responsible to determine the sufficiency of such information.
Section 3.21 Annual Statement as to Compliance. The Master Servicer
shall deliver to the Depositor, each Rating Agency, the Trust Administrator and
the Trustee on or before March 15th of each year, commencing with March 15,
2005, 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, 2005, if the Master Servicer in its capacity as Master
Servicer has, during the course of any fiscal year, directly serviced any
Mortgage Loan, then at its expense it shall cause a nationally or regionally
recognized firm of independent public accountants (which may also render other
services to the Master Servicer, the Depositor, the Trust Administrator, 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, the Trust
Administrator 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,
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 requires it to report. Copies of such statement shall be provided by the
Trust Administrator to any Certificateholder upon request at the Master
Servicer's expense, provided such statement is delivered by the Master Servicer
to the Trust Administrator.
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
Distribution Account not later than the Distribution Account Deposit Date
immediately preceding the related Distribution Date an Advance in an amount
equal to the difference between (x) with respect to each Scheduled Payment due
on a Mortgage Loan that is delinquent (other than as a result of a Relief Act
Reduction) and for which the related Servicer was required to make an Advance
pursuant to the related Servicing Agreement and (y) amounts deposited in the
Collection Account (or, in the case of WMMSC, amounts deposited in the
Distribution Account) to be used for Advances with respect to such Mortgage
Loan, except to the extent the Master Servicer determines any such Advance to be
a Nonrecoverable Advance. Subject to the foregoing, the Master Servicer shall
continue to make such Advances for so long as the related Servicer is required
to do so under the related Servicing Agreement. If applicable, on the
Distribution Account Deposit Date, the Master Servicer shall deliver an
Officer's Certificate to the Trustee and the Trust Administrator stating that
the Master Servicer elects not to make an Advance in a stated amount and
detailing the reason(s) it deems the Advance to be a Nonrecoverable Advance. Any
amounts deposited by the Master Servicer pursuant to this Section 4.01 shall be
net of the Servicing Fee for the related Mortgage Loans.
Section 4.02 Priorities of Distribution on the Certificates. (a) On
each Distribution Date, the Trust Administrator shall withdraw the related Group
Available Funds (to the extent on deposit in the Distribution Account) from the
Distribution Account and, pursuant to the statement prepared by the Master
Servicer as set forth in Section 4.04(a), upon which it may conclusively rely,
apply such funds, first to distributions in respect of the Lower-Tier REMIC
Regular Interests, as provided in Section 4.02(f), and then to distributions on
the Certificates in the following order and priority and, in each case, to the
extent of such Group Available Funds, subject to adjustment in accordance with
Section 4.02(e):
(i) With respect to the Group 1 Certificates from the Group 1
Available Funds; with respect to the Group 2 Certificates from the Group 2
Available Funds; and with respect to the Group 3 Certificates from the
Group 3 Available Funds, as follows:
first, concurrently,
(A) to each Class of Group 1 Certificates, pro rata, an amount
allocable to interest equal to the related Accrued Certificate
Interest;
(B) to each Class of Group 2 Certificates, pro rata, an amount
allocable to interest equal to the related Accrued Certificate
Interest; and
(C) to each Class of Group 3 Certificates, pro rata, an amount
allocable to interest equal to the related Accrued Certificate
Interest;
in each case ((A) through (C) of this paragraph), any shortfall shall be
allocated among such Classes in proportion to the amount of the Accrued
Certificate Interest that would have been distributed in the absence of
such shortfall; and
second, concurrently,
(A) to the extent of remaining Group 1 Available Funds, first,
to the Class A-LR and Class A-R Certificates, pro rata, and second,
to the Class 1-A-1 Certificates, up to the amount of the Senior
Optimal Principal Amount for Loan Group 1 for such Distribution
Date, until the Class Principal Balance of each such Class has been
reduced to zero;
(B) to the extent of remaining Group 2 Available Funds, to the
Class 2-A-1 and Class 2-A-2 Certificates, pro rata, up to the amount
of the Senior Optimal Principal Amount for Loan Group 2 for such
Distribution Date, until the Class Principal Balance of each such
Class has been reduced to zero; and
(C) to the extent of remaining Group 3 Available Funds, to the
Class 3-A-1 and Class 3-A-2 Certificates, pro rata, up to the amount
of the Senior Optimal Principal Amount for Loan Group 3 for such
Distribution Date, until the Class Principal Balance of each such
Class has been reduced to zero;
(ii) to the Subordinate Certificates, subject to Section 4.02(e), in
the following order of priority:
(A) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-1 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-1 Certificates
for that Distribution Date and (2) the Class B-1 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(B) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-2 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-2 Certificates
for that Distribution Date and (2) the Class B-2 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(C) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-3 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-3 Certificates
for that Distribution Date and (2) the Class B-3 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(D) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-4 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-4 Certificates
for that Distribution Date and (2) the Class B-4 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(E) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-5 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-5 Certificates
for that Distribution Date and (2) the Class B-5 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(F) from the remaining Available Funds for all Loan Groups in
the aggregate, to the Class B-6 Certificates in the following order:
(1) the Accrued Certificate Interest on the Class B-6 Certificates
for that Distribution Date and (2) the Class B-6 Certificates'
Allocable Share for that Distribution Date until the Class Principal
Balance is reduced to zero;
(G) to the Class A-LR Certificates any remaining portion
(which is expected to be zero) of the Available Funds in the
Lower-Tier REMIC for that Distribution Date; and
(H) to the Class A-R Certificates any remaining portion (which
is expected to be zero) of the Available Funds in the Upper-Tier
REMIC for that Distribution Date.
Pro rata distributions of interest among Classes of Certificates are required to
be made in proportion to the then-current amount of interest to which the
applicable Classes are entitled. Pro rata distributions of principal among
Classes of Certificates are required to be made in proportion to the then
current Certificate Principal Balance of the applicable Classes.
(b) On each Distribution Date, all Class P Prepayment Charges
remitted to the Trust during the related Prepayment Period shall be distributed
by the Trust Administrator to the Holders of the Class P Certificates.
(c) On each Distribution Date, the amount referred to in clause (i)
of the definition of Accrued Certificate Interest for each Class of Senior
Certificates and Subordinate Certificates for such Distribution Date shall be
reduced by (i) the related Class' Pro Rata Share of Net Prepayment Interest
Shortfalls with respect to the Mortgage Loans in the related Loan Group or Loan
Groups, based on such Class' Accrued Certificate Interest for such Distribution
Date without taking into account such Net Prepayment Interest Shortfalls and
(ii) the related Class' Pro Rata Share of (A) after the related Special Hazard
Coverage Termination Date, with respect to each Mortgage Loan in the related
Loan Group or Loan Groups, that became a Special Hazard Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the excess of one
month's interest at the related Net Mortgage Rate on the Scheduled Principal
Balance of such Mortgage Loan as of the Due Date in such month over the amount
of Liquidation Proceeds applied as interest on such Mortgage Loan with respect
to such month, (B) after the Bankruptcy Coverage Termination Date, with respect
to each Mortgage Loan in the related Loan Group or Loan Groups that became
subject to a Bankruptcy Loss during the calendar month preceding the month of
such Distribution Date, the interest portion of the related Deficient Valuation,
(C) each Relief Act Reduction incurred on a Mortgage Loan in the related Loan
Group or Loan Groups, during the calendar month preceding the month of such
Distribution Date and (D) after the Fraud Loss Coverage Termination Date with
respect to each Mortgage Loan in the related Loan Group or Loan Groups that
became a Fraud Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the related Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan as of the
Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month.
(d) Notwithstanding the priority and allocation contained in Section
4.02(a)(ii)(A) through (F), if with respect to any Class of Subordinate
Certificates on any Distribution Date, (I) such Class has not satisfied the
related Class Prepayment Distribution Trigger, no distribution of amounts
pursuant to clauses (ii) and (iii) of the definition of Subordinate Optimal
Principal Amount will be made to any such Classes (the "Restricted Classes") and
the amount of such amounts pursuant to clauses (ii) and (iii) of the definition
of Subordinate Optimal Principal Amount otherwise distributable to the
Restricted Classes shall be distributed to any Classes of Subordinate
Certificates, that are not Restricted Classes, having lower numerical Class
designations than such Class, pro rata, based on their respective Class
Principal Balances immediately prior to such Distribution Date and shall be
distributed in the sequential order provided in Section 4.02(a)(ii)(A) through
(F); provided, however, that, if all of the Subordinate Certificates are
Restricted Classes, then such amounts shall be distributed to the most senior
Class of such Subordinate Certificates outstanding and (II) such Class has not
satisfied the Subordinate Certificates Fractional Interest Test, the Classes of
Subordinate Certificates that have higher numerical designations shall receive,
in respect of clauses (ii) and (iii) of the definition of Subordinate Optimal
Principal Amount, an amount equal to the product of (i) their pro rata shares
(based on the Certificate Principal Balances of all Subordinate Certificates
that are entitled to receive principal distributions on such date) and (ii) the
percentages set forth in the following table:
Distribution Date occurring in Percentage
----------------------------------------- ----------
October 2004 through September 2011...... 0%
October 2011 through September 2012...... 30%
October 2012 through September 2013...... 40%
October 2013 through September 2014...... 60%
October 2014 through September 2015...... 80%
After September 2015..................... 100%
Each Class of Subordinate Certificates that received a full pro rata
share as described above shall be allocated any remaining amount in respect of
clauses (ii) and (iii) of the definition of Subordinate Optimal Principal
Amount, pro rata (based on the Certificate Principal Balances of only those
Subordinate Certificates that received a full pro rata share). The calculation
of any amount to be distributed under this Section 4.02(d) shall be made by the
Master Servicer.
(e) On each Distribution Date, after application of Group Available
Funds for each Loan Group in accordance with Section 4.02(a)(i), the Trust
Administrator shall effect cross-collateralization among the Certificate Groups
as follows:
(i) To the extent any Accrued Certificate Interest with respect to
any Class or Classes of Senior Certificates remains unpaid after
application of Group 1 Available Funds, Group 2 Available Funds and Group
3 Available Funds in accordance with Section 4.02(a)(i), Available Funds
remaining from all Loan Groups after payments on the Senior Certificates
in the related Certificate Groups shall be applied to cover such unpaid
Accrued Certificate Interest, and shall be applied pro rata based on the
amounts of such unpaid Accrued Certificate Interest to the extent there
are insufficient funds to pay such amounts in full. Such amounts shall
otherwise be paid to the Senior Certificates in accordance with the
priorities set forth in Section 4.02(a)(i).
(ii) If on any Distribution Date, one or more of the Certificate
Groups is an Undercollateralized Group, the available Subordinate
Principal Distribution Amount (after giving effect to amounts required to
be paid in sub-clause (i) above) shall be paid to the Senior Certificates
of each such Undercollateralized Group as principal in accordance with the
priorities set forth in Section 4.02(a)(i) until the aggregate Class
Principal Balance of the Senior Certificates of each such
Undercollateralized Group(s) equals the Pool Balance of the related Loan
Group. If more than one such Certificate Group is an Undercollateralized
Group, the available Subordinate Principal Distribution Amount shall be
distributed between such Undercollateralized Groups pro rata according to
the Pool Principal Balance of the related Loan Group. Any application of
the Subordinate Principal Distribution Amount for the Subordinate
Certificates pursuant to this paragraph (ii) will reduce distributions of
such amount to the Subordinate Certificates in reverse order of priority
pursuant to the priorities set forth in Section 4.02(a)(ii)(A) through
(F).
(iii) On or after the date on which the Class Principal Balances of
all of the Senior Certificates in any of the Certificate Groups have been
reduced to zero, amounts otherwise distributable as principal on the
Subordinate Certificates, up to the applicable Apportioned Subordinate
Principal Distribution Amount, shall be paid pro rata as principal to the
remaining Senior Certificates of such other Certificate Group or
Certificate Groups in accordance with the priorities set forth in Section
4.02(a)(i), provided that on such Distribution Date (a) the Aggregate
Subordinate Percentage for such Distribution Date is less than twice the
initial Aggregate Subordinate Percentage or (b) the average outstanding
principal balance of the Mortgage Loans in any Loan Group delinquent 60
days or more over the last six months (including delinquent Mortgage Loans
in bankruptcy, and all Mortgage Loans in foreclosure and REO Properties)
as a percentage of the related Group Subordinate Amount is greater than or
equal to 50%. Any application of the applicable Apportioned Subordinate
Principal Distribution Amount to the Senior Certificates, pursuant to this
paragraph will reduce distributions of the Subordinate Principal
Distribution Amount for the Subordinate Certificates, pro rata, based on
Class Principal Balances of the Subordinate Certificates.
(f) On each Distribution Date, prior to distributions on the
Certificates as provided in Section 4.02(a)-(e), (i) Group 1 Available Funds
(other than amounts paid to the Class A-LR Certificates pursuant to Section
4.02(a)(i)) shall be deemed distributed to the Class L-1B Interest and Class
L-1Q Interest, (ii) Group 2 Available Funds shall be deemed distributed to the
Class L-2B Interest and Class L-2Q Interest and (iii) Group 3 Available Funds
shall be deemed distributed to the Class L-3B Interest and Class L-3Q Interest,
in each case, with respect to interest, at the related pass through rate
described in Section 2.06, and with respect to principal in the amounts
described in this Section 4.02(f).
