Exhibit 4
================================================================================
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.,
Depositor
UBS REAL ESTATE SECURITIES INC.,
Transferor
XXXXX FARGO BANK, N.A.,
Master Servicer and Custodian
and
JPMORGAN CHASE BANK,
Trustee
--------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2004
--------------------------------------
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
MORTGAGE PASS-THROUGH CERTIFICATES, Series 2004-2
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.....................................................
Section 1.02 Certain Calculations............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans....................................
Section 2.02 Acceptance by Trustee of the Mortgage Loans.....................
Section 2.03 Remedies for Breaches of Representations and Warranties.........
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans................................................
Section 2.05 [Reserved]......................................................
Section 2.06 Execution and Delivery of Certificates..........................
Section 2.07 REMIC Matters...................................................
Section 2.08 Covenants of the Master Servicer................................
Section 2.09 Representations and Warranties of the Master Servicer...........
Section 2.10 Representations and Warranties of the 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..................
Section 3.24 Master Servicer to Remit Prepayment Penalties
to the Transferor.............................................
ARTICLE IV
DISTRIBUTIONS AND SERVICING ADVANCES
Section 4.01 Advances........................................................
Section 4.02 Priorities of Distribution on the Certificates..................
Section 4.03 Allocation of Applied Realized Loss Amounts
to the Certificates...........................................
Section 4.04 Distribution Date Statements to Certificateholders..............
Section 4.05 Determination of LIBOR..........................................
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 Address
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
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase
of All Mortgage Loans.........................................
Section 9.02 Final Distribution on the Certificates...........................
Section 9.03 Additional Termination Requirements..............................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment........................................................
Section 10.02 Recordation of Agreement; Counterparts...........................
Section 10.03 Governing Law....................................................
Section 10.04 Intention of Parties.............................................
Section 10.05 Notices..........................................................
Section 10.06 Severability of Provisions.......................................
Section 10.07 Assignment.......................................................
Section 10.08 Limitation on Rights of Certificateholders.......................
Section 10.09 Inspection and Audit Rights......................................
Section 10.10 Certificates Nonassessable and Fully Paid........................
SCHEDULES
Schedule I Mortgage Loan Schedule...........................................
Schedule II Representations and Warranties as to
the Mortgage Loans............................................
EXHIBITS
Exhibit A-1-A-1 Form of Class 1-A-1 Certificate...............................
Exhibit A-1-A-2 Form of Class 1-A-2 Certificate...............................
Exhibit A-2-A-1 Form of Class 2-A-1 Certificate...............................
Exhibit A-3-A-1 Form of Class 3-A-1 Certificate ..............................
Exhibit A-M Form of Class M Certificates..................................
Exhibit A-R Form of Class LR or R Certificate.............................
Exhibit B Form of Class B Certificate...................................
Exhibit C [Reserved]....................................................
Exhibit D Form of Class X 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 Residual Certificate 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 February 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, N.A., a
national banking association, as master servicer (in such capacity, the "Master
Servicer") 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
Trustee shall elect that two segregated asset pools within the Trust Fund be
treated for federal income tax purposes as comprising two REMICs (each, a
"REMIC" or, in the alternative, the "Lower-Tier REMIC" and the "Upper-Tier
REMIC," respectively). Each Class of Certificates (other than the Class LR and
Class R Certificates), other than the right of each Class of LIBOR Certificates
to receive Basis Risk Carry Forward Amounts, represents ownership of a regular
interest in the Upper-Tier REMIC for purposes of the REMIC Provisions. The Class
LR Certificates represent ownership of the residual interest in the Lower-Tier
REMIC and the Class R Certificates represent ownership of the residual interest
in the Upper-Tier REMIC for purposes of the REMIC Provisions. The Startup Day
for each REMIC described herein is the Closing Date. The Upper-Tier REMIC shall
hold as assets the several classes of uncertificated Lower-Tier REMIC Regular
Interests, set out below. Each such Lower-Tier REMIC Regular Interest is hereby
designated as a regular interest in the Lower-Tier REMIC. The Class LT-1-A-1,
Class LT-1-A-2, Class LT-2-A-1, Class LT-3-A-1, Class LT-M-1, Class LT-M-2,
Class LT-M-3 and Class LT-B Interests are hereby designated the Lower-Tier REMIC
Accretion Directed Classes (the "Lower-Tier REMIC Accretion Directed Classes").
The Lower-Tier REMIC Accretion Directed Classes along with the Class LT-Accrual,
Class LT-Group 1(SUB), Class LT-Group 1, Class LT-Group 2(SUB), Class LT-Group
2, LT-Group 3(SUB), Class LT-Group 3 and Class LT-XX Interests are hereby
designated as the Lower-Tier REMIC Regular Interests. Each Class of LIBOR
Certificates represents beneficial ownership of a regular interest in the
Upper-Tier REMIC and the right to receive Basis Risk Carry Forward Amounts and
the Class X Certificates represent beneficial ownership of a regular interest in
the Upper-Tier REMIC and the Excess Reserve Fund Account, subject to the
obligation to pay the Basis Risk Carry Forward Amounts, which portions of the
Trust Fund shall be treated as a grantor trust.
The "latest possible maturity date" for federal income tax purposes of all
interests created hereby will be the Latest Possible Maturity Date. The Class LR
Certificates will represent the Class LR Interest, and the Class R Certificates
will represent the Class 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):
PASS- INTEGRAL MULTIPLES
INITIAL CLASS THROUGH MINIMUM IN EXCESS OF
PRINCIPAL BALANCE RATE DENOMINATION MINIMUM
----------------- ---- ------------ -------
Class 1-A-1 $14,253,000 (1) $25,000 $1
Class 1-A-2 $20,619,000 (2) $25,000 $1
Class 2-A-1 $47,222,000 (3) $25,000 $1
Class 3-A-1(9) $184,943,000 (4) $25,000 $1
Class M-1(9) $7,178,000 (5) $25,000 $1
Class M-2(9) $6,461,000 (5) $25,000 $1
Class M-3 $4,163,000 (5) $25,000 $1
Class B(9) $2,297,781 (5) $25,000 $1
Class X $0(6) (6) N/A N/A
Class LR(7) N/A N/A N/A N/A
Class R(8) N/A N/A N/A N/A
---------------------
(1) The Pass-Through Rate for the Class 1-A-1 Certificates for each
Distribution Date through and including the Distribution Date in December
2006 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), minus 0.957527348%. The Pass-Through Rate for the
Class 1-A-1 Certificates for each Distribution Date following the
Distribution Date in December 2006 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), minus 0.840%.
(2) The Pass-Through Rate for the Class 1-A-2 Certificates for each
Distribution Date through and including the Distribution Date in December
2006 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), minus 1.107527348%. The Pass-Through Rate for the
Class 1-A-2 Certificates for each Distribution Date following the
Distribution Date in December 2006 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), minus 0.840%.
(3) The Pass-Through Rate for the Class 2-A-1 Certificates for each
Distribution Date through and including the Distribution Date in December
2008 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), minus 1.197294004%. The Pass-Through Rate for the
Class 2-A-1 Certificates for each Distribution Date following the
Distribution Date in December 2008 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), minus 0.519%.
(4) The Pass-Through Rate for the Class 3-A-1 certificates will equal LIBOR
plus 0.39% (subject to an increase to 0.78% after the first Distribution
Date on which the Optional Termination may be exercised), subject to a
maximum per annum rate equal to the applicable Net WAC Rate.
(5) The Pass-Through Rate for each of the Class X-0, Xxxxx X-0, Class M-3 and
Class B Certificates will equal LIBOR plus 0.60%, 1.10%, 1.75% and 2.75%,
respectively (subject to increases to 1.20, 1.60%, 2.25% and 3.25%,
respectively, after the first Distribution Date on which the Optional
Termination may be exercised), subject to a maximum per annum rate equal to
the applicable Net WAC Rate.