Distributions of principal shall be made, and Realized Losses, Fraud
Losses, Bankruptcy Losses, Special Hazard Losses, Deficient Valuations and
Excess Losses shall be allocated:
(i) first, to the Class L-1B Interest, Class L-2B Interest and Class
L-3B Interest each from the Related Loan Group, so that their respective
principal balances (computed to at least eight decimal places) are equal
to (A) 0.10% of the Group 0 Xxxxxxxxxxx Xxxxxx, (X) 0.10% of the Group 2
Subordinate Amount and (C) 0.10% of the Group 3 Subordinate Amount,
respectively (except that if any such amount is a larger number than in
the preceding distribution period, the least amount of principal shall be
distributed or losses shall be allocated to the Class L-1B Interest, Class
L-2B Interest or Class L-3B Interest, as applicable, such that the
Lower-Tier Subordinated Balance Ratio is maintained); and
(ii) second, any remaining amounts of principal shall be distributed
and losses shall be allocated from the Related Loan Group, to the Class
L-1Q Interest, Class L-2Q Interest and Class L-3Q Interest, respectively.
(g) Any Fair Market Value Excess collected in connection with a
termination of the Trust Fund pursuant to Section 10.01 shall be distributed to
the Holders of the Class A-LR Certificates.
Section 4.03 Allocation of Realized Losses. (a) On or prior to each
Distribution Date, the Master Servicer shall determine the total amount of
Realized Losses, including Excess Losses and the allocation of such total amount
as set forth below. Realized Losses occurring on the Mortgage Loans shall be
allocated as follows:
(i) (A) any Realized Loss (other than an Excess Loss) shall be
allocated first to the Subordinate Certificates in reverse order of their
respective numerical Class designations (beginning with the Class of
Subordinate Certificates then outstanding with the highest numerical Class
designation) until the respective Class Principal Balance of each such
Class is reduced to zero and second (1) with respect to such losses
occurring with respect to Group 1 Mortgage Loans, to the Classes of Group
1 Certificates, pro rata on the basis of their respective Class Principal
Balances immediately prior to the related Distribution Date until the
Class Principal Balance of each such Class has been reduced to zero; (2)
with respect to such losses occurring with respect to Group 2 Mortgage
Loans, to the Classes of Group 2 Certificates, pro rata, on the basis of
their respective Class Principal Balances immediately prior to the related
Distribution Date until the Class Principal Balance of each such Class has
been reduced to zero; provided, however, that on or after the Cross-Over
Date, the losses allocable to the Class 2-A-1 Certificates under this
paragraph will instead be allocated to the Class 2-A-2 Certificates (in
addition to other losses borne by such Certificates) until the Class
Principal Balance of the Class 2-A-2 Certificates has been reduced to
zero; and (3) with respect to such losses occurring with respect to Group
3 Mortgage Loans, to the Classes of Group 3 Certificates, pro rata, on the
basis of their respective Class Principal Balances immediately prior to
the related Distribution Date until the Class Principal Balance of each
such Class has been reduced to zero; provided, however, that on or after
the Cross-Over Date, the losses allocable to the Class 3-A-1 Certificates
under this paragraph will instead be allocated to the Class 3-A-2
Certificates (in addition to other losses borne by such Certificates)
until the Class Principal Balance of the Class 3-A-2 Certificates has been
reduced to zero.
(B) any Excess Losses occurring on the Mortgage Loans shall be
allocated among (1) the Group 1 Certificates, in the case of an
Excess Loss on a Group 1 Mortgage Loan, the Group 2 Certificates, in
the case of an Excess Loss on a Group 2 Mortgage Loan and the Group
3 Certificates, in the case of an Excess Loss on a Group 3 Mortgage
Loan and (2) each Class of Subordinate Certificates, pro rata, based
upon their respective Class Principal Balances (or, in the case of
such Subordinate Certificates in the aggregate, the Group
Subordinate Amount for the Loan Group which incurred the Excess
Loss, the aggregate amount so allocated to the Subordinate
Certificates then to be allocated among such Subordinate
Certificates, pro rata, based on their respective Class Principal
Balances) after giving effect to distributions of principal on such
Distribution Date.
(b) The Class Principal Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class designation shall
be reduced on each Distribution Date by the amount, if any, by which the
aggregate of the Class Principal Balances of all outstanding Classes of
Certificates (after giving effect to the distribution of principal and the
allocation of Realized Losses on such Distribution Date) exceeds the Pool
Principal Balance for the following Distribution Date.
(c) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Principal Balance of a Certificate, pursuant to
Section 4.03(a) above shall be accomplished by reducing the Certificate
Principal Balance thereof, as applicable, immediately following the
distributions made on the related Distribution Date in accordance with the
definition of "Certificate Principal Balance" herein; provided that no Realized
Loss shall be allocated to reduce the Certificate Principal Balance of a
Certificate to the extent that such allocation would reduce the aggregate
Certificate Principal Balance of all of the Certificates to an amount less than
the Pool Principal Balance for the following Distribution Date of all
outstanding Mortgage Loans in the aggregate, less any related Deficiency
Valuations occurring before the related Bankruptcy Loss Coverage Termination
Date (such limitation, a "Loss Allocation Limitation").
(d) Prior to the Cross-Over Date, with respect to Recoveries
received during a Prepayment Period with respect to any Mortgage Loans, the
Class Principal Balance of one or more Classes of Certificates that have
previously had Realized Losses allocated, will be increased, as follows:
(i) first, up to the amount of the Recoveries with respect to a Loan
Group, the Class Principal Balance of each Class of Senior Certificates of
the Certificate Group corresponding to such Loan Group will be increased,
pro rata, up to the amount of unrecovered Realized Losses previously
allocated to each such Class, if any; and
(ii) second, up to the amount of the Recoveries remaining after
allocation pursuant to the preceding clause (i), the Certificate Principal
Balance of each Class of Subordinate Certificates, in order of seniority,
will be increased, by the amount of unrecovered Realized Losses previously
allocated to each such Class, if any.
(e) Commencing on the Cross-Over Date, the Trust Administrator shall
distribute the amount of any Recovery received during a Prepayment Period, pro
rata, to the Classes of Senior Certificates of the Certificate Group
corresponding to the Loan Group of the Mortgage Loan for which the Recovery was
received; provided, however, that any distribution to a Class of Certificates
pursuant to this Section 4.03(e) shall not reduce the Class Principal Balance of
such Class.
Section 4.04 Distribution Date Statements to Certificateholders. (a)
Not later than two Business Days prior to each Distribution Date, the Master
Servicer shall prepare and make available to the Trust Administrator and not
later than each Distribution Date, the Trust Administrator shall make available
to each Certificateholder, the Depositor, the Trustee 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) and (ii) below, the
amounts shall be expressed as a dollar amount per one thousand):
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments, Class P
Prepayment Charges collected by GMAC, GreenPoint and Xxxxx and remitted to
the Trust and Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any unpaid Class
Interest Shortfall included in such distribution and any remaining unpaid
Class Interest Shortfall after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Certificate Principal Balance as a dollar amount per
minimum denomination Certificate and the Class Principal Balance of each
Class of Certificates, after giving effect to the distribution of
principal on such Distribution Date;
(v) the Group Pool Principal Balance for each Loan Group on such
Distribution Date;
(vi) the Senior Percentage and Subordinate Percentage for each
Certificate Group for the following Distribution Date;
(vii) the aggregate amount of the Servicing Fees with respect to
such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure) (1) 1 to 30 days
(2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days and (B) in
foreclosure and delinquent (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90
days and (4) 91 or more days, as of the close of business on the last day
of the calendar month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Scheduled
Principal Balance of such Mortgage Loan as of the close of business on the
last Business Day of the calendar month preceding such Distribution Date
and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the calendar month preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage for each applicable
Certificate Group;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month; and
(xv) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as
of the related Determination Date.
(b) The Trust Administrator's responsibility for disbursing the
above information to the Master Servicer, the Trustee, Depositor,
Certificateholders and other interested parties is limited to the availability,
timeliness and the accuracy of the information provided by each Servicer. The
Trust Administrator 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
and other interested parties, and other parties to this Agreement via the Trust
Administrator's internet website, initially located at "xxx.xxxxxxx.xxx."
Assistance in using the Trust Administrator's website can be obtained by calling
the Trust Administrator's customer service desk at (000) 000-0000. Parties that
are unable to use the above distribution method are entitled to have a paper
copy mailed to them via first class mail by calling the Trust Administrator's
customer service desk and indicating such. The Trust Administrator shall have
the right to change the way the Distribution Date Statement is distributed in
order to make such distribution more convenient and more accessible and the
Trust Administrator shall provide timely and adequate notification to the
Certificateholders and the parties to this Agreement regarding any such changes.
The Trust Administrator shall also be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto). As a
condition to access the Trust Administrator's internet website, the Trust
Administrator may require registration and the acceptance of a disclaimer. The
Trust Administrator shall 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 Trust Administrator 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)(iv) 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 Trust Administrator shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Trust Administrator pursuant to any requirements of the Code as from time to
time in effect.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto in Exhibits A, B, C and E. 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 10.02 hereof respecting the final distribution on
the Certificates, on each Distribution Date the Trust Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Holder has so notified the Trust Administrator in writing at least five
Business Days prior to the related Record Date or (y) by check mailed by first
class mail to such Certificateholder at the address of such Holder appearing in
the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trust Administrator 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 Trust
Administrator shall bind the Trust Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificate. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless authenticated by the
Trust Administrator by manual signature, and such authentication upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their authentication. On the Closing Date, the Trust
Administrator shall authenticate the Certificates to be issued at the direction
of the Depositor, or any affiliate thereof. The Depositor shall provide, or
cause to be provided, to the Trust Administrator 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 Trust Administrator shall maintain, or cause
to be maintained in accordance with the provisions of this Section 5.02 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 Trust Administrator 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 Trust
Administrator 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 Trust Administrator.
Whenever any Certificates are so surrendered for exchange, the Trust
Administrator 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 Trust Administrator duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required by the
Trust Administrator.
All Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Trust Administrator
in accordance with the Trust Administrator'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 Trust Administrator 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 Trust
Administrator at the expense of the transferor an Opinion of Counsel addressed
to the Trust Administrator 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, the Trust
Administrator and the Master Servicer shall cooperate with the Depositor, in
accordance with the Depositor's request, in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Depositor, to
the extent in its possession, such information regarding the Certificates, the
Mortgage Loans and other matters regarding the Trust Fund as the Depositor shall
reasonably request to meet its obligation under the preceding sentence. Each
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee, the Trust Administrator, 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 Trust
Administrator shall have received either (i) a representation letter from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trust Administrator (in the event such Certificate is a
Private Certificate, such requirement is satisfied only by the Trust
Administrator'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 Title I 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, which representation
letter shall not be an expense of the Trustee, the Trust Administrator, the
Depositor, the Transferor, the Master Servicer or the Trust Fund, (ii) in the
case of an ERISA-Restricted Certificate other than a Class P Certificate or 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 Sections I and III of PTCE 95-60 or (iii) in the case of any
ERISA-Restricted Certificate other than a Class P Certificate or 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 Trust Administrator, which
Opinion of Counsel shall not be an expense of the Trustee, the Trust
Administrator, the Depositor, the Transferor, the Master Servicer or the Trust
Fund, addressed to the Trust Administrator and the Trustee to the effect that
the purchase or holding of such ERISA-Restricted Certificate will not constitute
or result in a non-exempt prohibited transaction within the meaning of ERISA,
Section 4975 of the Code or any Similar Law and will not subject the Trustee,
the Trust Administrator, the Depositor, the Transferor or the Master Servicer to
any obligation in addition to those expressly undertaken in this Agreement or to
any liability under ERISA, Section 4975 of the Code or any Similar Law. 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 Trust Administrator 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 Class P Certificate or 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 Trust Administrator of an Opinion of Counsel satisfactory to the
Trust Administrator as described above shall be void and of no effect and (b)
any purported transfer of a Class P Certificate or 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 Trust Administrator 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 Trust Administrator in accordance with the
foregoing requirements.
Neither the Trust Administrator nor the Master Servicer shall be
required to monitor, determine or inquire as to the compliance with the transfer
restrictions with respect to any ERISA Restricted Certificate that is a
Book-Entry Certificate, and neither the Trust Administrator nor the Master
Servicer shall have any liability for transfers of any such Book-Entry
Certificates made through the book-entry facilities of any Depository or between
or among Depository Participants or Certificate Owners made in violation of the
transfer restrictions set forth herein.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trust Administrator 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 Trust
Administrator shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trust Administrator under subparagraph (b) above, the Trust Administrator
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 Trust Administrator 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
Trust Administrator 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 Trust Administrator shall be paid and delivered by the
Trust Administrator 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 Trust Administrator, 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 Trust Administrator of an Opinion of Counsel
addressed to the Trust Administrator, the Trustee and the Master Servicer, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Trust Administrator, 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 addressed to the Trust Administrator and 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
Trust Administrator 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 Trust
Administrator 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 Trust Administrator may
conclusively 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 Trust
Administrator in writing that the Depository is no longer willing, qualified or
able to properly discharge its responsibilities as Depository, and (ii) the
Depositor is unable to locate a qualified successor, (y) the Depositor notifies
the Trust Administrator and the Depository of its intent to terminate the
book-entry system through the Depository and, upon receipt of notice of such
intent from the Depository, the Depository Participants holding beneficial
interests in the Book-Entry Certificates agree to initiate such termination, or
(z) after the occurrence of a Master Servicer Event of Termination, Certificate
Owners representing at least 51% of the Class Principal Balance of the
Book-Entry Certificates together advise the Trust Administrator 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 and the Depository Participants consent to the
termination, the Trust Administrator, upon receipt of notice of such event,
shall notify all Certificate Owners, through the Depository, of the occurrence
of any such event and of the availability of definitive, fully-registered
Certificates (the "Definitive Certificates") to Certificate Owners requesting
the same. Upon surrender to the Trust Administrator of the related Class of
Certificates by the Depository, accompanied by the instructions from the
Depository for registration, the Trust Administrator shall issue the Definitive
Certificates. None of the Master Servicer, the Depositor nor the Trust
Administrator 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 Trust Administrator 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 Trust
Administrator, to the extent applicable with respect to such Definitive
Certificates and the Trust Administrator shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder; provided that the Trust
Administrator 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 Trust Administrator, or the
Trust Administrator 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 Trust Administrator such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Trust Administrator that such Certificate has been acquired by a bona
fide purchaser, the Trust Administrator shall execute, authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like Class, tenor and Percentage Interest. In
connection with the issuance of any new Certificate under this Section 5.03, the
Trust Administrator 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 Trust Administrator) and
its counsel connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Master Servicer, the
Trustee, the Trust Administrator and any agent of the Master Servicer, the
Trustee or the Trust Administrator may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Master Servicer, the Trustee, the Trust
Administrator nor any agent of the Master Servicer, the Trustee or the Trust
Administrator 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 Trust Administrator, (b) state that such Certificateholders
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Master Servicer shall request such information in writing from the
Trust Administrator, then the Trust Administrator shall, within ten Business
Days after the receipt of such request, provide the Depositor, the Master
Servicer or such Certificateholders at such recipients' expense the most recent
list of the Certificateholders of such Trust Fund held by the Trust
Administrator, if any. The Depositor and every Certificateholder, by receiving
and holding a Certificate, agree that the Trust Administrator 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 of the Trust Administrator. The Trust Administrator will give prompt
written notice to the Certificateholders of any change in such location of any
such office or agency.
ARTICLE VI
THE DEPOSITOR, THE CUSTODIAN AND THE MASTER SERVICER
Section 6.01 Respective Liabilities of the Depositor, the Master
Servicer and the Custodian. The Depositor, the Master Servicer and the Custodian
shall each be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by them
herein.
Section 6.02 Merger or Consolidation of the Depositor, the Master
Servicer and the Custodian. The Depositor, the Master Servicer and the Custodian
will each keep in full effect its existence, rights and franchises as a
corporation or national banking association, as the case may be, under the laws
of the United States or under the laws of one of the states thereof and will
each obtain and preserve its qualification to do business as a foreign
corporation or legal entity, as the case may be, in each jurisdiction in which
such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor, the Master Servicer or the
Custodian may be merged or consolidated, or any Person resulting from any merger
or consolidation to which the Depositor, the Master Servicer or the Custodian
shall be a party, or any person succeeding to the business of the Depositor, the
Master Servicer or the Custodian, shall be the successor of the Depositor, the
Master Servicer or the Custodian, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person to the Master Servicer shall be
qualified to service mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac.
Section 6.03 Limitation on Liability of the Depositor, the
Transferor, the Master Servicer, the Custodian and Others. None of the
Depositor, the Transferor, the Master Servicer, the Custodian or any of the
directors, officers, employees or agents of the Depositor, the Transferor, the
Custodian 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, the Custodian or any such Person against any breach of representations
or warranties made by it herein or protect the Depositor, the Transferor, the
Master Servicer, the Custodian or any such Person from any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Depositor, the Transferor, the Master Servicer, the
Custodian and any Affiliate, director, officer, employee or agent of the
Depositor, the Transferor, the Master Servicer or the Custodian 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 and its
Affiliates, the Transferor, the Master Servicer, the Custodian and any director,
officer, employee or agent of the Depositor or its Affiliates, the Transferor,
the Master Servicer or the Custodian shall be indemnified by the Trust Fund and
held harmless against any loss, liability or expense incurred in connection with
(i) any audit, controversy or judicial proceeding relating to a governmental
taxing authority, (ii) the performance of its duties and obligations and the
exercise of (or failure to exercise) its rights under this Agreement (including,
with respect to the Mortgage Loans or the Certificates), or (iii) any legal
action relating to this Agreement (including, with respect to the Mortgage
Loans) 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, provided that any such loss,
liability or expense constitutes an "unanticipated expense incurred by the
REMIC" within the meaning of the REMIC Provisions. None of the Depositor, the
Transferor, the Master Servicer and the Custodian shall be under any obligation
to appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that any of the Depositor, the
Transferor, the Custodian 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, the Trust Administrator and the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Transferor, the Master Servicer and the Custodian shall be
entitled to be reimbursed therefor out of the Collection Account.
Section 6.04 Limitation on Resignation of Master Servicer. The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except (a) upon appointment of a successor master servicer and receipt by
the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading of the rating of any of the
Certificates, (b) upon determination that its duties hereunder are no longer
permissible under applicable law or (c) pursuant to Section 6.05. Any such
determination under clause (b) permitting the resignation of the Master Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee or a
successor master servicer shall have assumed the Master Servicer's
responsibilities, duties, liabilities and obligations hereunder.
Section 6.05 Sale and Assignment of Master Servicing Rights. The
Master Servicer may sell, assign or delegate its rights, duties and obligations
as Master Servicer under this Agreement in their entirety; provided, however,
that: (i) the purchaser or transferee accepting such sale, assignment and
delegation (a) shall be a Person qualified to service 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 the Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
master servicer under this Agreement from and after the effective date of such
assumption agreement or delegation; (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 or delegation; and (iii) the Master Servicer
shall deliver to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent to such action under this Agreement
have been fulfilled and such action is permitted by and complies with the terms
of this Agreement. No such sale, assignment or delegation shall affect any
liability of the Master Servicer arising prior to the effective date thereof.
Section 6.06 Fees of the Custodian. The Custodian shall be
compensated as separately agreed in writing with the Master Servicer.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Master Servicer Event of
Termination," wherever used herein, means any one of the following events:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure continues unremedied for a period of one
Business Day; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Certificateholders, and such failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure, properly requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee or the Trust Administrator 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 6.05.
In each and every such case, so long as such Master Servicer Event
of Termination with respect to the Master Servicer shall not have been remedied,
the Trustee may, and (i) at the direction of the Holders of Certificates
evidencing Voting Rights aggregating not less than 25% of the Certificates or
(ii) if such Master Servicer Event of Termination is related to a failure by the
Master Servicer to make any Advance required to be made by it pursuant to the
terms of this Agreement, the Trustee shall, in each case, by notice in writing
to the Master Servicer (and to the Trustee if given by such Certificateholders),
with a copy to the Rating Agencies, terminate all of the rights and obligations
(but not the liabilities accruing prior to the date of termination) of the
Master Servicer under this Agreement and in and to the Mortgage Loans and the
REO Property serviced by the Master Servicer and the proceeds thereof. Upon the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates, the Mortgage Loans, the Servicing Agreements, REO Property or
under any other related agreements (but only to the extent that such other
agreements relate to the Mortgage Loans or related REO Property) shall, subject
to Section 7.02, automatically and without further action pass to and be vested
in the Trustee pursuant to this Section 7.01; and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Master Servicer as attorney-in-fact or otherwise, any and all documents and
other instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the Mortgage Files and all other property and amounts which are
then or should be part of the Trust or which thereafter become part of the
Trust; and (ii) originals or copies of all documents of the Master Servicer
reasonably requested by the Trustee to enable it to assume the Master Servicer's
duties thereunder. In addition to any other amounts which are then, or,
notwithstanding the termination of its activities under this Agreement, may
become payable to the Master Servicer under this Agreement, the Master Servicer
shall be entitled to receive, out of any amount received on account of a
Mortgage Loan or related REO Property, that portion of such payments which it
would have received as reimbursement under this Agreement if notice of
termination had not been given. The termination of the rights and obligations of
the Master Servicer shall not affect any obligations incurred by the Master
Servicer prior to such termination.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of any
late collection of a Scheduled Payment on a Mortgage Loan which was due prior to
the notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3.10(a)(i)
through (viii), and (x) and any other amounts payable to such Master Servicer
hereunder the entitlement to which arose prior to the termination of its
activities hereunder.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer receives a notice of termination pursuant to
Section 7.01 hereof, the Trustee shall, subject to and to the extent provided in
Section 3.05, be the successor to the Master Servicer in its capacity as Master
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof and applicable law including the obligation to make
Advances pursuant to Section 4.01. As compensation therefor, the Trustee shall
be entitled to all compensation to which the Master Servicer would have been
entitled hereunder if the Master Servicer had continued to act hereunder.
Notwithstanding the foregoing, if the Trustee has become the successor to the
Master Servicer in accordance with Section 7.01 hereof, the Trustee may, if it
shall be unwilling to so act, or shall, if it is prohibited by applicable law
from making Advances pursuant to Section 4.01 hereof or if it is otherwise
unable to so act, or if it has been requested in writing by Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by the
Certificates to do so, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder. Any successor to the Master Servicer shall be an
institution which is a Xxxxxx Mae and Xxxxxxx Mac approved seller/servicer in
good standing, which has a net worth of at least $15,000,000, and which is
willing to master service the Mortgage Loans and executes and delivers to the
Depositor and the Trustee an agreement accepting such delegation and assignment,
which contains an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer (other than
liabilities of the Master Servicer under Section 6.03 hereof incurred prior to
termination of the Master Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; and provided further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced, 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 enforce the requirement of the Servicers to
maintain in force the policy or policies pursuant to Section 3.11.
The Trustee or successor master servicer shall be entitled to be
reimbursed from the Master Servicer for all costs associated with the transfer
of master servicing from the predecessor master servicer, including, without
limitation, any costs or expenses (including but not limited to personnel time)
associated with the complete transfer of all master servicing data and the
completion, correction or manipulation of such master servicing data as may be
required by the Trustee or successor master servicer to correct any errors or
insufficiencies in the master servicing data or otherwise to enable the Trustee
or successor master servicer to master service the Mortgage Loans properly and
effectively. If the Master Servicer does not pay such reimbursement within
thirty (30) days of its receipt of an invoice therefor, such reimbursement shall
be an expense of the Trust and the Trustee shall be entitled to withdraw such
reimbursement from amounts on deposit in the Distribution Account pursuant to
Section 3.10(b)(iii); provided that the Master Servicer shall reimburse the
Trust for any such expense incurred by the Trust.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Master Servicer, the Trustee
(or the Trust Administrator on its behalf) 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 or the Trust Administrator shall transmit by mail to
all Certificateholders notice of each such Master Servicer Event of Termination
hereunder known to a Responsible Officer of the Trustee or the Trust
Administrator, unless such Master Servicer Event of Termination shall have been
cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE MASTER SERVICER
Section 8.01 Duties of Trustee. The Trustee, prior to the occurrence
of a Master Servicer Event of Termination and after the curing or waiver of all
Master Servicer Events of Termination that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Termination has occurred and
remains uncured or unwaived, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs, but only until such
time as a successor Master Servicer shall have been appointed hereunder.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument. If
any such instrument is found not to conform in any material respect to the
requirements of this Agreement, the Trustee shall notify the Certificateholders
of such non-conforming instrument in the event the Trustee, after so requesting,
does not receive a satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) unless a Master Servicer Event of Termination of which the
Trustee has actual knowledge shall have occurred, and be continuing, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement which it believed in good faith to be genuine and to have
been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be conclusively determined by a court of
competent jurisdiction, that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising or omitting to exercise any trust or power
conferred upon the Trustee under this Agreement;
(iv) the Trustee shall not be accountable, shall have no liability
and makes no representation as to any acts or omissions hereunder of the
Master Servicer until such time as the Trustee may be required to act as
Master Servicer pursuant to Section 7.02 and thereupon only for the acts
or omissions of the Trustee as successor Master Servicer; and
(v) the Trustee shall promptly remit to the Master Servicer any
complaint, claim, demand, notice or other document (collectively, the
"Notices") delivered to the Trustee as a consequence of the assignment of
any Mortgage Loan hereunder and relating to the servicing of the Mortgage
Loans; provided that any such Notice (i) is delivered to the Trustee at
its Corporate Trust Office; and (ii) contains information sufficient to
permit the Trustee to make a determination that the real property to which
such document related is a Mortgaged Property. The Trustee shall have no
duty hereunder with respect to any Notice it may receive or which may be
alleged to have been delivered to or served upon it unless such Notice is
delivered to it or served upon it at its Corporate Trust Office and such
Notice contains the information required pursuant to clause (ii) of the
preceding sentence.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(i) the Trustee may request and conclusively rely upon and shall be
fully protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document 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 thereof, (B) to see to the provisions
of 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. 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 or
the Distribution Account by the Depositor, the Master Servicer or the Trust
Administrator.
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 by the Master Servicer 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, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance of any
of the Trustee's duties hereunder, (ii) incurred in connection with the
performance of any of the Trustee's duties or the exercise of (or failure to
exercise) its rights hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder, (iii) incurred by reason
of any action of the Trustee taken at the direction of the Certificateholders,
(iv) resulting from any error in any tax or information return prepared by the
Master Servicer and (v) arising out of, or in connection with, the provisions
set forth in Section 2.01(e) hereof, including without limitation, all costs,
liabilities and expenses (including reasonable legal fees and expenses) of
investigating and defending itself against any claim, action or proceeding,
pending or threatened, relating to the provisions of such paragraph, provided
that any such loss, liability or expense constitutes an "unanticipated expense
incurred by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee hereunder. Without
limiting the foregoing, and except for any such expense, disbursement or advance
as may arise from the Trustee's negligence, bad faith or willful misconduct, or
which would not be an "unanticipated expense" within the meaning of the second
preceding sentence, the Trustee shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement with respect to: (A)
the reasonable compensation and the expenses and disbursements of its counsel
not associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant, engineer,
appraiser or other agent that is not regularly employed by the Trustee, to the
extent that the Trustee must engage such Persons to perform acts or services
hereunder and (C) printing and engraving expenses in connection with preparing
any Definitive Certificates. The Trust shall fulfill its obligations under this
paragraph from amounts on deposit from time to time in the Distribution Account.