(6) The Class X Certificates will represent a regular interest in the
Upper-Tier REMIC (the "Class X Interest"). As of any Distribution Date, the
Class X Interest shall have a notional principal balance equal to the
aggregate of the principal balances of the Lower-Tier REMIC Regular
Interests as of the first day of the related Interest Accrual Period. With
respect to any Interest Accrual Period, the Class X Interest shall bear
interest at a rate equal to the excess, if any, of the weighted average of
the interest rates on the Lower-Tier REMIC Regular Interests, over the
product of (i) 2 and (ii) the weighted average interest rates of the
Lower-Tier REMIC Regular Interests (other than Class LT-Group I(SUB), Class
LT-Group I, Class LT-Group II(SUB), Class LT-Group II, Class LT-Group
III(SUB), Class LT-Group III and Class LT-XX Interests), where the Class
LT-Accrual Interest is subject to a cap equal to zero and each Lower-Tier
REMIC Accretion Directed Class is subject to a cap equal to the
Pass-Through Rate on its Corresponding Class of Upper-Tier REMIC Regular
Interest. With respect to any Distribution Date, interest that so accrues
on the notional principal balance of the Class X Interest shall be deferred
in an amount equal to any increase in the Overcollateralized Amount on such
Distribution Date. Such deferred interest shall not itself bear interest.
The Class X Certificates also will represent beneficial ownership of the
Excess Reserve Fund Account, subject to the obligation to make payments
from the Excess Reserve Fund Account, in respect of Basis Risk Carry
Forward Amounts. For federal income tax purposes, the Trustee will treat a
Class X Certificateholder's obligation to make such payments as payments
made pursuant to an interest rate cap contract written by the Class X
Certificateholders in favor of each Class of LIBOR Certificates. Such
rights of the Class X Certificateholders and the LIBOR Certificateholders
shall be treated as held in a portion of the Trust Fund that is treated as
a grantor trust under subpart E, Part I of subchapter J of the Code.
(7) The Class LR Certificates will represent the sole class of the residual
interests in the Lower-Tier REMIC.
(8) The Class R Certificates will represent the sole class of the residual
interests in the Upper-Tier REMIC.
(9) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier REMIC Regular Interest but also the
right to receive payments from the Excess Reserve Fund Account in respect
of any Basis Risk Carry Forward Amounts. For federal income tax purposes,
the Trustee will treat a Certificateholder's right to receive payments
from the Excess Reserve Fund Account as payments made pursuant to an
interest rate cap contract written by the Class X Certificateholders.
Set forth below are designations of Classes of Certificates to the categories
used herein:
Book-Entry Certificates........ All Classes of Offered Certificates other than
the Physical Certificates.
ERISA-Restricted Certificates.. The Residual Certificates and the Private
Certificates.
Group 1 Certificates........... The Class 1-A-1 and Class 1-A-2 Certificates.
Group 2 Certificates........... The Class 2-A-1 Certificates.
Group 3 Certificates........... The Class 3-A-1 Certificates.
LIBOR Certificates............. The Class 3-A-1 and Subordinate 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 X and the Residual Certificates.
Rating Agencies................ Xxxxx'x and S&P.
Regular Certificates........... All Classes of Certificates, other than the
Residual Certificates.
Residual Certificates.......... The Class LR and Class R Certificates.
Senior Certificates............ The Class 1-A-1, Class 1-A-2, Class 2-A-1
and Class 3-A-1 Certificates.
Subordinate Certificates....... The Class M-1, Class M-2, Class M-3 and
Class B Certificates.
Defined terms and provisions herein relating to statistical rating
agencies not designated above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
Accrued Certificate Interest: With respect to any Distribution Date and
any interest-bearing Class, 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(a)(viii).
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.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
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 Held for Future Distribution: As to any Distribution Date and any
Mortgage Loan, 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 Groups 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.
Applied Realized Loss Amount: With respect to any Distribution Date, the
amount, if any, by which the aggregate Class Principal Balance of the Offered
Certificates after distributions of principal on such Distribution Date exceeds
the aggregate Scheduled Principal Balance of the Mortgage Loans for such
Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the
time of the origination of such Mortgage Loan; and (ii) with respect to a
Refinancing Mortgage Loan, the value of the Mortgaged Property based upon the
appraisal made at the time of the origination of such Refinancing Mortgage Loan
as modified by an updated appraisal.
Assignment Agreements: The following Assignment, Assumption and
Recognition Agreements, each dated as of February 26, 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
Countrywide Home Loans, Inc., the Transferor and Mortgage Asset Securitization
Transactions, Inc.;
(b) The Assignment, Assumption and Recognition Agreement, among Xxxxxx
Savings and Loan Association, F.A., the Transferor and Mortgage Asset
Securitization Transactions, Inc.;
(c) The Assignment, Assumption and Recognition Agreement, among GMAC
Mortgage Corporation, the Transferor and Mortgage Asset Securitization
Transactions, Inc.; and
(d) The Assignment, Assumption and Recognition Agreement, among GreenPoint
Mortgage Funding, 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: As to any Distribution Date, the sum of (a) the aggregate
amount held in the Collection Account at the close of business on the related
Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business of the related Distribution
Account Deposit Date, attributable to the Mortgage Loans net of amounts (i)
permitted to be withdrawn from the Collection Account pursuant to clauses
(i)-(viii) inclusive and clauses (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 Mortgage Loans and (iii) any amounts representing Fair Market
Value Excess with respect to a Mortgage Loan received in connection with the
termination of the Trust Fund pursuant to Section 9.01 hereof, (b) the amount of
the Advances related to the Mortgage Loans, and (c) in connection with Defective
Mortgage Loans, the aggregate of the Purchase Prices and Substitution Adjustment
Amounts deposited on the related Distribution Account Deposit Date.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Basic Principal Distribution Amount: With respect to any Distribution Date
and the Offered Certificates, the excess of (i) the Principal Remittance Amount
for such Distribution Date over (ii) the Excess Overcollateralized Amount, if
any, for such Distribution Date, but not less than zero.
Basis Risk Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon the Net WAC Rate, the excess of (i) the amount of interest such Class
of LIBOR Certificates would otherwise be entitled to receive on such
Distribution Date had such rate been calculated without giving effect to the
applicable Net WAC Rate, over (ii) the amount of interest payable on such Class
of LIBOR Certificates at the applicable Net WAC Rate for such Distribution Date
and (B) the Basis Risk Carry Forward Amount for such Class of LIBOR Certificates
for all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal to the Pass-Through Rate for such Class of LIBOR
Certificates for such Distribution Date without giving effect to the applicable
Net WAC Rate.
Basis Risk Payment: For any Distribution Date, an amount equal to the
aggregate of the Basis Risk Carry Forward Amounts for such Distribution Date;
provided, however, that, with respect to any Distribution Date, the payment
cannot exceed the Class X Distributable Amount (prior to any reduction for Basis
Risk Payments).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which banking institutions in the City of New York, New York, Minnesota,
Maryland, or the cities in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee on behalf
of the Trust and authenticated by the Trustee in substantially the forms
attached hereto as Exhibits A through E.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: With respect to any Certificate at any
date, the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof minus
the sum of (i) all distributions of principal previously made with respect
thereto and (ii) all Applied Realized Loss Amounts allocated to the Subordinate
Certificates pursuant to Section 4.03.
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Master Servicer or the Depositor or any affiliate of the Master
Servicer or the Depositor, as applicable, shall be deemed not to be Outstanding
and the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; provided, however, that, if any such
Person (including the Master Servicer or the Depositor) owns 100% of the
Percentage Interests evidenced by a Class of Certificates, such Certificates
shall be deemed to be Outstanding for purposes of any provision hereof that
requires the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to rely
conclusively on a certification of the Master Servicer or the Depositor or any
affiliate of the Master Servicer or the Depositor, as applicable, in determining
which Certificates are registered in the name of an affiliate of the Master
Servicer or the Depositor.
Certification: The certification signed by a Master Servicing Officer
pursuant to Section 8.12(d), in substantially the form attached hereto as
Exhibit M.