Section 8.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of the United States of America or any state thereof,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating of at least
investment grade. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 8.06, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07 hereof. The entity serving as Trustee may have normal banking and
trust relationships with the Depositor and its affiliates or the Master Servicer
and its affiliates; provided, however, that such entity cannot be an affiliate
of the Master Servicer other than the Trustee in its role as successor to the
Master Servicer.
Section 8.07 Resignation and Removal of Trustee. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor and the Master Servicer and each
Rating Agency not less than 60 days before the date specified in such notice
when, subject to Section 8.08, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 8.08 meeting the
qualifications set forth in Section 8.06. If no successor trustee meeting such
qualifications shall have been so appointed by the Depositor and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor or the Master Servicer
may remove the Trustee and appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee so
removed, one copy of which shall be delivered to the Master Servicer and one
copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered by the successor Trustee to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor so
appointed. Notice of any removal of the Trustee shall be given to each Rating
Agency by the successor trustee. Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section 8.07 shall become effective upon acceptance by the successor trustee of
appointment 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, as
confirmed in writing by each Rating Agency.
Upon acceptance by a successor trustee of appointment 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 by the successor trustee of
appointment, 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 (as
successor master servicer) 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 and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held liable by reason of any act
or omission of any other trustee hereunder and such appointment shall not,
and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which each REMIC election is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Master Servicer
covenants and agrees that it shall act as agent (and the Master Servicer is
hereby appointed to act as agent) on behalf of such REMIC and that in such
capacity it shall:
(a) prepare, submit to the Trustee for execution, and file, or cause
to be prepared and filed, in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit (REMIC) Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file or cause to be
prepared and filed with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to such REMIC, containing such information and at the times and in
the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby, including without limitation, the
calculation of any original issue discount using the prepayment assumption
identified in the Prospectus Supplement;
(b) apply for an Employee Identification Number from the Internal
Revenue Service via Form SS-4 or other acceptable method for such REMIC and
within thirty days of the Closing Date, furnish or cause to be furnished to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make or cause to be made elections that such assets be treated
as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee described in clauses (i)-(iv) of the definition thereof, or an agent
(including a broker, nominee or other middleman) of a non-Permitted Transferee
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(e) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status as a REMIC under the REMIC Provisions;
(f) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status;
(g) not permit the creation of any interests in such REMIC other
than the Certificates;
(h) not receive any amount representing a fee or other compensation
for services (except as otherwise permitted by this Agreement);
(i) receive any income attributable to any asset which is neither a
"qualified mortgage" nor a "permitted investment" within the meaning of the
REMIC Provisions;
(j) not receive any contributions to such REMIC after the Startup
Day that would be subject to tax under Section 860G(d) of the Code;
(k) not dispose of any assets of such REMIC at a gain if such
disposition would be a "prohibited transaction" within the meaning of Section
860F(a)(2) of the Code;
(l) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on such REMIC prior to its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Master Servicer or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Master Servicer from causing the withholding of payment of such tax, if
permitted by law, pending the outcome of such proceedings);
(m) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other Person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
and
(n) maintain records relating to such REMIC, including but not
limited to the income, expenses, assets and liabilities thereof and the adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information.
The Holder of the largest Percentage Interest of the Class A-LR
Certificates shall act as Tax Matters Person for the Lower-Tier REMIC and the
holder of the largest Percentage Interest of the Class A-R Certificates shall
act as the Tax Matters Person for the Upper-Tier REMIC within the meaning of
Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
designated as agent of such Certificateholder for such purpose (or if the Master
Servicer is not so permitted, such Holder shall be the Tax Matters Person in
accordance with the REMIC Provisions). In such capacity, the Master Servicer
shall, as and when necessary and appropriate, represent the related REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of such REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of such REMIC, and otherwise act on behalf of such REMIC in relation to
any tax matter or controversy involving it.
In order to enable the Master Servicer to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Master Servicer within ten (10) days after the Closing Date all information or
data that the Master Servicer requests in writing and determines to be relevant
for tax purposes to the valuations and offering prices of the Certificates,
including, without limitation, the price, yield, prepayment assumption and
projected cash flows of the Certificates and the Mortgage Loans. Thereafter, the
Depositor shall provide to the Master Servicer promptly upon written request
therefor, any such additional information or data that the Master Servicer may,
from time to time, reasonably request in order to enable the Master Servicer to
perform its duties as set forth herein. The Depositor hereby indemnifies the
Master Servicer for any losses, liabilities, damages, claims or expenses of the
Master Servicer arising from any errors or miscalculations of the Master
Servicer that result from any failure of the Depositor to provide, or to cause
to be provided, accurate information or data to the Master Servicer on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of
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, the Trustee or the Trust Administrator, respectively, if any such
other tax arises out of or results from a breach by the Master Servicer, the
Trustee or the Trust Administrator, 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 Trust Administrator, 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).
The parties intend that the portion of the Trust Fund constituting
the Grantor Trust, consisting of the Class P Prepayment Charges shall
constitute, and that the affairs of the Grantor Trust shall be conducted so as
to qualify such portion as a "grantor trust" under subpart E, Part I of
subchapter J of the Code, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Master
Servicer shall file or cause to be filed with the Internal Revenue Service
together with Form 1041 or such other form as may be applicable and shall
furnish or cause to be furnished, to the Class P Certificateholders, the amount
of Class P Prepayment Charges received, in the time or times and in the manner
required by the Code.
Section 8.12 Periodic Filings.
(a) With respect to each Distribution Date, prior to the issuance of
the related monthly statement to Certificateholders pursuant to Section 4.04
(each, a "Distribution Date Statement"), the Master Servicer shall confirm that
it has received all distribution and/or servicing information required to be
provided to the Master Servicer by each Servicer for inclusion in such
Distribution Date Statement. In the event the Master Servicer determines that
any such information has not been provided as required or is materially
incorrect, the Master Servicer shall immediately notify the applicable Servicer
and use its reasonable best efforts to cause the Servicer to provide or correct,
as the case may be, such information promptly (but in any event in time to
permit the Master Servicer to distribute the Distribution Date Statement at the
time required in this Agreement).
(b) Promptly upon receipt by the Master Servicer of (i) any
officer's certificate relating to any Servicer's annual compliance with the
terms of the applicable Servicing Agreement, (ii) any report of any Servicer's
independent public accountants relating to the Servicer's compliance with
servicing standards, as required under the applicable Servicing Agreement and
(iii) any report of the Master Servicer's independent public accountants
required pursuant to Section 3.22, the Master Servicer shall review such
officer's certificate and reports. As part of the Form 10-K required to be filed
pursuant to paragraph (c) of this Section 8.12, the Master Servicer shall
include each such Servicer's annual statement of compliance (as well as any
annual statement of compliance of the Master Servicer required pursuant to
Section 3.21), and each such accountant's report, as well as a report of any
significant deficiencies relating to any Servicer's performance of its
obligations under the applicable Servicing Agreement.
(c) The Master Servicer shall reasonably cooperate with the
Depositor to enable the Trust to satisfy its reporting requirements under the
Exchange Act. The Master Servicer shall prepare on behalf of the Trust any Forms
8-K (or other comparable required Form containing the same or comparable
information or other information mutually agreed upon) and 10-K customary for
similar securities as required by the Exchange Act and the rules and regulations
promulgated thereunder, and the Master Servicer shall sign and file (via the
Securities and Exchange Commission's Electronic Data Gathering and Retrieval
System) such forms on behalf of the Trust.
(d) Each Form 8-K shall be filed by the Master Servicer within 15
days after each Distribution Date and shall include a copy of the Distribution
Date Statement for such Distribution Date as an exhibit thereto. Prior to March
30th of each year beginning in March 2005 (or such earlier date as may be
required by the Exchange Act and the rules and regulations promulgated
thereunder), the Master Servicer shall file a Form 10-K, in substance as
required by applicable law or applicable Securities and Exchange Commission
staff's interpretations. Such Form 10-K shall include as exhibits the annual
statements of compliance, the accountant's reports, any report of significant
deficiencies relating to any Servicer's performance of its obligations under the
applicable Servicing Agreement described in paragraph (b) of this Section 8.12
and any other exhibits that may be required as a result of any new rules adopted
by the Securities and Exchange Commission, in each case to the extent they have
been timely delivered to the Master Servicer. In accordance with the Exchange
Act and the rules and regulations promulgated thereunder, if such exhibits are
not so timely delivered, the Master Servicer shall (i) file the balance of the
Form 10-K, indicating on the cover page thereof which of such exhibits are
omitted, and (ii) no later than one Business Day after the due date for Form
10-K, file a Form 12b-25, notifying the Securities and Exchange Commission of
its inability to timely file all or any required portion of Form 10-K. No later
than the fifteenth calendar day after the due date for Form 10-K, the Master
Servicer shall, to the extent in its possession, file such exhibits with the
Securities and Exchange Commission. If the Master Servicer has not received such
exhibits by such fifteenth calendar day, the Master Servicer shall notify the
Depositor. The Master Servicer shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from or
relating to the Master Servicer's inability or failure to obtain any information
not resulting from its own negligence, bad faith or willful misconduct. Each
Form 10-K shall also include a certification in the form attached hereto as
Exhibit M or in such other form as may be required by Rules 13a-14 and 15d-14
under the Exchange Act, as applicable, and any existing or future directives or
interpretations thereof or rules subsequently adopted by the Securities and
Exchange Commission (the "Certification"), which Certification shall be signed
by a Master Servicing Officer.
(e) Upon any filing with the Securities and Exchange Commission, the
Master Servicer shall promptly deliver to the Depositor a copy of such executed
report, statement or information.
(f) Prior to January 30 of the first year in which the Master
Servicer is able to do so under applicable law, the Master Servicer shall file a
Form 15 Suspension Notification with respect to the Trust unless instructed in
writing by the Depositor not to do so.
ARTICLE IX
CONCERNING THE TRUST ADMINISTRATOR
Section 9.01 Duties of Trust Administrator. The Trust Administrator
shall undertake to perform such duties and only such duties as are specifically
set forth in this Agreement.
The Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trust Administrator 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 Trust Administrator 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 Trust
Administrator shall notify the Certificateholders of such non-conforming
instrument in the event the Trust Administrator, after so requesting, does not
receive a satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Trust Administrator shall be
determined solely by the express provisions of this Agreement, the Trust
Administrator 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 Trust Administrator and the Trust Administrator 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
Trust Administrator 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 Trust Administrator shall not be liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trust Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Trust Administrator was negligent in
ascertaining the pertinent facts;
(iii) the Trust Administrator 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 Trust Administrator, or exercising or omitting to exercise any trust
or power conferred upon the Trust Administrator under this Agreement; and
(iv) the Trust Administrator shall not be accountable, shall have no
liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 9.02 Certain Matters Affecting the Trust Administrator.
Except as otherwise provided in Section 9.01:
(i) the Trust Administrator may request and conclusively rely upon
and shall be fully protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties and the Trust Administrator shall have no responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(ii) the Trust Administrator 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 Trust Administrator 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) the Trust Administrator 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 Trust Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trust Administrator, not reasonably assured to the Trust
Administrator by the security afforded to it by the terms of this
Agreement, the Trust Administrator may require reasonable indemnity
against such expense or liability as a condition to so proceeding. 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 Trust Administrator 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 Trust Administrator shall not
be responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed by the Trust Administrator with due
care;
(vi) the Trust Administrator 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 Trust Administrator 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 Trust Administrator 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) [reserved];
(viii) [reserved];
(ix) the Trust Administrator 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 Trust Administrator
reasonable security or indemnity satisfactory to the Trust Administrator
against the costs, expenses and liabilities which may be incurred therein
or thereby; and
(x) the Trust Administrator shall have no obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties
hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Trust Administrator 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 the interests of the Trustee, the Trust Administrator
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 Trust
Administrator shall be entitled to be reimbursed therefor out of the
Collection Account.
The Trust Administrator 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 thereof, (B) to
see to the provision of 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 9.03 Trust Administrator 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 Trust Administrator assumes no responsibility for their correctness. The
Trust Administrator 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 Trust Administrator's execution and
authentication of the Certificates. The Trust Administrator 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 9.04 Trust Administrator May Own Certificates. The Trust
Administrator 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 Trust
Administrator.
Section 9.05 Trust Administrator's Fees and Expenses. The Trust
Administrator shall be compensated by the Master Servicer as separately agreed
with the Master Servicer. The Trust Administrator 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 Trust Administrator 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, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Trust Administrator's duties
hereunder, (ii) incurred in connection with the performance of any of the Trust
Administrator's duties or the exercise of (or failure to exercise) its rights
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trust Administrator's duties hereunder, or (iii) incurred by reason of any
action of the Trust Administrator taken at the direction of the
Certificateholders, provided that any such loss, liability or expense
constitutes an "unanticipated expense incurred by the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity shall survive
the termination of this Agreement or the resignation or removal of the Trust
Administrator hereunder. Without limiting the foregoing, and except for any such
expense, disbursement or advance as may arise from the Trust Administrator's
negligence, bad faith or willful misconduct, or which would not be an
"unanticipated expense" within the meaning of the second preceding sentence, the
Trust Administrator shall be reimbursed by the Trust for all reasonable
expenses, disbursements and advances incurred or made by the Trust Administrator
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 Trust
Administrator, to the extent that the Trust Administrator 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 9.06 Eligibility Requirements for Trust Administrator. The
Trust Administrator hereunder shall at all times be a corporation or association
organized and doing business under the laws the United States of America or any
state thereof, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by federal or state authority and with a credit
rating of at least investment grade or at least "A/F1" by Fitch if Fitch is a
Rating Agency. If such corporation or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 9.06
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 Trust Administrator
shall cease to be eligible in accordance with the provisions of this Section
9.06, the Trust Administrator shall resign immediately in the manner and with
the effect specified in Section 9.07 hereof. The entity serving as Trust
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Section 9.07 Resignation and Removal of Trust Administrator. The
Trust Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
9.08, such resignation is to take effect, and acceptance by a successor trust
administrator in accordance with Section 9.08 meeting the qualifications set
forth in Section 9.06. If no successor trust administrator meeting such
qualifications shall have been so appointed by the Depositor or the Trustee and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trust Administrator may petition any court of
competent jurisdiction for the appointment of a successor trust administrator.
If at any time the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 9.06 hereof and shall fail to resign
after written request thereto by the Depositor, or if at any time the Trust
Administrator shall become incapable of acting, or shall be adjudged as bankrupt
or insolvent, or a receiver of the Trust Administrator or of its property shall
be appointed, or any public officer shall take charge or control of the Trust
Administrator 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 Trust Administrator or the Trust Fund is located and
the imposition of such tax would be avoided by the appointment of a different
Trust Administrator, then the Depositor or the Trustee may remove the Trust
Administrator and appoint a successor trust administrator by written instrument,
in triplicate, one copy of which instrument shall be delivered to the Trust
Administrator so removed, one copy of which shall be delivered to the Master
Servicer and one copy to the successor trust administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trust Administrator and appoint a successor
trust administrator 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 Trust Administrator to the
Trustee, one complete set to the Trust Administrator so removed and one complete
set to the successor so appointed. Notice of any removal of the Trust
Administrator shall be given to each Rating Agency by the successor trust
administrator.
Any resignation or removal of the Trust Administrator and
appointment of a successor trust administrator pursuant to any of the provisions
of this Section 9.07 shall become effective upon acceptance by the successor
trust administrator of appointment as provided in Section 9.08 hereof.
Section 9.08 Successor Trust Administrator. Any successor trust
administrator appointed as provided in Section 9.07 hereof shall execute,
acknowledge and deliver to the Depositor and to its predecessor trust
administrator and the Trustee an instrument accepting such appointment hereunder
and thereupon the resignation or removal of the predecessor trust administrator
shall become effective and such successor trust administrator, 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 trust administrator herein. The Depositor, the
Trustee, the Master Servicer and the predecessor trust administrator 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
trust administrator all such rights, powers, duties, and obligations.
No successor trust administrator shall accept appointment as
provided in this Section 9.08 unless at the time of such acceptance such
successor trust administrator shall be eligible under the provisions of Section
9.06 hereof and its appointment shall not adversely affect the then current
rating of the Certificates, as confirmed in writing by each Rating Agency.
Upon acceptance by a successor trust administrator of appointment as
provided in this Section 9.08, the Depositor shall mail notice of the succession
of such trust administrator hereunder to all Holders of Certificates. If the
Depositor fails to mail such notice within 10 days after acceptance by the
successor trust administrator of appointment, the successor trust administrator
shall cause such notice to be mailed at the expense of the Depositor.
Section 9.09 Merger or Consolidation of Trust Administrator. Any
corporation or other entity into which the Trust Administrator 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 Trust
Administrator shall be a party, or any corporation or other entity succeeding to
the business of the Trust Administrator, shall be the successor of the Trust
Administrator hereunder, provided that such corporation or other entity shall be
eligible under the provisions of Section 9.06 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.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Purchase of All
Mortgage Loans. (a) Subject to Section 10.03, the obligations and
responsibilities of the Depositor, the Transferor, the Master Servicer, the
Trust Administrator and the Trustee created hereby with respect to the Trust
Fund shall terminate upon the earlier of (i) the purchase, in accordance with
this Section 10.01, of all Mortgage Loans (and REO Properties) remaining in the
Trust Fund at the price equal to the sum of (x) the aggregate Clean-up Call
Mortgage Loan Price for all the Mortgage Loans and (y) the aggregate Clean-up
Call REO Property Price for all the REO Properties, and (ii) the later of (x)
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 (y) 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 of the
Master Servicer to elect to terminate the Trust Fund pursuant to this clause (a)
shall be conditioned upon the Aggregate Pool Principal Balance, at the time of
any such repurchase, aggregating less than five percent (5%) of the aggregate
Cut off Date Principal Balance of the Mortgage Loans.
(b) Within two (2) Business Days after the Master Servicer has
elected to terminate the Trust Fund pursuant to Section 10.01(a), the Master
Servicer shall deliver a bid notice for the Mortgage Loans and the REO
Properties to UBS Securities LLC and at least two other institutions that are
regular purchasers and/or sellers in the secondary market of residential whole
mortgage loans. The bid notice shall specify the Mortgage Loans and the REO
Properties that are being sold, identify the aggregate Clean-up Call REO
Property Price required to be paid for the REO Properties and the other
information necessary for the bidders to make bids. The Master Servicer shall
also be entitled to submit a bid for the Mortgage Loans and the REO Properties
that are being sold. All bids must be submitted to the Master Servicer on a date
determined by the Master Servicer, which date shall be set forth in the bid
notice. Only cash bids may be accepted. With respect to the Mortgage Loans to be
purchased, if one or more bids that exceed the aggregate Par Call Price are
received, the Fair Market Value Call Price for the Mortgage Loans shall be equal
to the price bid by the highest bidder, and such bidder shall complete the
purchase of the related Mortgage Loans and the REO Properties from the Trust
Fund at the aggregate Clean-up Call Mortgage Loan Price for the Mortgage Loans
and the aggregate Clean-up Call REO Property Price for such REO Properties
before the final Distribution Date. With respect to the Mortgage Loans to be
purchased, if fewer than three bids are received or no cash bid exceeds the
aggregate of the Par Call Price for the Mortgage Loans, the Fair Market Value
Call Price shall be zero and the Master Servicer shall complete the purchase of
the Mortgage Loans and the REO Properties from the Trust Fund at the aggregate
Clean-up Call Mortgage Loan Price for the Mortgage Loans and the aggregate
Clean-up Call REO Property Price for the REO Properties before the final
Distribution Date.
Section 10.02 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 Trust
Administrator promptly to send a Notice of Final Distribution to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 10.01, at least 5 days prior to the date
Notice of Final Distribution is to be mailed to the affected Certificateholders,
the Master Servicer shall notify the Depositor and the Trust Administrator of
the date the Master Servicer intends to terminate the Trust Fund.
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 Trust Administrator by letter to Certificateholders mailed not earlier
than the 15th day of the month preceding the month of such final distribution
and not later than the 5th day of the month of such final distribution. Any such
Notice of Final Distribution 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 location of
the office or agency at which such presentation and surrender must be made, and
(c) 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 Trust Administrator 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 Trust
Administrator 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 related
Class of Regular Certificates, the Certificate Principal Balance thereof plus
accrued interest thereon and (ii) as to the Residual Certificates, the amount,
if any, that 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 Trust Administrator 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 Trust
Administrator 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 that remain subject hereto and
(i) the Class A-LR Certificateholders shall be entitled to all unclaimed funds
and other assets of the Lower-Tier REMIC and (ii) the Class A-R
Certificateholders shall be entitled to all unclaimed funds and other assets of
the Upper-Tier REMIC that remain subject hereto.
Section 10.03 Additional Termination Requirements. (a) In the event
the Master Servicer exercises its purchase option as provided in Section 10.01,
the Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trust Administrator and 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 10.03 will not
(i) result in the imposition of taxes on "prohibited transactions" on the
Upper-Tier REMIC or the Lower-Tier REMIC as defined in Section 860F of the Code,
or (ii) cause any such REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) The notice given by the Master Servicer under Section 10.02
shall provide that such notice constitutes the adoption of a plan of
complete liquidation of the REMICs as of the date of such notice (or, if
earlier, the date on which the first such notice is mailed to
Certificateholders). The Master Servicer shall also specify such date in a
statement attached to the final tax return of each of the Upper-Tier REMIC
and Lower-Tier REMIC; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Trust
Administrator shall sell all of the assets of the Trust Fund to the Master
Servicer for cash at the purchase price specified in Section 10.01 and
shall distribute such cash within 90 days of such adoption in the manner
specified in Section 10.02.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Transferor, the Master Servicer, the Custodian, the
Trust Administrator and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein or in the Prospectus Supplement,
(iii) to add to the duties of the Depositor, the Trustee, the Trust
Administrator, the Transferor, the Custodian or the Master Servicer, (iv) to add
any other provisions with respect to matters or questions arising hereunder or
(v) to modify, alter, amend, add to or rescind any of the terms or provisions
contained in this Agreement; provided that any action pursuant to clause (iv) or
(v) above shall not, as evidenced by an Opinion of Counsel addressed to the
Trust Administrator and the Trustee (which Opinion of Counsel shall be an
expense of the party requesting the amendment, or if the Trust Administrator
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 Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates; it being understood and agreed that any such letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trust Administrator, Trustee, the Depositor, the
Transferor, the Custodian and the Master Servicer also may at any time and from
time to time amend this Agreement without the consent of the Certificateholders
to modify, eliminate or add to any of its provisions to such extent as shall be
necessary or helpful to (i) maintain the qualification of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC and the Grantor Trust as a grantor trust
under the Code, (ii) avoid or minimize the risk of the imposition of any tax on
any REMIC or the Grantor Trust 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 Trust Administrator has been
provided an Opinion of Counsel addressed to the Trust Administrator, the Trustee
and the Master Servicer, which opinion shall be an expense of the party
requesting such opinion but in any case shall not be an expense of the Trustee,
the Trust Administrator or the Trust Fund, to the effect that such action is
necessary or helpful to, as applicable, (i) maintain such qualification, (ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply with
any such requirements of the Code.
Section 8.12 of this Agreement may also be amended by the Depositor,
the Transferor, the Master Servicer, the Trust Administrator and the Trustee
without the consent of any of the Certificateholders, and without the need for
any Opinions of Counsel (other than the tax opinion described below) or Rating
Agency confirmation, in the event that new guidelines or procedures are issued
by the Securities and Exchange Commission with respect to the preparation and
filing of Form 10-K and the Certification required to be attached thereto as
referenced in Section 8.12(d).
This Agreement may also be amended from time to time by the
Depositor, the Transferor, the Master Servicer, the Custodian, the Trust
Administrator and the Trustee with the consent of the Holders of a Majority in
Interest of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in the
preceding clause (i), without the consent of the Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating 66% or
(iii) reduce the aforesaid percentages of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trust
Administrator shall not consent to any amendment to this Agreement (other than
pursuant to the second preceding paragraph) unless it shall have first received
an Opinion of Counsel addressed to the Trust Administrator and the Trustee,
which opinion shall not be an expense of the Trust Administrator, 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 or the Lower-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust 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 Trust Administrator 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 Trust Administrator may prescribe.
Nothing in this Agreement shall require the Trust Administrator to
enter into an amendment without receiving an Opinion of Counsel addressed to the
Trust Administrator and the Trustee (which Opinion shall not be an expense of
the Trust Administrator, the Trustee or the Trust Fund), satisfactory to the
Trust Administrator 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 11.01.
Section 11.02 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 Trust Administrator (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 11.03 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 11.04 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 11.05 Notices. (a) The Trust Administrator shall use its
best efforts to promptly provide notice to each Rating Agency with respect to
each of the following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Master Servicer Event of Termination that
has not been cured;
(iii) The resignation or termination of the Master Servicer, the
Custodian, the Trust Administrator or the Trustee and the appointment of
any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
(v) The final payment to Certificateholders.
In addition, the Master Servicer shall promptly furnish to each
Rating Agency copies of the following:
(i) Each annual statement as to compliance described in Section
3.21;
(ii) Each annual independent public accountants' servicing report
described in Section 3.22; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.02 or 2.03.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, Mortgage Asset Securitization Transactions, Inc., 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel,
(b) in the case of the Master Servicer, Xxxxx Fargo Bank, National Association,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services - MARM 2004-10 or such other address as the Master Servicer may
hereafter furnish to each other party to this Agreement in writing, (c) in the
case of Xxxxx Fargo in its capacity as Custodian, Xxxxx Fargo Bank, National
Association, 0000 00xx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services - MARM 2004-10 or such other address as the
Custodian may hereafter furnish to each other party to this Agreement in
writing, (d) in the case of the Trustee, the Corporate Trust Office, or such
other address as the Trustee may hereafter furnish to each other party to this
Agreement in writing, (e) in the case of the Transferor, UBS Real Estate
Securities Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel, (f) in the case of the Rating Agencies, the address
specified therefor in the definition corresponding to the name of such Rating
Agency and (g) in the case of the Trust Administrator, the Corporate Trust
Office, or such other address as the Trust Administrator may hereafter furnish
to each other party to this Agreement in writing. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 6.02 and this Section 11.07,
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 11.08 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 or the Trust
Administrator 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 or Trust
Administrator to institute such action, suit or proceeding in its own name as
Trustee or the Trust Administrator hereunder and shall have offered to the
Trustee or the Trust Administrator such reasonable indemnity as it may require
against the costs, expenses, and liabilities to be incurred therein or thereby,
and the Trustee or the Trust Administrator, 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 or the Trust Administrator, 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 11.08, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 11.09 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 authorize 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 11.09 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 11.10 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
Trust Administrator pursuant to this Agreement, are and shall be deemed fully
paid.