Class: All Certificates bearing the same class designation as set forth in
the Preliminary Statement, each Lower-Tier REMIC Regular Interest and Upper-Tier
REMIC Regular Interest.
Class B Certificates: As specified in the Preliminary Statement.
Class B Principal Distribution Amount: With respect to any Distribution
Date, the excess of (i) the sum of (A) the aggregate Class Principal Balances of
the Senior Certificates (after taking into account distribution of the Senior
Certificates Principal Distribution Amount on such Distribution Date), (B) the
Class Principal Balance of the Class M-1 Certificates (after taking into account
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (C) the Class Principal Balance of the Class M-2 Certificates (after
taking into account distribution of the Class M-2 Principal Distribution Amount
on such Distribution Date), (D) the Class Principal Balance of the Class M-3
Certificates (after taking into account distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date) and (E) the Class Principal
Balance of the Class B Certificates immediately prior to such Distribution Date
over (ii) the lesser of (A) 98.50% of the aggregate Scheduled Principal Balance
of the Mortgage Loans as of the last day of the related Due Period for such
Distribution Date and (B) the excess, if any, of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period for such Distribution Date over the product of (1) 0.75% and (2) the
Cut-Off Date Pool Balance.
Class M-1 Principal Distribution Amount: With respect to any Distribution
Date, the excess of (i) the sum of (A) the aggregate Class Principal Balances of
the Senior Certificates (after taking into account distribution of the Senior
Certificates Principal Distribution Amount on such Distribution Date), and (B)
the Class Principal Balance of the Class M-1 Certificates immediately prior to
such Distribution Date over (ii) the lesser of (A) 89.50% of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the last day of the
related Due Period and (B) the excess, if any, of the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period for such Distribution Date over the product of (1) 0.75% and (2) the
Cut-Off Date Pool Balance.
Class M-2 Principal Distribution Amount: With respect to any Distribution
Date, the excess of (i) the sum of (A) the aggregate Class Principal Balances of
the Senior Certificates (after taking into account distribution of the Senior
Certificates Principal Distribution Amount on such Distribution Date), (B) the
Class Principal Balance of the Class M-1 Certificates (after taking into account
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), and (C) the Class Principal Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 94.00%
of the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
last day of the related Due Period and (B) the excess, if any, of the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the last day of the
related Due Period for such Distribution Date over the product of (1) 0.75% and
(2) the Cut-Off Date Pool Balance.
Class M-3 Principal Distribution Amount: With respect to any Distribution
Date, the excess of (i) the sum of (A) the aggregate Class Principal Balances of
the Senior Certificates (after taking into account distribution of the Senior
Certificates Principal Distribution Amount on such Distribution Date), (B) the
Class Principal Balance of the Class M-1 Certificates (after taking into account
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (C) the Class Principal Balance of the Class M-2 Certificates (after
taking into account distribution of the Class M-2 Principal Distribution Amount
on such Distribution Date), and (D) the Class Principal Balance of the Class M-3
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) 96.90% of the aggregate Scheduled Principal Balance of the Mortgage Loans as
of the last day of the related Due Period and (B) the excess, if any, of the
aggregate Scheduled Principal Balance of the Mortgage Loans as of the last day
of the related Due Period for such Distribution Date over the product of (1)
0.75% and (2) the Cut-Off Date Pool Balance.
Class LR Interest: The sole class of "residual interest" in Lower-Tier
REMIC.
Class Principal Balance: With respect to any Class of Certificates (and
the Corresponding Upper-Tier REMIC Regular Interest) 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 R Interest: The sole class of "residual interest" in the Upper-Tier
REMIC.
Class X Distributable Amount: On any Distribution Date, the sum of (i) as
a distribution in respect of interest, the amount of interest that has accrued
on the Class X Interest and not applied as an Extra Principal Distribution
Amount on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus (ii) as a distribution in
respect of principal, any portion of the principal balance of the Class X
Interest which is distributable as an Overcollateralization Reduction Amount,
minus (iii) any amounts paid as a Basis Risk Payment.
Class X Interest: The Upper-Tier REMIC Regular Interest represented by the
Class X Certificates as specified and described in the Preliminary Statement and
the related footnote thereto.
Clean-up Call Mortgage Loan Price: With respect to each Mortgage Loan (not
including REO Properties) to be purchased pursuant to Section 9.01(a) hereof,
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 9.01(a) hereof, 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: February 26, 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 "JPMorgan Chase Bank, in trust for
the registered holders of Mortgage Asset Securitization Transactions, Inc.,
MASTR Adjustable Rate Mortgages Trust 2004-2 Mortgage Pass-Through Certificates
Series 2004-2."
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.
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 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: 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 2004-2, 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.
Corresponding Class: The Class of interest in any REMIC created under this
Agreement that corresponds to the Class of interests in another such REMIC or to
a Class of Certificates in the manner set out below:
CORRESPONDING CORRESPONDING
LOWER-TIER UPPER-TIER REMIC CORRESPONDING CLASS OF
CLASS DESIGNATION REGULAR INTEREST CERTIFICATES
----------------- ---------------- ------------
Class LT1-A-1 Class 1-A-1 Class 1-A-1
Class LT1-A-2 Class 1-A-2 Class 1-A-2
Class LT2-A-1 Class 2-A-1 Class 2-A-1
Class LT3-A-1 Class 3-A-1 Class 3-A-1
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-Group 1(SUB) N/A N/A
Class LT-Group 1 N/A N/A
Class LT-Group 2(SUB) N/A N/A
Class LT-Group 2 N/A N/A
Class LT-Group 3(SUB) N/A N/A
Class LT-Group 3 N/A N/A
Class LT-XX N/A N/A
N/A Class X Class X
Class LT-Accrual N/A N/A
Corresponding Upper-Tier REMIC Regular Interest: As defined in Section
2.07.
Countrywide: Countrywide Home Loans Servicing LP, and its successors and
assigns, in its capacity as Servicer of the Countrywide Mortgage Loans.
Countrywide Mortgage Loans: The Mortgage Loans for which Countrywide is
listed as "Servicer" on the Mortgage Loan Schedule.
Countrywide Servicing Agreement: Solely with respect to the Countrywide
Mortgage Loans, the Mortgage Loan Purchase and Servicing Agreement, dated as of
November 1, 2001, between the Transferor, as purchaser, and Countrywide, as
seller and as servicer (as successor to Countrywide Home Loans, Inc. by an
assignment dated January 1, 2001, as the same may be amended or supplemented),
as the same may be amended from time to time, and any assignments and
conveyances related to the Countrywide Mortgage Loans.
Custodian: Xxxxx Fargo, with respect to those Mortgage Loans for which
Xxxxx Fargo is listed under the heading "Custodian" in the Mortgage Loan
Schedule, and which were not originated by WMMSC or an affiliate thereof, and
any successor thereto.
Cut-off Date: With respect to the Mortgage Loans other than the Alternate
Cut-Off Date Mortgage Loans, February 1, 2004. With respect to the Alternate
Cut-Off Date Mortgage Loans, March 1, 2004.
Cut-off Date Pool Balance: $287,136,782 with respect to the Mortgage
Loans.
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.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or Section 2.03.
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 Trustee pursuant to Section 3.07 in the name of the Trustee for the
benefit of the Certificateholders and designated "JPMorgan Chase Bank, in trust
for registered holders of MASTR Adjustable Rate Mortgages Trust 2004-2 Mortgage
Pass-Through Certificates, Series 2004-2." 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 March 2004.
Distribution Date Statement: The statement delivered to the
Certificateholders pursuant to Section 4.04.
Xxxxxx: Xxxxxx Savings and Loan Association, F.A., a federal association,
and its successors and assigns, in its capacity as Servicer of the Xxxxxx
Mortgage Loans.
Xxxxxx Mortgage Loans: The Mortgage Loans for which Xxxxxx is listed as
"Servicer" on the Mortgage Loan Schedule.