[Signature Page Follows]
IN WITNESS WHEREOF, the Depositor, the Transferor, the Trustee, the
Master Servicer, the Trust Administrator and the Custodian 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/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Director
UBS REAL ESTATE SECURITIES INC.,
as Transferor
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Director
JPMORGAN CHASE BANK,
as Trustee
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
as Master Servicer, Trust
Administrator and Custodian
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
----------------------
(Available upon request to the Depositor.)
SCHEDULE II
MASTR Adjustable Rate Mortgages Trust 2004-10
Mortgage Pass-Through Certificates
Series 2004-10
Representations and Warranties as to the Mortgage Loans
-------------------------------------------------------
UBS Real Estate Securities Inc. (the "Transferor") hereby makes with
respect to those Mortgage Loans sold by it to the Depositor pursuant to the
Mortgage Loan Purchase Agreement, the following representations and warranties.
(i) The information set forth in the Mortgage Loan Schedule was true
and correct in all material respects at the date or dates respecting which
such information is furnished as specified in the Mortgage Loan Schedule;
(ii) Immediately prior to the transfer and assignment contemplated
herein, the Transferor was the sole owner and holder of the Mortgage Loan
free and clear of any and all liens, pledges, charges or security
interests of any nature and has full right and authority to sell and
assign the same;
(iii) The Mortgage is a valid, subsisting and enforceable first lien
on the property therein described, and the Mortgaged Property is free and
clear of all encumbrances and liens having priority over the first lien of
the Mortgage except for liens for real estate taxes and special
assessments not yet due and payable and liens or interests arising under
or as a result of any federal, state or local law, regulation or ordinance
relating to hazardous wastes or hazardous substances, and, if the related
Mortgaged Property is a condominium unit, any lien for common charges
permitted by statute or homeowners association fees; and if the Mortgaged
Property consists of shares of a cooperative housing corporation, any lien
for amounts due to the cooperative housing corporation for unpaid
assessments or charges or any lien of any assignment of rents or
maintenance expenses secured by the real property owned by the cooperative
housing corporation; and any security agreement, chattel mortgage or
equivalent document related to, and delivered to the Trustee or to the
Master Servicer with, any Mortgage establishes in the Transferor a valid
and subsisting first lien on the property described therein and the
Transferor has full right to sell and assign the same to the Trustee;
(iv) Neither the Transferor nor any prior holder of the Mortgage or
the related Mortgage Note has modified the Mortgage or the related
Mortgage Note in any material respect, satisfied, canceled or subordinated
the Mortgage in whole or in part, released the Mortgaged Property in whole
or in part from the lien of the Mortgage, or executed any instrument of
release, cancellation, modification or satisfaction, except in each case
as is reflected in an agreement delivered to the Trustee or the Master
Servicer pursuant to Section 2.01;
(v) All taxes, governmental assessments, insurance premiums, and
water, sewer and municipal charges, which previously became due and owing
have been paid, or an escrow of funds has been established, to the extent
permitted by law, in an amount sufficient to pay for every such item that
remains unpaid; and the Transferor has not advanced funds, or received any
advance of funds by a party other than the Mortgagor, directly or
indirectly for the payment of any amount required by the Mortgage, except
for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the day
which precedes by thirty days the first Due Date under the related
Mortgage Note;
(vi) The Mortgaged Property is undamaged by water, fire, earthquake
or other earth movement, windstorm, flood, tornado or similar casualty
(excluding casualty from the presence of hazardous wastes or hazardous
substances, as to which the Transferor makes no representations), so as to
affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended and to the
best of the Transferor's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the Mortgaged
Property;
(vii) The Mortgaged Property is free and clear of all mechanics' and
materialmen's liens or liens in the nature thereof; provided, however,
that this warranty shall be deemed not to have been made at the time of
the initial issuance of the Certificates if a title policy affording, in
substance, the same protection afforded by this warranty is furnished to
the Trustee by the Transferor;
(viii) Except for Mortgage Loans secured by co op shares and
Mortgage Loans secured by residential long term leases, the Mortgaged
Property consists of a fee simple estate in real property; all of the
improvements which are included for the purpose of determining the
appraised value of the Mortgaged Property lie wholly within the boundaries
and building restriction lines of such property and no improvements on
adjoining properties encroach upon the Mortgaged Property (unless insured
against under the related title insurance policy); and to the best of the
Transferor's knowledge, the Mortgaged Property and all improvements
thereon comply with all requirements of any applicable zoning and
subdivision laws and ordinances;
(ix) The Mortgage Loan meets, or is exempt from, applicable state or
federal laws, regulations and other requirements, pertaining to usury, and
the Mortgage Loan is not usurious;
(x) To the best of the Transferor's knowledge, all inspections,
licenses and certificates required to be made or issued with respect to
all occupied portions of the Mortgaged Property and, with respect to the
use and occupancy of the same, including, but not limited to, certificates
of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities;
(xi) All payments required to be made up to but not including the
Due Date immediately preceding the Cut Off Date for such Mortgage Loan
under the terms of the related Mortgage Note have been made, and no
payment under any Mortgage Loan has been 30 days delinquent more than one
time within twelve months prior to the Closing Date;
(xii) The Mortgage Note, the related Mortgage and other agreements
executed in connection therewith are genuine, and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law); and, to the best of the Transferor's knowledge, all
parties to the Mortgage Note and the Mortgage had legal capacity to
execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage has been duly and properly executed by the Mortgagor;
(xiii) All Mortgage Loans were originated in compliance with all
applicable laws, including, but not limited to, all applicable
anti-predatory lending laws.
(xiv) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act. No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or
local law;
(xv) The proceeds of the Mortgage Loans have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on site or off site improvements and
as to disbursements of any escrow funds therefor have been complied with
(except for escrow funds for exterior items which could not be completed
due to weather and escrow funds for the completion of swimming pools); and
all costs, fees and expenses incurred in making, closing or recording the
Mortgage Loan have been paid, except recording fees with respect to
Mortgages not recorded as of the Closing Date;
(xvi) The Mortgage Loan (except any Mortgage Loan secured by a
Mortgaged Property located in any jurisdiction, as to which an opinion of
counsel of the type customarily rendered in such jurisdiction in lieu of
title insurance is instead received) is covered by an American Land Title
Association mortgagee title insurance policy or other generally acceptable
form of policy or insurance acceptable to Xxxxxx Mae or Xxxxxxx Mac,
issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac insuring
the originator, its successors and assigns, as to the first priority lien
of the Mortgage in the original principal amount of the Mortgage Loan and
subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage acceptable to mortgage
lending institutions in the area in which the Mortgaged Property is
located or specifically referred to in the appraisal performed in
connection with the origination of the related Mortgage Loan, (C) liens
created pursuant to any federal, state or local law, regulation or
ordinance affording liens for the costs of clean up of hazardous
substances or hazardous wastes or for other environmental protection
purposes and (D) such other matters to which like properties are commonly
subject which do not individually, or in the aggregate, materially
interfere with the benefits of the security intended to be provided by the
Mortgage; the Transferor is the sole insured of such mortgagee title
insurance policy, the assignment to the Trustee of the Transferor's
interest in such mortgagee title insurance policy does not require any
consent of or notification to the insurer which has not been obtained or
made, such mortgagee title insurance policy is in full force and effect
and will be in full force and effect and inure to the benefit of the
Trustee, no claims have been made under such mortgagee title insurance
policy, and no prior holder of the related Mortgage, including the
Transferor, has done, by act or omission, anything which would impair the
coverage of such mortgagee title insurance policy;
(xvii) The Mortgaged Property securing each Mortgage Loan is insured
by an insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire
and such hazards as are covered under a standard extended coverage
endorsement, in an amount which is not less than the lesser of 100% of the
insurable value of the Mortgaged Property and the outstanding principal
balance of the Mortgage Loan, but in no event less than the minimum amount
necessary to fully compensate for any damage or loss on a replacement cost
basis; if the Mortgaged Property is a condominium unit, it is included
under the coverage afforded by a blanket policy for the project; if upon
origination of the Mortgage Loan, the improvements on the Mortgaged
Property were in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards, a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of (A) the outstanding principal balance of the Mortgage Loan, (B)
the full insurable value of the Mortgaged Property and (C) the maximum
amount of insurance which was available under the National Flood Insurance
Act of 1968, as amended; and each Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and
expense;
(xviii) To the best of the Transferor's knowledge, no foreclosure
action is currently threatened or has been commenced with respect to the
Mortgage Loan and the Transferor has not waived any default, breach,
violation or event of acceleration;
(xix) No Mortgage Note or Mortgage is subject to any right of
rescission, set off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note or
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or Mortgage unenforceable, in whole or in part, or subject it to any
right of rescission, set off, counterclaim or defense, including the
defense of usury, and no such right of rescission, set off, counterclaim
or defense has been asserted with respect thereto;
(xx) Each Mortgage Note is payable in monthly payments;
(xxi) Each Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including realization by judicial foreclosure (subject to any
limitation arising from any bankruptcy, insolvency or other law for the
relief of debtors), and there is no homestead or other exemption available
to the Mortgagor which would interfere with such right of foreclosure;
(xxii) To the best of the Transferor's knowledge, no Mortgagor is a
debtor in any state or federal bankruptcy or insolvency proceeding;
(xxiii) Each Mortgaged Property consists of a one to four unit
residential property, which may include a detached home, townhouse,
condominium unit or a unit in a planned unit development or, in the case
of Mortgage Loans secured by co op shares, leases or occupancy agreements;
(xxiv) The Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code;
(xxv) With respect to each Mortgage where a lost note affidavit has
been delivered to the Trustee in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence;
(xxvi) In the event that the Mortgagor is an inter vivos "living"
trust, (i) such trust is in compliance with Xxxxxx Mae or Xxxxxxx Mac
standards for inter vivos trusts and (ii) holding title to the Mortgaged
Property in such trust will not diminish any rights as a creditor
including the right to full title to the Mortgaged Property in the event
foreclosure proceedings are initiated;
(xxvii) If the Mortgage Loan is secured by a long term residential
lease, (1) the lessor under the lease holds a fee simple interest in the
land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent
and the acquisition by the holder of the Mortgage of the rights of the
lessee upon foreclosure or assignment in lieu of foreclosure or provide
the holder of the Mortgage with substantially similar protections; (3) the
terms of such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled to
receive written notice of, and opportunity to cure, such default or (b)
allow the termination of the lease in the event of damage or destruction
as long as the Mortgage is in existence; (4) the term of such lease does
not terminate earlier than five years after the maturity date of the
Mortgage Note; and (5) the Mortgaged Property is located in a jurisdiction
in which the use of leasehold estates in transferring ownership in
residential properties is a widely accepted practice;
(xxviii) The Mortgage Loan was originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act, as amended, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a
federal or state authority;
(xxix)The Mortgage Loan was underwritten in accordance with the
underwriting guidelines of the related Loan Seller in effect at the time
of origination with exceptions thereto exercised in a reasonable manner;
(xxx) The Loan Seller used no adverse selection procedures in
selecting the Mortgage Loan from among the outstanding first-lien,
residential mortgage loans owned by it which were available for sale to
the Transferor;
(xxxi) With respect to each Mortgage Loan, the Transferor is in
possession of a complete Mortgage File except for the documents which have
been delivered to the Trustee or which have been submitted for recording
and not yet returned;
(xxxii) As of the Cut-off Date, the range of original Loan-to-Value
Ratios of the Mortgage Loans is 21.36% to 100%, and 121 Mortgage Loans,
representing 11.93% of the Cut-off Date Pool Balance, had Loan-to-Value
Ratios at origination in excess of 80%. Each such Mortgage Loan is subject
to a Primary Insurance Policy;
(xxxiii) With respect to each Mortgage Loan, the related Servicing
Agreement requires the related Servicer to deposit into the related
Protected Account an amount equal to all payments of principal and
interest on such Mortgage Loan that are delinquent at the close of
business on the related Determination Date and not previously advanced by
such Servicer. The obligation of such Servicer to advance such payments as
to such Mortgage Loan will continue through the final disposition or
liquidation of the Mortgaged Property, unless such Servicer deems such
advance to be nonrecoverable from liquidation proceeds, REO disposition
proceeds, condemnation proceeds or insurance proceeds with respect to such
Mortgage Loan;
(xxxiv) With respect to each Mortgage Loan that has a prepayment
penalty feature, each such prepayment penalty is enforceable and, at the
time such Mortgage Loan was originated, each prepayment penalty complied
with applicable federal, state and local law, subject to federal
preemption where applicable;
(xxxv) No proceeds from any Mortgage Loan underlying the security
were used to finance single-premium credit insurance policies;
(xxxvi) No subprime Mortgage Loan originated on or after October 1,
2002 will impose a prepayment premium for a term in excess of three years.
Any Mortgage Loans originated prior to such date, and any non-subprime
loans, will not impose prepayment penalties in excess of five years;
(xxxvii) The Servicer for each Mortgage Loan has fully furnished, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit filed to Equifax, Experian, and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis;
(xxxviii) The original principal balance of each Group 1 Mortgage
Loan is within Xxxxxxx Mac's dollar amount limits for conforming one-to
four-family Mortgage Loans; and
(xxxix) No Mortgage Loan originated on or after August 1, 2004
requires the Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction.
SCHEDULE III
MASTR Adjustable Rate Mortgages Trust 2004-10
Mortgage Pass-Through Certificates
Series 2004-10
Class P Prepayment Charges Mortgage Loan Schedule
-------------------------------------------------
(Available upon request to the Depositor.)
EXHIBIT A-1-A-1
(FORM OF CLASS 1-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust
Administrator for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: 1-A-1-[_]
Date of Pooling and Servicing Agreement: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[_______]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $60,000,000
of this Class:
CUSIP: 576433 SU 1
ISIN: US576433SU18
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
Class 1-A-1
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Trust Administrator, the
Trustee or the custodian 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 date specified above (the "Agreement") among the
Depositor, UBS Real Estate Securities Inc., as transferor (the "Transferor"),
Xxxxx Fargo Bank, National Association, as master servicer (in such capacity,
the "Master Servicer"), trust administrator (in such capacity, the "Trust
Administrator") and custodian, and JPMorgan Chase Bank, as trustee (the
"Trustee"). Distributions on this Certificate will be made primarily from
collections on the applicable Mortgage Loans pursuant to the terms of the
Agreement. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT A-2-A-1
(FORM OF CLASS 2-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust
Administrator for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: 2-A-1-[_]
Date of Pooling and Servicing Agreement: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[_______]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $95,735,000
of this Class:
CUSIP: 576433 SV 9
ISIN: US576433SV90
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
Class 2-A-1
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
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 Master Servicer, the Trust Administrator, the
Trustee or the custodian 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 date specified above (the "Agreement") among the
Depositor, UBS Real Estate Securities Inc., as transferor (the "Transferor"),
Xxxxx Fargo Bank, National Association, as master servicer (in such capacity,
the "Master Servicer"), trust administrator (in such capacity, the "Trust
Administrator") and custodian, and JPMorgan Chase Bank, as trustee (the
"Trustee"). Distributions on this Certificate will be made primarily from
collections on the applicable Mortgage Loans pursuant to the terms of the
Agreement. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT A-2-A-2
(FORM OF CLASS 2-A-2 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust
Administrator for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: 2-A-2-[_]
Date of Pooling and Servicing Agreement: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[_______]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $2,961,000
of this Class:
CUSIP: 576433 SW 7
ISIN: US576433SW73
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
Class 2-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 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 Master Servicer, the Trust Administrator, the
Trustee or the custodian 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 date specified above (the "Agreement") among the
Depositor, UBS Real Estate Securities Inc., as transferor (the "Transferor"),
Xxxxx Fargo Bank, National Association, as master servicer (in such capacity,
the "Master Servicer"), trust administrator (in such capacity, the "Trust
Administrator") and custodian, and JPMorgan Chase Bank, as trustee (the
"Trustee"). Distributions on this Certificate will be made primarily from
collections on the applicable Mortgage Loans pursuant to the terms of the
Agreement. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT A-3-A-1
(FORM OF CLASS 3-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust
Administrator for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: 3-A-1-[_]
Date of Pooling and Servicing Agreement: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[_______]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $61,159,000
of this Class:
CUSIP: 576433 SX 5
ISIN: US576433SX56
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
Class 3-A-1
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
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 Master Servicer, the Trust Administrator, the
Trustee or the custodian 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 date specified above (the "Agreement") among the
Depositor, UBS Real Estate Securities Inc., as transferor (the "Transferor"),
Xxxxx Fargo Bank, National Association, as master servicer (in such capacity,
the "Master Servicer"), trust administrator (in such capacity, the "Trust
Administrator") and custodian, and JPMorgan Chase Bank, as trustee (the
"Trustee"). Distributions on this Certificate will be made primarily from
collections on the applicable Mortgage Loans pursuant to the terms of the
Agreement. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT A-3-A-2
(FORM OF CLASS 3-A-2 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust
Administrator for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: 3-A-2-[_]
Date of Pooling and Servicing Agreement: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate $[_______]
("Denomination"):
Initial Certificate Principal Balances of all Certificates $1,891,000
of this Class:
CUSIP: 576433 SY 3
ISIN: US576433SY30
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
Class 3-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 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 Master Servicer, the Trust Administrator, the
Trustee or the custodian 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 date specified above (the "Agreement") among the
Depositor, UBS Real Estate Securities Inc., as transferor (the "Transferor"),
Xxxxx Fargo Bank, National Association, as master servicer (in such capacity,
the "Master Servicer"), trust administrator (in such capacity, the "Trust
Administrator") and custodian, and JPMorgan Chase Bank, as trustee (the
"Trustee"). Distributions on this Certificate will be made primarily from
collections on the applicable Mortgage Loans pursuant to the terms of the
Agreement. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT A-R
(FORM OF CLASS [A-LR] [A-R] CERTIFICATE)
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G 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 TRUST ADMINISTRATOR A TRANSFER AFFIDAVIT
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUST ADMINISTRATOR 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 TRUST ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("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, OR A PERSON
ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT, OR USING THE ASSETS OF ANY
SUCH PLAN OR ARRANGEMENT TO EFFECT SUCH TRANSFER. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE OR SIMILAR
LAW SHALL BE VOID AND OF NO EFFECT.
Certificate No.: [A-LR-[__]]
[A-R-[__]]
Date of Pooling and Servicing Agreement: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Pass-Through Rate: Floating in
accordance with the
Agreement
Initial Certificate Principal Balance of this Certificate A-LR: $[_____]
("Denomination"): A-R: $[_____]
Initial Certificate Principal Balances of all A-LR: $50
Certificates of this Class: A-R: $50
CUSIP: A-LR: 576433 SZ 0
A-R: 576433 TA 4
ISIN: A-LR: US576433SZ05
A-R: US576433TA45
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10 evidencing the
distributions allocable to the Class [A-LR] [A-R] Certificates with
respect to a Trust Fund consisting primarily of conventional loans
(the "Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Trust Administrator, the
Trustee or the custodian 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 date specified above (the "Agreement") among the Depositor, UBS Real
Estate Securities Inc., as transferor (the "Transferor"), Xxxxx Fargo Bank,
National Association, as master servicer (in such capacity, the "Master
Servicer"), trust administrator (in such capacity, the "Trust Administrator")
and custodian, and JPMorgan Chase Bank, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class [A-LR] [A-R]
Certificate at the Corporate Trust Office of the Trust Administrator.
No transfer of a Class [A-LR] [A-R] Certificate shall be made unless the
Trust Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trust Administrator, to the effect that such transferee is
not an employee benefit plan or arrangement subject to Section 406 of ERISA,
Section 4975 of the Code or Similar Law, or a person acting on behalf of any
such plan or arrangement, or using the assets of any such plan or arrangement to
effect such transfer, which representation letter shall not be an expense of the
Trust Administrator or the Master Servicer. Notwithstanding anything else to the
contrary herein any purported transfer of a Class [A-LR] [A-R] Certificate to or
on behalf of an employee benefit plan subject to ERISA, the Code or Similar Law
shall be void and of no effect.
Each Holder of this Class [A-LR] [A-R] Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class [A-LR] [A-R] Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class [A-LR] [A-R] Certificate
may be transferred without delivery to the Trust Administrator of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this Class
[A-LR] [A-R] Certificate must agree to require a transfer affidavit and to
deliver a transfer certificate to the Trust Administrator as required pursuant
to the Agreement, (iv) each person holding or acquiring an Ownership Interest in
this Class [A-LR] [A-R] Certificate must agree not to transfer an Ownership
Interest in this Class [A-LR] [A-R] Certificate if it has actual knowledge that
the proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class [A-LR] [A-R]
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT B
(FORM OF CLASS B-1, B-2 OR B-3 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust
Administrator for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No.: [B-1-[__]]
[B-2-[__]]
[B-3-[__]]
Date of Pooling and Servicing Agreement: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Pass-Through Rate: Floating in
accordance with the
Agreement
Initial Certificate Principal Balance of this Certificate B-1: $[_______]
("Denomination"): B-2: $[_______]
B-3: $[_______]
Initial Certificate Principal Balance of all Certificates B-1: $6,641,000
of this Class: B-2: $3,083,000
B-3: $1,897,000
CUSIP: B-1: 576433 TB 2
B-2: 576433 TC 0
B-3: 576433 TD 8
ISIN: B-1: US576433TB28
B-2: US576433TC01
B-3: US576433TD83
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
Class [B-1] [B-2] [B-3]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Trust Administrator, the
Trustee or the custodian 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 date specified above (the
"Agreement") among the Depositor, UBS Real Estate Securities Inc., as transferor
(the "Transferor"), Xxxxx Fargo Bank, National Association, as master servicer
(in such capacity, the "Master Servicer"), trust administrator (in such
capacity, the "Trust Administrator") and custodian, and JPMorgan Chase Bank, as
trustee (the "Trustee"). Distributions on this Certificate will be made
primarily from collections on the Mortgage Loans pursuant to the terms of the
Agreement. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT C
(FORM OF CLASS X-0, X-0 OR B-6 CERTIFICATE)
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUST ADMINISTRATOR OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE,
OR A PLAN OR ARRANGEMENT SUBJECT TO ANY PROVISION OF APPLICABLE FEDERAL, STATE
OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN") OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUST ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE TRUST ADMINISTRATOR, THE
DEPOSITOR, THE TRANSFEROR OR THE MASTER SERVICER TO ANY OBLIGATION IN ADDITION
TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY UNDER ERISA,
SECTION 4975 OF THE CODE OR SIMILAR LAW. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE OR SIMILAR LAW WITHOUT
THE REPRESENTATION LETTER OR OPINION OF COUNSEL AS DESCRIBED ABOVE SHALL BE VOID
AND OF NO EFFECT.
Certificate No.: [B-4-[__]]
[B-5-[__]]
[B-6-[__]]
Date of Pooling and Servicing Agreement: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Pass-Through Rate: Floating in
accordance with
the Agreement
Initial Certificate Principal Balance of this Certificate B-4: $[_______]
("Denomination"): B-5: $[_______]
B-6: $[_______]
Initial Certificate Principal Balances of all Certificates B-4: $1,660,000
of this Class: B-5: $1,305,000
B-6: $ 830,122
CUSIP: B-4: 576433 SR 8
B-5: 576433 SS 6
B-6: 576433 ST 4
ISIN: B-4: US576433SR88
B-5: US576433SS61
B-6: US576433ST45
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
Class [B-4] [B-5] [B-6]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential
properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Trust Administrator, the
Trustee or the custodian 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 date specified above (the
"Agreement") among the Depositor, UBS Real Estate Securities Inc., as transferor
(the "Transferor"), Xxxxx Fargo Bank, National Association, as master servicer
(in such capacity, the "Master Servicer"), trust administrator (in such
capacity, the "Trust Administrator") and custodian, and JPMorgan Chase Bank, as
trustee (the "Trustee"). Distributions on this Certificate will be made
primarily from collections on the Mortgage Loans pursuant to the terms of the
Agreement. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trust
Administrator in writing the facts surrounding the transfer or there shall be
delivered to the Trust Administrator at the expense of the transferor an Opinion
of Counsel addressed to the Trust Administrator that such transfer may be made
pursuant to an exemption from the Securities Act. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trust
Administrator, the Trustee, the Master Servicer 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 Trust
Administrator shall have received either (i) a representation letter from the
transferee of such Certificate, in the form attached to the Agreement, to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Title I of ERISA, 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, or a person acting on behalf of
any such plan or arrangement, or using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Trust Administrator or the Master 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, or a plan
or arrangement subject to 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 or arrangement, or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the Trust
Administrator to the effect that the purchase or holding of such Certificate
will not constitute or result in a non-exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Trustee, the Trust Administrator, the Depositor, the Transferor or
the Master Servicer to any obligation in addition to those undertaken in the
Agreement or to any liability under ERISA, Section 4975 of the Code or Similar
Law, which Opinion of Counsel shall not be an expense of the Trustee, the Trust
Administrator, the Depositor, the Transferor, the Master Servicer or the Trust
Fund. 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 Trust Administrator 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 Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT D
(FORM OF CLASS P CERTIFICATE)
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 TRUST ADMINISTRATOR OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUST ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE, OR A
PLAN OR ARRANGEMENT SUBJECT TO ANY PROVISION OF APPLICABLE FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (COLLECTIVELY, A "PLAN") OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE OR SIMILAR LAW SHALL BE
VOID AND OF NO EFFECT.
Certificate No.: P-[__]
Cut-off Date: As of September 1,
2004
First Distribution Date: October 25, 2004
Last Scheduled Distribution Date: October 25, 2034
Percentage Interest: [___]%
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
Class P
evidencing a percentage interest in the Class P
Prepayment Charges
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 Master Servicer, the Trust
Administrator, the Trustee or the custodian 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 the Class P Prepayment Charges 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 date specified above (the
"Agreement") among the Depositor, UBS Real Estate Securities Inc., as transferor
(the "Transferor"), Xxxxx Fargo Bank, National Association, as master servicer
(in such capacity, the "Master Servicer"), trust administrator (in such
capacity, the "Trust Administrator") and custodian, and JPMorgan Chase Bank, as
trustee (the "Trustee"). Distributions on this Certificate will be made from
Class P Prepayment Charges 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 Trust
Administrator in writing the facts surrounding the transfer or there shall be
delivered to the Trust Administrator at the expense of the transferor an Opinion
of Counsel addressed to the Trust Administrator that such transfer may be made
pursuant to an exemption from the Securities Act. The Holder hereof desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trust
Administrator, the Trustee, the Master Servicer 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 Trust
Administrator shall have received a representation letter from the transferee of
such Certificate, in the form attached to the Agreement, to the effect that such
transferee is not an employee benefit plan or arrangement subject to Title I of
ERISA, 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, or a person acting on behalf of any such plan
or arrangement, or using the assets of any such plan or arrangement to effect
such transfer, which representation letter shall not be an expense of the
Trustee, the Trust Administrator or the Master Servicer. 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 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 Trust Administrator.