Xxxxxx Servicing Agreement: Solely with respect to the Xxxxxx Mortgage
Loans, the Master Loan Purchase and Servicing Agreement, dated as of August 1,
2002, between the Transferor, as purchaser, and Xxxxxx, as seller and as
servicer, as the same may be amended from time to time, and any assignments and
conveyances related to the Xxxxxx Mortgage Loans.
Due Date: With respect to any Distribution Date, the first day of the
month in which the related Distribution Date occurs.
Due Period: With respect to any Distribution Date, the period commencing
on the second day of the calendar month preceding the month in which the
Distribution Date occurs and ending on the first day of the calendar month in
which the Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a non-interest bearing segregated trust
account or accounts maintained with (a) the trust department of a federal or
state chartered depository institution or (b) a trust company, acting in its
fiduciary capacity or (iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
Eligible Substitute Mortgage Loan: With respect to a Mortgage Loan
substituted by the Transferor for a Deleted Mortgage Loan, a Mortgage Loan which
must, on the date of such substitution, (i) have a Scheduled Principal Balance,
after deduction of the principal portion of the Scheduled Payment due in the
month of substitution (or, in the case of a substitution of more than one
mortgage loan for a Deleted Mortgage Loan, an aggregate principal balance), not
in excess of, and not more than 10% less than the Scheduled Principal Balance of
the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower than,
and not more than 1% per annum higher than, that of the Deleted Mortgage Loan;
(iii) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (iv) have the same index and Periodic Rate Cap as that of the Deleted
Mortgage Loan and a gross margin not more than 1% per annum higher or lower than
that of the Deleted Mortgage Loan; (v) does not permit conversion of the related
interest rate to a fixed interest rate; (vi) have a Loan-to-Value Ratio no
higher than that of the Deleted Mortgage Loan; (vii) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; (viii) comply with each representation and warranty set
forth in Section 2.03 hereof; (ix) be the same credit grade category as the
Deleted Mortgage Loan; (x) have the same prepayment penalty term, and (xi) 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 Overcollateralized Amount: With respect to any Distribution Date
and the Mortgage Loans, the excess, if any, of (a) the Overcollateralized Amount
for such Distribution Date over (b) the Specified Overcollateralized Amount for
such Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.07 in the name of the Trustee
for the benefit of the Certificateholders and designated "JPMorgan Chase Bank in
trust for the registered holders of MASTR Adjustable Rate Mortgages Trust
2004-2, Mortgage Pass-Through Certificates Series 2004-2." Funds in the Excess
Reserve Fund Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement. Amounts on deposit in the Excess
Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended from time to
time.
Extra Principal Distribution Amount: As of any Distribution Date and the
Offered Certificates, the lesser of (x) the Total Monthly Excess Spread for such
Distribution Date and (y) the Overcollateralization Deficiency for such
Distribution Date.
Fair Market Value Call Price: With respect to each Mortgage Loan (not
including REO Properties) to be purchased pursuant to Section 9.01(a) hereof,
the fair market value of such Mortgage Loan (to be determined pursuant to a bid
procedure set forth in Section 9.01(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 9.01(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
Available Funds, but shall instead be distributed directly to the Holders of the
Class LR Certificates pursuant to Section 4.02(a)(x) 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: With respect to the Custodian, the certification
required to be delivered by such 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.
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 the same may be 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 (a) the right of the LIBOR Certificates to receive Basis Risk Carry
Forward Amounts and (b) the Excess Reserve Fund Account and the beneficial
interest of the Class X Certificates with respect thereto, subject to the
obligation to pay Basis Risk Carry Forward Amounts.
GreenPoint: GreenPoint Mortgage Funding, Inc., and its successors and
assigns, in its capacity as Servicer of the GreenPoint Mortgage Loans, as
applicable.
GreenPoint Mortgage Loans: The Mortgage Loans for which GreenPoint is
listed as "Servicer" on the Mortgage Loan Schedule.
GreenPoint Servicing Agreement: Solely with respect to the GreenPoint
Mortgage Loans, the Master Loan Purchase and Servicing Agreement, dated as of
March 1, 2003, between the Transferor, as purchaser, and GreenPoint, as seller
and servicer, as the same may be amended from time to time, and any assignment
and conveyance related to the GreenPoint Mortgage Loans.
Group 1 Certificates: The Class 1-A-1 and Class 1-A-2 Certificates,
collectively.
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 Class 1-A-1 and Class 1-A-2
Certificates.
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 Class Principal Balances of the Class 2-A-1 Certificates.
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 Class Principal Balances of the Class 3-A-1 Certificates.
Group Pool Principal Balance: Any of the Group 1 Pool Principal Balance,
Group 2 Pool Principal Balance or Group 3 Pool Principal Balance, as applicable.
Group Subordinate Amount: Any of the Group 1 Subordinate Amount, Group 2
Subordinate Amount or Group 3 Subordinate Amount.
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 Certification: With respect to the Custodian, the certification
required to be executed by such 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 LIBOR Rate: 1.09%.
Initial Transferor Required Deposit: The amount required to be paid by the
Transferor pursuant to Section 2.01, 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 March 2004 had the Cut-off Date for
such Mortgage Loans been February 1, 2004 (instead of March 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 Offered
Certificates (other than the LIBOR Certificates) and the 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 February 1, 2004, to and including the last
day of such immediately preceding month, and with respect to each Class of LIBOR
Certificates, and any Distribution Date, the period from and including the 25th
day of the month preceding the month in which the relevant Distribution Date
occurs (or, for the initial Distribution Date, the Closing Date) to and
including the 24th day of the month in which that Distribution Date occurs.
Latest Possible Maturity Date: With respect to any Certificates and the
Lower-Tier REMIC Regular Interests, the Distribution Date following the first
anniversary of the scheduled maturity date of the Mortgage Loan in the related
Loan Group having the latest scheduled maturity date as of the Cut-off Date.
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."
LIBOR: As to any Distribution Date, the arithmetic mean of the London
Interbank offered rate quotations for one month U.S. Dollar deposits, as
determined by the Master Servicer in accordance with Section 4.05.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: As to any Distribution Date and any LIBOR
Certificates, the second London Business Day prior to the beginning of the
applicable Interest Accrual Period for such Class and such Distribution Date.
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the
applicable Servicer or the Master Servicer, as the case may be, has determined
(in accordance with the applicable 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 or LTV Ratio: With respect to any Mortgage Loan and as
to any date of determination, the fraction (expressed as a percentage) the
numerator of which is the principal balance of the related Mortgage Loan at such
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
London Business Day: Any Business Day on which banks are open for dealing
in foreign currency and exchange in London, England and the City of New York.
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 Accretion Directed Classes: As described in the
Preliminary Statement.
Lower-Tier REMIC Interest: Any one of the Lower-Tier REMIC Regular
Interests or the Class LR Interest.
Lower-Tier REMIC Interest Rate: As defined in Section 2.07(b).
Lower-Tier REMIC Principal Amount: The principal balance of each
Lower-Tier REMIC Regular Interest, determined as set forth in Section 2.07(b).
The Lower-Tier REMIC Principal Amount shall be computed to at least eight (8)
decimal places.
Lower-Tier REMIC Regular Interest: Each of the Class LT-1-A-1, Class
LT-1-A-2, Class LT-2-A-1, Class LT-3-A-1, Class LT-M-1, Class LT-M-2, Class
LT-M-3, Class LT-B, Class LT-Group 1(SUB), Class LT-Group 1, Class LT-Group
2(SUB), Class LT-Group 2, Class LT-Group 3(SUB), Class LT-Group 3, Class LT-XX
and Class LT-Accrual Interests as described in the Preliminary Statement.
Lower-Tier Subordinated Balance Ratio: The ratio among the Lower-Tier
REMIC Principal Amounts of the Class LT-Group 1(SUB) Interest, Class LT-Group
2(SUB) Interest and Class LT-Group 3(SUB) Interest equal to the ratio among the
Group 1 Subordinate Amount, the Group 2 Subordinate Amount and the Group 3
Subordinate Amount, respectively.
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 or Xxxxx Fargo: Xxxxx Fargo Bank, N.A., a national banking
association, and its successors and assigns, in its capacity as Master Servicer
hereunder.
Master Servicer Event of Termination: As defined in Section 7.01 hereof.
Master Servicing Compensation: All investment earnings on amounts on
deposit in the Collection Account and the Distribution Account other than the
WMMSC Investment Earnings Account.
Master Servicing Officer: Any officer of the Master Servicer involved in,
or responsible for, the administration and master servicing of the Mortgage
Loans.
MERS: As defined in Section 2.01.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b), the address for notices to Moody's shall be
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Monitoring Group, or such other address as
Moody's may hereafter furnish to each party to this Agreement.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on an estate in fee simple or leasehold interest in real property securing
a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Custodian to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement,
dated as of February 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; (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) such loan sale date; (35) a
code indicating the Loan Group such Mortgage Loan is included in; (36) the
initial Servicer; and (37) a code indicating the originator of the Mortgage
Loan; (38) a code indicating whether such Mortgage Loan is an Alternate Cut-Off
Date Mortgage Loan; and (39) a code indicating whether the Mortgage Loan is a
Cooperative 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, 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.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less (i) the related Servicing Fee Rate,
and (ii) the Lender-Paid Mortgage Insurance Rate, as applicable.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the amount of Compensating Interest available
for such Distribution Date.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net WAC Rate: With respect to the LIBOR Certificates, a maximum per annum
rate equal to the lesser of (i) (A) with respect to the Class 3-A-1 Certificate,
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) and (B)
with respect to the Subordinate Certificates, a per annum rate equal to the
weighted average (weighted on the basis of the portion of the aggregate Group
Subordinate Amount attributable to each Loan Group as of the Business Day
immediately prior to that Distribution Date) of the Net Mortgage Rates on the
Mortgage Loans in each Loan Group, weighted on the basis of the respective
Scheduled Principal Balances, as of the first day of the related Interest
Accrual Period (after taking into account scheduled payments of principal on
that date), and (ii) 11%. For federal income tax purposes, the economic
equivalent of the Net WAC Rate in clause (i)(B) above shall be expressed as the
weighted average of the Lower-Tier REMIC Interest Rate on (a) the Class LT-Group
I(SUB), subject to a cap and floor equal to the Lower-Tier REMIC Interest Rate
of the Class LT-Group I Interest, (b) the Class LT-Group II(SUB), subject to a
cap and floor equal to the Lower-Tier REMIC Interest Rate of the Class LT-Group
II Interest, and (c) the Class LT-Group III(SUB), subject to a cap and floor
equal to the Lower-Tier REMIC Interest Rate of the Class LT-Group III Interest,
weighted on the basis of the respective Lower-Tier REMIC Principal Amounts of
the Class LT-Group I(SUB), Class LT-Group II(SUB) and Class LT-Group III(SUB),
respectively.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the applicable Servicer or the Master Servicer, as the
case may be, that, in the good faith judgment of the applicable Servicer or the
Master Servicer, will not be ultimately recoverable by the applicable Servicer
or the Master Servicer from the related Mortgagor, related Liquidation Proceeds
or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii) if provided for in
this Agreement, signed by a Master Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor or the Master Servicer, including in-house counsel, reasonably
acceptable to the Trustee; provided, however, that, with respect to the
interpretation or application of the REMIC Provisions, such counsel must (i) in
fact be independent of the Depositor and the Master Servicer, (ii) not have any
direct financial interest in the Depositor or the Master Servicer or in any
affiliate of either, and (iii) not be connected with the Depositor or the Master
Servicer as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Optional Termination: The termination of the Trust created hereunder in
connection with the purchase of the Mortgage Loans pursuant to Section 9.01(a)
hereof.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(a) Certificates theretofore canceled by the Trustee or delivered to the
Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Scheduled Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full prior to such Due Date and that did not become a
Liquidated Loan prior to such Due Date.
Overcollateralization Deficiency: With respect to any Distribution Date,
the excess, if any, of (a) the Specified Overcollateralized Amount applicable to
such Distribution Date over (b) the Overcollateralized Amount applicable to such
Distribution Date.
Overcollateralization Reduction Amount: With respect to any Distribution
Date, an amount equal to the lesser of (a) the Excess Overcollateralized Amount
and (b) the Total Monthly Excess Spread.
Overcollateralized Amount: As of any Distribution Date, the excess, if
any, of (a) the aggregate Scheduled Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Principal Balances of
the Offered Certificates as of such Distribution Date (after giving effect to
the distribution of the Principal Remittance Amount on such Certificates on such
Distribution Date).
Ownership Interest: As to any Residual Certificate, any ownership interest
in such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
Par Call Price: With respect to each Mortgage Loan (not including REO
Properties) to be purchased pursuant to Section 9.01(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 evidenced by a signed writing delivered by each Rating
Agency (as confirmed in writing by the applicable Rating Agency);
(i) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency and restricted to obligations issued
or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations;
(j) any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to instruments
that otherwise would constitute Permitted Investments hereunder, including
any such fund that is managed by the Trustee or Master Servicer or any
affiliate of the Trustee or Master Servicer or for which the Trustee or
Master Servicer or any affiliate of the Trustee or Master Servicer acts as
an adviser as long as such fund is rated in at least the highest rating
category by each Rating Agency (if so rated by such Rating Agency;
provided, however, if S&P is a Rating Agency, then such mutual fund, money
market fund, common trust fund or other pooled investment vehicle shall
have been rated by S&P); and
(k) such other investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
provided, that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument.
Permitted Transferee: Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, international organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any State thereof or the
District of Columbia, an estate whose income is subject to United States federal
income tax regardless of its source or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more Persons described in this clause (v) have the authority to
control all substantial decisions of the Trust (or, to the extent provided in
applicable Treasury Regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as United States persons) unless such
Person has furnished the transferor and the Trustee with a duly completed
Internal Revenue Service Form W-8ECI or any applicable successor form, (vi) any
Person with respect to whom income on any Residual Certificate is attributable
to a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other Person and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Residual Certificate to such
Person may cause either 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 Shortfall: As to any Distribution Date, Mortgage Loan
and Principal Prepayment received or, in the case of partial Principal
Prepayments, applied, during the applicable Prepayment Period, the amount, if
any, by which one month's interest at the related Net Mortgage Rate on such
Principal Prepayment exceeds the amount of interest at the Net Mortgage Rate
paid in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date, 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 Distribution Amount: For any Distribution Date and any Class of
Offered Certificates, the sum of (i) the Basic Principal Distribution Amount for
such Distribution Date and (ii) the Extra Principal Distribution Amount for such
Distribution Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments will be applied by the applicable Servicers in accordance
with the terms of the related Servicing Agreements and in accordance with the
terms of the related Mortgage Note, and to the extent the Mortgage Note does not
provide otherwise, shall be applied in the Prepayment Period preceding the
receipt thereof.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date an
amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each scheduled payment of principal on a
Mortgage Loan due during such Due Period and received or advanced by the related
Servicer prior to the related Servicer Remittance Date (including the portion of
Insurance Proceeds allocable to principal), and all Principal Prepayments
received during the related Prepayment Period, (ii) the Liquidation Proceeds on
the Mortgage Loans allocable to principal actually collected by the related
Servicer during the related Prepayment Period, (iii) the portion of the purchase
price allocable to principal with respect to each Deleted Mortgage Loan that is
a Mortgage Loan, the repurchase obligation for which arose during the related
Prepayment Period, that was repurchased during the period from the prior
Distribution Date through the Servicer Remittance Date for the current
Distribution Date, (iv) the principal portion of all Substitution Adjustment
Amounts with respect to the substitutions of Mortgage Loans that occur during
the calendar month in which such Distribution Date occurs, (v) any Recoveries
received during the related Prepayment Period and (vi) the allocable portion of
the proceeds received with respect to the termination of the Trust Fund (to the
extent such proceeds relate to principal on the Mortgage Loans).
Private Certificate: As specified in the Preliminary Statement.
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 February 25, 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
the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of such purchase, (ii) accrued and unpaid interest thereon at the
applicable Mortgage Rate from the date through which interest was last paid by
the Mortgagor or the applicable Servicer or the Master Servicer, as the case may
be, made an Advance in respect thereof (which was not reimbursed) to the Due
Date in the month in which the Purchase Price is to be distributed to
Certificateholders, (iii) in the event that such Mortgage Loan is repurchased by
the Transferor due to a breach of the representations and warranties listed in
clauses (xiii) or (xiv) of Schedule II to this Agreement, any costs and damages
incurred by the Trust in connection with a violation of a predatory or abusive
lending law with respect to such Loan, less 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. 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.
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, (ii) make certain agreements with respect to such Cooperative Loan.
Record Date: With respect to any Distribution Date and (i) any Class of
Certificates (other than the LIBOR Certificates), the close of business on the
last Business Day of the month preceding the month in which such Distribution
Date occurs, and (ii) the LIBOR Certificates, the Business Day immediately
preceding such Distribution Date.
Recovery: With respect to any Distribution Date and any Mortgage Loan, any
amount received in respect of principal on such Mortgage Loan during the related
Prepayment Period which consists of unexpected recoveries related to a
Liquidated Loan including, but not limited to, unanticipated insurance
settlements, tax refunds or mortgage bankruptcy distributions.
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.
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, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
having direct responsibility for the administration of this Agreement and also
to whom, with respect to a particular matter, such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Restricted Classes: As defined in Section 4.02(d).
S&P: Standard and Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor thereto. If S&P is designated as a Rating
Agency in the Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to S&P shall be Standard and Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Monitoring Group, or such other address
as S&P may hereafter furnish to each party to this Agreement.
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.
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.
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.
Senior Certificates: As specified in the Preliminary Statement.
Senior Certificates Principal Allocation Percentage: For any Distribution
Date, the percentage equivalent of a fraction, determined as follows:
(i) with respect to the Group 1 Certificates, a fraction, the
numerator of which is the portion of the Principal Remittance Amount for
such Distribution Date that is attributable to the principal received or
advanced on the Group 1 Mortgage Loans and the denominator of which is the
Principal Remittance Amount for such Distribution Date;
(ii) with respect to the Class 2-A-1 Certificates, a fraction, the
numerator of which is the portion of the Principal Remittance Amount for
such Distribution Date that is attributable to the principal received or
advanced on the Group 2 Mortgage Loans and the denominator of which is the
Principal Remittance Amount for such Distribution Date; and
(iii) with respect to the Class 3-A-1 Certificates, a fraction, the
numerator of which is the portion of the Principal Remittance Amount for
such Distribution Date that is attributable to the principal received or
advanced on the Group 3 Mortgage Loans and the denominator of which is the
Principal Remittance Amount for such Distribution Date.
Senior Certificates Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Principal Balances of
the Senior Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 84.50% of the aggregate Scheduled Principal Balance of the
Mortgage Loans as of the last day of the related Due Period or (B) the excess,
if any, of the aggregate Scheduled Principal Balances of the Mortgage Loans as
of the last day of the related Due Period over the product of (1) 0.75% and (2)
the Cut-Off Date Pool Balance.
Senior Enhancement Percentage: With respect to any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Class Principal
Balance of the Subordinate Certificates and (ii) the Overcollateralized Amount
(in each case after taking into account the distributions of the Senior
Certificates Principal Distribution Amount for such Distribution Date) by (y)
the aggregate Scheduled Principal Balance of the Mortgage Loans as of the last
day of the related Due Period for such Distribution Date.
Senior Specified Enhancement Percentage: As of any date of determination,
15.50%.
Servicer: Each of Countrywide Home Loans Servicing LP, Xxxxxx Savings and
Loan Association, F.A., GMAC Mortgage Corporation and GreenPoint Mortgage
Funding, Inc., as applicable.
Servicer Remittance Date: With respect to any Servicer (other than WMMSC)
and any Distribution Date, no later than the 18th calendar day of each month or
the immediately following Business Day or the immediately preceding Business
Day, as specified in the related Servicing Agreement. With respect to WMMSC, as
to any Distribution Date, the 24th day of each calendar month, or if such 24th
day is not a Business Day, the immediately preceding Business Day.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its master servicing obligations or the applicable Servicer, as the case may be,
of its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer or the applicable Servicer, as the
case may be, pursuant to Section 3.11 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.09.
Servicing Agreements:
---------------------
(a) the Countrywide Servicing Agreement;
(b) the Xxxxxx Servicing Agreement;
(c) the GMAC Servicing Agreement; and
(d) the GreenPoint 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.
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan (i) with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, (ii) two months or more past due (without giving effect to any grace
period), (iii) in foreclosure, (iv) for which the related Mortgaged Property has
become REO Property and (v) for which the related Mortgagor has filed for
bankruptcy.
Similar Law: As defined in Section 5.02(b) hereof.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an amount
equal to 0.75% of the Cut-Off Date Pool Balance of the Mortgage Loans; on and
after the Stepdown Date, an amount equal to 1.50% of the aggregate Scheduled
Principal Balance of the Mortgage Loans for that Distribution Date, subject,
until the Certificate Principal Balance of each Class of Offered Certificates
has been reduced to zero, to a minimum amount equal to 0.75% of the Cut-Off Date
Principal Balance of the Mortgage Loans; provided, however, that if, on any
Distribution Date, a Trigger Event has occurred, the Specified
Overcollateralized Amount will not be reduced to the applicable percentage of
the then Scheduled Principal Balance of the Mortgage Loans for that Distribution
Date but instead remain the same as the prior period's Specified
Overcollateralized Amount until the Distribution Date on which a Trigger Event
is no longer occurring.
Startup Day: The Closing Date.
Stepdown Date: The earlier to occur of (a) the date on which the aggregate
Class Principal Balances of the Senior Certificates have been reduced to zero,
and (b) the later to occur of (i) the Distribution Date in March 2007, and (ii)
the first Distribution Date on which the Senior Enhancement Percentage is
greater than or equal to the Senior Specified Enhancement Percentage.
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.
Substitution Adjustment Amount: The meaning ascribed to such term pursuant
to Section 2.03.
Tax Matters Person: The Holder of (i) the Class LR and (ii) the Class 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.
Total Monthly Excess Spread: As to any Distribution Date, an amount equal
to the excess if any, of (i) the interest collected (prior to the Servicer
Remittance Date) or advanced on the Mortgage Loans for Due Dates in the related
Due Period (net of the related Servicing Fee) over (ii) the interest payable to
the Offered Certificates on such Distribution Date.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transferor: UBS Real Estate Securities Inc. (f/k/a UBS Warburg Real Estate
Securities Inc.), a Delaware corporation, seller of the Mortgage Loans to the
Depositor pursuant to the Mortgage Loan Purchase Agreement.
Trigger Event: After the Stepdown Date, a Trigger Event exists if (i) the
quotient (expressed as a percentage) of (x) the rolling three month average of
the outstanding principal balances of 60+ Day Delinquent Mortgage Loans,
(including each Mortgage Loan in foreclosure, each Mortgage Loan for which the
related Mortgagor has filed for bankruptcy after the Closing Date and each
Mortgage Loan, related to a REO Property), divided by (y) the aggregate
outstanding principal balance of the Mortgage Loans as of the last day of the
related Due Period, equals or exceeds 6.00% of the prior period's Senior
Enhancement Percentage or (ii) the quotient (expressed as a percentage) of (x)
the aggregate amount of Realized Losses on the Mortgage Loans incurred since the
Cut-off Date through the last day of the related Prepayment Period divided by
(y) the Cut-off Date Pool Balance exceeds the applicable percentages set forth
below with respect to any Distribution Date:
DISTRIBUTION DATE OCCURRING IN LOSS PERCENTAGE
------------------------------ ---------------
March 2007 through February 2008 1.00%
March 2008 through February 2009 1.50%
March 2009 and thereafter 1.75%
Trust: As defined in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loan Purchase Agreement, the Servicing Agreements 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 (other than, in the case of the Collection Account, any prepayment
penalties deposited therein, which shall be retained by the Transferor); (iv)
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise and (v) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing.
Trust REMIC: Either 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.
Unpaid Interest Amounts: As of any Distribution Date and any Class of
Offered Certificates, the sum of (a) the excess of (x) the portion of the
Accrued Certificate Interest from prior Distribution Dates remaining unpaid over
(y) the amount in respect of interest on that Class of Certificates actually
distributed on the preceding Distribution Date and (b) interest on such unpaid
amount at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC Interest: Any one of the Upper-Tier REMIC Regular
Interests or Class R Interest.
Upper-Tier REMIC Regular Interest: Any of the REMIC regular interests in
the Upper-Tier REMIC represented by the Class 1-A-1 Certificates, Class 1-A-2
Certificates, Class 2-A-1 Certificates, Class 3-A-1 Certificates, Class M-1
Certificates, Class M-2 Certificates, Class M-3 Certificates, Class B
Certificates and Class X Certificates as described in the Preliminary Statement
and Section 2.07.
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) the
Class X Certificates will be entitled to 1% in the aggregate of all Voting
Rights (such Voting Rights to be allocated among the Holders of Certificates of
each such Class in accordance with their respective Percentage Interests) and
(b) the remaining Voting Rights shall be allocated among Holders of the
remaining Classes of Certificates in proportion to the Certificate Principal
Balances of their respective Certificates on such date.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., a national banking association, and
its successors and assigns, in its capacity as Master Servicer and Custodian.
WMMSC: Washington Mutual Mortgage Securities Corp., a Delaware corporation
and its successors and assigns, in its capacity as Servicer of the WMMSC
Mortgage Loans.
WMMSC Investment Earnings Amount: With respect to any Distribution Date,
an amount equal to the investment earnings, if any, that accrued on amounts then
held in the Distribution Account in respect of the WMMSC Monthly Remittance
Amount, for the period from and including the Servicer Remittance Date
immediately preceding such Distribution Date to and including such Distribution
Date.
WMMSC Monthly Remittance Amount: With respect to any Distribution Date and
any WMMSC Mortgage Loans, an amount equal to the funds that WMMSC withdrew from
its Protected Account and remitted to the Trustee on the Servicer Remittance
Date immediately preceding such Distribution Date in respect of any of the items
listed in subclauses (i) through (vii) of Section 2.6(b) of the WMMSC Servicing
Agreement.
WMMSC Mortgage Loans: The Mortgage Loans for which WMMSC is listed as
"Servicer" on the Mortgage Loan Schedule. 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 the same may be amended from time to
time.
Section 1.02 Certain Calculations. Unless otherwise specified herein, for
purposes of determining amounts with respect to the Certificates and the rights
and obligations of the parties hereto, all calculations of interest (other than
as provided in the Mortgage Loan documents) provided for herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor, concurrently
with the execution and delivery hereof, hereby sells, transfers, assigns, sets
over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund together with all rights assigned by the
Transferor to the Depositor, pursuant to the Mortgage Loan Purchase Agreement,
solely with respect to the Mortgage Loans, and, solely with respect to the
Mortgage Loans, all of the Transferor's right, title and interest in and to the
Servicing Agreements 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) 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:
(i) the original Mortgage Note endorsed by manual or facsimile signature
in blank in the following form: "Pay to the order of ___________ without
recourse," with all intervening endorsements showing a complete chain of
endorsement from the originator to the Person endorsing the Mortgage Note (each
such endorsement being sufficient to transfer all right, title and interest of
the party so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note); or, with respect to any Lost Mortgage Note, a lost note
affidavit from the related originator or the Transferor stating that the
original Mortgage Note was lost or destroyed, together with a copy of such
Mortgage Note;
(ii) except as provided below, the original recorded Mortgage or a copy of
such Mortgage certified by the related originator as being a true and complete
copy of the Mortgage;
(iii) a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments), endorsed in the following form: "JPMorgan
Chase Bank, in trust for the MASTR Adjustable Rate Mortgages Trust 2004-2 for
the benefit of the Holders of the Mortgage Pass-Though Certificates, Series
2004-2" together with, except as provided below, all interim recorded
assignments of such mortgage (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect the assignment of
and transfer to the assignee thereof, under the Mortgage to which the assignment
relates); provided that, if the related Mortgage has not been returned from the
applicable public recording office, such assignment of the Mortgage may exclude
the information to be provided by the recording office;
(iv) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any; and
(v) except as provided below, the original or duplicate original lender's
title policy and all riders thereto.
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:
(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;
(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 (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, showing an unbroken chain of title from the
originator to the Trust; and
(viii) 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 (ii), (iii) or (v) above, respectively, concurrently with
the execution and delivery hereof because such document or documents have not
been returned from the applicable public recording office in the case of clause
(ii) or (iii) above, or because the title policy has not been delivered to
either the Custodian or the Depositor by the applicable title insurer in the
case of clause (v) above, the Depositor shall promptly deliver to the Custodian,
in the case of clause (ii) or (iii) above, such original Mortgage or such
interim assignment, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or, in
the case of clause (v) above, no later than 120 days following the Closing Date;
provided, however, in the event the Depositor is unable to deliver by such date
each Mortgage and each such interim assignment by reason of the fact that any
such documents have not been returned by the appropriate recording office, or,
in the case of each such interim assignment, because the related Mortgage has
not been returned by the appropriate recording office, the Depositor shall
deliver such documents to the 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 (upon which statement the Master
Servicer and the Trustee and each Custodian may conclusively rely), to obtain
the initial rating on the Certificates.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
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 2004-2" and JPMorgan Chase Bank, is hereby appointed as Trustee
in accordance with the provisions of this Agreement.
(d) Prior to the Servicer Remittance Date in March 2004, the Depositor
shall remit to the Master Servicer for deposit in the Collection Account the
Initial Transferor Required Deposit in respect of the Alternate Cut-Off Date
Mortgage Loans. Such amount shall be allocated 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 March 2004 Distribution Date, had the Cut-Off Date for
such Mortgage Loans been February 1, 2004 (instead of March 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 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 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)(iv) 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)(iv) 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 each
such Final Certification. The Trustee shall enforce the applicable duties of the
Transferor pursuant to the terms of this Section 2.02 to correct and cure such
document defects, and if the Transferor fails to correct or cure the defect
within such period, and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Trustee
shall enforce the Transferor's obligations hereunder, to purchase such Mortgage
Loan at the Purchase Price. Any such purchase of a Mortgage Loan shall not be
effected prior to the delivery to the 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 hereby covenants that within ninety (90) days of the
earlier of its discovery or its receipt of written notice from the Trustee of
any document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, which document defect materially and adversely
affects the interest of the Certificateholders in any Mortgage Loan, it shall
repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the
Purchase Price in the manner set forth above. The Transferor shall promptly
reimburse the Master Servicer and the Trustee for any expenses reasonably
incurred by the Master Servicer or the Trustee in respect of enforcing such
repurchase by the Transferor.
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 it and
thereupon will promptly deposit within each Mortgage File, upon the execution or
receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File as come into the possession of the related
Servicers from time to time.
It is understood and agreed that the obligations of 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 Depositor and any
Certificateholder.
Section 2.03 Remedies for Breaches of Representations and Warranties. The
Transferor hereby makes the representations and warranties set forth in Schedule
II hereto, and by this reference incorporated herein, to the Depositor and the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off
Date.
Upon discovery by any of the parties hereto of a breach of a
representation or warranty made by the Transferor pursuant to this Section 2.03
that materially and adversely affects the interests of the Certificateholders in
any Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. A breach which causes a Mortgage Loan not to
constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, will be deemed automatically to materially and adversely affect the
interests of the Certificateholders in such Mortgage Loan. Upon receiving notice
of a breach, the Trustee shall in turn notify the Transferor of such breach. The
Trustee shall enforce the obligations of the Transferor in accordance with this
Section 2.03 to correct or cure any such breach of a representation or warranty
made herein, and if the Transferor fails to correct or cure the defect within
such period, and such defect materially and adversely affects the interests of
the Certificateholders in the related Mortgage Loan, the Trustee shall enforce
the Transferor's obligations hereunder to (i) purchase such Mortgage Loan at the
Purchase Price or (ii) substitute for the related Mortgage Loan an Eligible
Substitute Mortgage Loan. In each case, such Mortgage Loan (a "Deleted Mortgage
Loan") will be removed from the Trust Fund.
The Transferor hereby covenants that within ninety (90) days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made pursuant to this Section 2.03
which materially and adversely affects the interest of the Certificateholders in
any Mortgage Loan it shall cure such breach in all material respects, and if
such breach is not so cured, shall, (i) if such ninety (90) day period expires
prior to the second anniversary of the Closing Date, remove such Deleted
Mortgage Loan from the Trust Fund and substitute in its place an Eligible
Substitute Mortgage Loan or Loans into the Trust Fund, in the manner and subject
to the conditions set forth in this Section; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the
manner set forth below. The Transferor shall promptly reimburse the Master
Servicer and the Trustee for any expenses reasonably incurred by the Master
Servicer or the Trustee in respect of enforcing the remedies for such breach by
the Transferor.
With respect to any Eligible Substitute Mortgage Loan or Loans, the
Transferor shall deliver to the 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 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 and
the Master Servicer with respect to each Mortgage Loan as of the date hereof or
such other date set forth herein that as of the Closing Date, and following the
transfer of the Mortgage Loans to it by the Transferor the Depositor had good
title to the Mortgage Loans and the Mortgage Notes were subject to no offsets,
liens, defenses or counterclaims.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Master Servicer. Upon discovery by the Depositor, the Transferor, the Master
Servicer or the Trustee of a breach of any of the foregoing representations and
warranties set forth in this Section 2.04 (referred to herein as a "breach"),
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties hereto and to each Rating Agency.
Section 2.05 [Reserved].
Section 2.06 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the assets of the Trust Fund
related to the Group 1 Mortgage Loans, Group 2 Mortgage Loans and Group 3
Mortgage Loans, and acknowledges the issuance of the Lower-Tier REMIC Interests
in exchange therefor. The Trustee further acknowledges the transfer and
assignment to it of the Lower-Tier REMIC Regular Interests and acknowledges the
issuance of the Upper-Tier REMIC Interests. Concurrently with such transfer and
assignment, 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 Trust Fund. The Trustee
agrees to hold the Trust Fund, the Lower-Tier REMIC Interests and the Upper-Tier
REMIC Interests and to exercise the rights referred to above for the benefit of
all present and future Holders of the Certificates and to perform the duties set
forth in this Agreement to the best of its ability, to the end that the
interests of the Holders of the Certificates may be adequately and effectively
protected.
Section 2.07 REMIC Matters. (a) 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.
(b) The following table sets forth the Lower-Tier REMIC Interests, the
Lower-Tier REMIC Interest Rates, the initial Lower-Tier REMIC Principal Amounts
and the Corresponding Upper-Tier REMIC Regular Interest.
CORRESPONDING
LOWER-TIER REMIC LOWER-TIER REMIC INITIAL LOWER-TIER REMIC UPPER-TIER REMIC
CLASS DESIGNATION INTEREST RATE PRINCIPAL AMOUNT REGULAR INTEREST
----------------- ------------- ---------------- ----------------
Class LT-1-A-1 (1) 1/4 initial Corresponding Upper-Tier REMIC 1-A-1
Regular Interest Class Principal Balance
Class LT-1-A-2 (1) 1/4 initial Corresponding Upper-Tier REMIC 1-A-2
Regular Interest Class Principal Balance
Class LT-2-A-1 (1) 1/4 initial Corresponding Upper-Tier REMIC 2-A-1
Regular Interest Class Principal Balance
Class LT-3-A-1 (1) 1/4 initial Corresponding Upper-Tier REMIC 3-A-1
Regular Interest Class Principal Balance
Class LT-M-1 (1) 1/4 initial Corresponding Upper-Tier REMIC M-1
Regular Interest Class Principal Balance
Class LT-M-2 (1) 1/4 initial Corresponding Upper-Tier REMIC M-2
Regular Interest Class Principal Balance
Class LT-M-3 (1) 1/4 initial Corresponding Upper-Tier REMIC M-3
Regular Interest Class Principal Balance
Class LT-B (1) 1/4 initial Corresponding Upper-Tier B
REMIC Regular Interest Class
Principal Balance
Class LT-Accrual (1) 1/4 Pool Principal Balance plus1/4 N/A
Overcollateralized Amount
Class LT-Group 1 (1) .01% initial Group 1 Subordinate N/A
(SUB) Amount
Class LT-Group 1 (2) .01% initial aggregate Stated Principal N/A
Balance of the Group 1 Mortgage Loans.
Class LT-Group 2 (1) .01% of the initial Group 2 Subordinate N/A
(SUB) Amount
Class LT-Group 2 (3) .01% initial aggregate Stated Principal N/A
Balance of the Group 2 Mortgage Loans
Class LT-Group 3 (1) .01% of the initial Group 3 Subordinate N/A
(SUB) Amount
Class LT-Group 3 (4) .01% initial aggregate Stated Principal N/A
Balance of the Group 3 Mortgage Loans
Class LT-XX (1) 1/2 initial aggregate Stated Principal
Balance of the Mortgage Loans, less
aggregate initial Lower-Tier REMIC
Principal Amount of
Class LT-Group 1(SUB),
Class LT-Group 1,
Class LT-Group 2(SUB),
Class LT-Group 2,
Class LT-Group 3(SUB)
and Class LT-Group 3
Class LR (5) (2) N/A
------------------------
(1) The interest rate with respect to any Distribution Date for these interests
is a per annum variable rate equal to the weighted average of the Net
Mortgage Rates of the Mortgage Loans then in effect on the first day of the
related Due Period multiplied by a fraction, the numerator of which is 30
and the denominator of which is the number of days in the related Interest
Accrual Period.
(2) The interest rate with respect to any Distribution Date for these interests
is a per annum variable rate equal to the weighted average of the Net
Mortgage Rates of the Group 1 Mortgage Loans then in effect on the first
day of the related Due Period multiplied by a fraction, the numerator of
which is 30 and the denominator of which is the number of days in the
related Interest Accrual Period.
(3) The interest rate with respect to any Distribution Date for these interests
is a per annum variable rate equal to the weighted average of the Net
Mortgage Rates of the Group 2 Mortgage Loans then in effect on the first
day of the related Due Period multiplied by a fraction, the numerator of
which is 30 and the denominator of which is the number of days in the
related Interest Accrual Period.
(4) The interest rate with respect to any Distribution Date for these interests
is a per annum variable rate equal to the weighted average of the Net
Mortgage Rates of the Group 3 Mortgage Loans then in effect on the first
day of the related Due Period multiplied by a fraction, the numerator of
which is 30 and the denominator of which is the number of days in the
related Interest Accrual Period.
(5) The Class LR Interest is the sole class of residual interest in Lower-Tier
REMIC and it does not have a principal amount or an interest rate.
On each Distribution Date, 25% of the increase in the Overcollateralized
Amount will be payable as a reduction of the Lower-Tier REMIC Principal Amounts
of the Lower-Tier REMIC Accretion Directed Classes (each such Class will be
reduced by an amount equal to 25% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Principal Balance of its
Corresponding Upper-Tier REMIC Regular Interest) and will be accrued and added
to the principal balance of the Class LT-Accrual Interest.
All payments of scheduled principal and prepayments of principal generated
by the Mortgage Loans shall be allocated (i) 25% to the Class LT-Accrual
Interest, (ii) 25% to the Lower-