IN WITNESS WHEREOF, the Trust Administrator has caused this Certificate to
be duly executed.
Dated: [_______________]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
By:____________________________________
Countersigned:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trust Administrator
EXHIBIT E
(Form of Reverse of Certificates)
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Pass-Through Certificates, Series 2004-10
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Asset Securitization Transactions, Inc. MASTR Adjustable
Rate Mortgages Trust 2004-10, 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 Trust Administrator 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 Trust Administrator.
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.
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 Trust Administrator 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 Corporate Trust Office of the Trust
Administrator 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
Trust Administrator and the rights of the Certificateholders under the Agreement
at any time by the Transferor, the Depositor, the Master Servicer, the Trust
Administrator and the Trustee with the consent of the Certificateholders
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 Trust Administrator upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trust
Administrator, accompanied by a written instrument of transfer in form
satisfactory to the Trust Administrator 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 Trust Administrator may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Master Servicer, the Trust Administrator and the Trustee and any agent
of the Master Servicer, the Trust Administrator or the Trustee may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Master Servicer, the Trustee, the Trust Administrator
nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the Pool Principal Balance of the
Mortgage Loans is less than 5% of the aggregate Cut-off Date Principal Balances
of the Mortgage Loans, the Master Servicer will have the option to purchase, 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 (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 property in respect thereof and (ii) the
distribution to Certificateholders of all amounts required to be distributed
pursuant to the Agreement. In no event, however, will the trust created by the
Agreement continue beyond the expiration of 21 years from the death of the last
survivor of the descendants living at the date of the Agreement of a certain
person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trust Administrator 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.
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
Mortgage Asset Securitization Transactions, Inc.
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Pooling and Servicing Agreement, dated September 1, 2004, among
Mortgage Asset Securitization Transactions, Inc., as
depositor, UBS Real Estate Securities Inc., as transferor,
Xxxxx Fargo Bank, National Association, as master servicer,
trust administrator and custodian, and JPMorgan Chase Bank,
as trustee, in connection with MASTR Adjustable Rate
Mortgages Trust 2004-10, Mortgage Pass-Through
Certificates, Series 2004-10
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, acting on behalf of the Trustee, hereby certifies that:
1. As to each related Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Cooperative Loan, 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;
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments); and
2. As to each related Cooperative Loan listed in the Mortgage Loan
Schedule (other than any Cooperative Loan paid in full or any Cooperative 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;
(ii) an executed assignment of the interest of the originator in the
Security Agreement, the Assignment of Proprietary Lease and the
Recognition Agreement, if any, showing an unbroken chain of title from the
originator to the Trust; and
(iii) the Cooperative Shares, together with the Stock Power in
blank.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File of any of the related Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
[NAME OF CUSTODIAN],
as Custodian
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF FINAL CERTIFICATION OF CUSTODIAN
[date]
Mortgage Asset Securitization Transactions, Inc.
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
UBS Real Estate Securities Inc.
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement, dated September 1, 2004, among
Mortgage Asset Securitization Transactions, Inc., as depositor, UBS
Real Estate Securities Inc., as transferor, Xxxxx Fargo Bank,
National Association, as master servicer, trust administrator and
custodian, and JPMorgan Chase Bank, as trustee, in connection with
MASTR Adjustable Rate Mortgages Trust 2004-10, Mortgage Pass-Through
Certificates, Series 2004-10
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, acting on behalf of the Trustee, hereby certifies that:
1. As to each related Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Cooperative Loan, 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(b)(i)(A) 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)(i)(C) 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 copies of each assumption, modification, written
assurance or substitution agreement, if any.
(vi) 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.
2. As to each related Cooperative Loan listed in the Mortgage Loan
Schedule (other than any Cooperative Loan paid in full or listed on the attached
Document Exception Report) it has received:
(i) The Cooperative Shares, together with the Stock Power in blank.
(ii) The executed Security Agreement.
(iii) The executed Proprietary Lease and the Assignment of
Proprietary Lease to the originator of the Cooperative Loan.
(iv) The executed Recognition Agreement, if any.
(v) Copies of the original UCC financing statement, and any
continuation statements, filed by the originator of such Cooperative Loan
as secured party, each with evidence of recording thereof, evidencing the
interest of the originator under the Security Agreement and the Assignment
of Proprietary Lease.
(vi) Copies of the filed UCC assignments or amendments of the
security interest referenced in clause 2(v) above showing an unbroken
chain of title from the originator to the Trust, each with evidence of
recording thereof, evidencing the interest of the assignee under the
Security Agreement and the Assignment of Proprietary Lease.
(vii) An executed assignment of the interest of the originator in
the Security Agreement, the Assignment of Proprietary Lease and the
Recognition Agreement, if any, showing an unbroken chain of title from the
originator to the Trust.
(viii) For any Cooperative Loan that has been modified or amended,
the original instrument or instruments effecting such modifications or
amendment.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2), (3), (4),
(9), (16) and (21) of the definition of the "Mortgage Loan Schedule" in Section
1.01 of the Pooling and Servicing Agreement accurately reflects information set
forth in the Mortgage File.
The Custodian on behalf of the Trustee has made no independent examination
of any documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Custodian on behalf of the
Trustee makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents contained in each Mortgage
File of any of the related Mortgage Loans identified on the Mortgage Loan
Schedule, or (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
[NAME OF CUSTODIAN],
as Custodian
By:____________________________________
Name:
Title:
EXHIBIT H
FORM OF TRANSFER AFFIDAVIT
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-10
Mortgage Asset Securitization Transactions, Inc.
Mortgage Pass-Through Certificates
Series 2004-10
1. The undersigned is an officer of _______, the proposed Transferee
of an Ownership Interest in a Class [A-LR] [A-R] Certificate (the "Certificate")
issued pursuant to the Pooling and Servicing Agreement dated as of September 1,
2004 (the "Agreement") among Mortgage Asset Securitization Transactions, Inc.,
as depositor, UBS Real Estate Securities Inc., as transferor (the "Transferor"),
Xxxxx Fargo Bank, National Association, as master servicer, trust administrator
and custodian (the "Master Servicer"), and JPMorgan Chase Bank, as trustee (the
"Trustee"). Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are
Disqualified Organizations; (ii) such tax will be imposed on the transferor, or,
if such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is a Disqualified Organization, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is not a Disqualified Organization and, at the time
of Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is a
Disqualified Organization is the record holder of an interest in such entity.
The Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is not a Disqualified Organization and the
pass-through entity does not have actual knowledge that such affidavit is false;
provided, that a pass-through entity which is an "electing large partnership"
under the Code will be subject to tax in all events. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.) The Transferee further understands that it may incur tax liabilities
with respect to the holding of the Certificate in excess of cash flows generated
thereby.
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trust Administrator 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
Trust Administrator with a duly completed Internal Revenue Service Form W-8ECI
or any applicable successor form.
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
11. The Transferee will not cause income with respect to the
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other United States Person.
12. Check one of the following paragraphs:
|_| The present value of the anticipated tax liabilities associated with
holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to pay tax
at the highest rate currently specified in Section 11(b) of the Code (but the
tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest
rate specified in Section 11(b) of the Code if the Transferee has been subject
to the alternative minimum tax under Section 55 of the Code in the preceding two
years and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Transferee.
|_| The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from
the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Transferee within the meaning of
U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of
U.S. Treasury Regulations Sections 1.860E-1(c)(4)(i), (ii) and (iii) and
Section 1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including,
but not limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and other
factors specific to the Transferee) that it has determined in good faith.
|_| None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, and the Transferee is
not acting on behalf of such a plan.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____________ day of __________________, 200_.
_______________________________________
PRINT NAME OF TRANSFEREE
By:____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
__________________________________
[Assistant] Secretary
EXHIBIT 1
to EXHIBIT H
Certain Definitions
"Disqualified Organization": A Person specified in clauses (i)-(iv) of the
definition of "Permitted Transferee."
"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 State thereof or the
District of Columbia, an estate whose income is subject to United States federal
income tax regardless of its source or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more 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 Trust Administrator 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 any 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.
"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 Trust
Administrator 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 Trust Administrator shall
not register the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Trust Administrator under
subparagraph (b) above, the Trust Administrator 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 Trust Administrator 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 Trust Administrator 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 Trust
Administrator shall be paid and delivered by the Trust Administrator 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 Trust Administrator, 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 Trust Administrator of an Opinion of Counsel addressed to
the Trust Administrator, the Trustee and the Master Servicer, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Trustee, the Trust
Administrator, the Transferor or the Master Servicer, to the effect that the
elimination of such restrictions will not cause any REMIC to fail to qualify as
a REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another Person.
Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel addressed to the Trust Administrator and 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:
Xxxxx Fargo Bank, National Association
Sixth Street and Marquette Avenue
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - MARM 2004-10
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2004-10, Mortgage Pass-Through Certificates,
Series 2004-10, Class [A-LR] [A-R]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the
Securities Act of 1933, as amended and (b) to the extent we are disposing of a
Class [A-LR] [A-R] Certificate, (i) we have no knowledge the Transferee is not a
Permitted Transferee, (ii) after conducting a reasonable investigation of the
financial condition of the Transferee, we have no reason to believe that the
Transferee will not pay taxes with respect to the Class [A-LR] [A-R] Certificate
when due, and (iii) we have no reason to believe that the statements made in
paragraph 11 of the Transferee's Transfer Affidavit are false.
Very truly yours,
_______________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT J
FORM OF INVESTMENT LETTER (NON-RULE 144A)
_____________________
Date
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - MARM 2004-10
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2004-10, Mortgage Pass-Through Certificates,
Series 2004-10, 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
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) of 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:
Xxxxx Fargo Bank, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - MARM 2004-10
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2004-10, Mortgage Pass-Through Certificates,
Series 2004-10, 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 Sections I and III of 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 as amended.
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 as amended.
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, National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000-0000
Attn: Inventory Control - MARM 2004-10
Re: Pooling and Servicing Agreement, dated as of September 1, 2004,
by and among Mortgage Asset Securitization Transactions, Inc., as
depositor, UBS Real Estate Securities Inc., as transferor, Xxxxx
Fargo Bank, National Association, as master servicer, trust
administrator and custodian, and JPMorgan Chase Bank, as trustee
In connection with the administration of the Mortgage Loans held by you as
Master Servicer pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
--------------------
Mortgagor Name, Address & Zip Code:
----------------------------------
Reason for Requesting Documents (check one):
-------------------------------------------
________ 1. Mortgage Paid in Full
________ 2. Foreclosure
________ 3. Substitution
________ 4. Other Liquidation (Repurchases, etc.)
________ 5. Nonliquidation
Reason:____________________________________
Address to which Master Servicer should
Deliver the Mortgage File:
__________________________________________
__________________________________________
__________________________________________
By:_______________________________________
(authorized signer)
Issuer:____________________________________
Address:___________________________________
___________________________________
Date:______________________________________
Master Servicer
---------------
Xxxxx Fargo Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
____________________________________ _________________
Signature Date
Documents returned to Master Servicer:
____________________________________ _________________
Master Servicer Date
EXHIBIT M
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
-----------------------
MASTR Adjustable Rate Mortgages Trust 2004-10
Mortgage Pass-Through Certificates
Series 2004-10
This Certification is being made pursuant to Section 9.12(a) of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") relating
to the above-referenced Series, among Mortgage Asset Securitization
Transactions, Inc., as depositor (the "Depositor"), UBS Real Estate Securities
Inc., as transferor (the "Transferor"), Xxxxx Fargo Bank, National Association,
as master servicer (the "Master Servicer"), trust administrator and custodian,
and JPMorgan Chase Bank, as trustee (the "Trustee"). Capitalized terms used but
not defined herein shall have the meanings assigned in the Pooling and Servicing
Agreement.
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution date reports filed
in respect of periods included in the year covered by this
annual report, of the Trust;
2. Based on my knowledge, the information in these reports, taken
as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last
day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to
be provided to the Trust Administrator by the Master Servicer
under the Pooling and Servicing Agreement for inclusion in
these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the
Servicers under the Servicing Agreements and based upon my
knowledge and the annual compliance review required under the
Servicing Agreements, and except as disclosed in the reports,
each Servicer has fulfilled its obligations under the related
Servicing Agreement; and
5. The reports disclose all significant deficiencies relating to
each Servicer's compliance with the minimum servicing
standards based upon the report provided by an independent
public accountant, after conducting a review in compliance
with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure as set forth in the related
Servicing Agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of each
Servicer, Depositor or Trustee].
Capitalized terms used but not defined herein have the meanings assigned
in the Pooling and Servicing Agreement among the Depositor, the Transferor, the
Master Servicer, the Trust Administrator, the Custodian and the Trustee.
_____________________________________
[Signature]
Name:________________________________
Title:_______________________________
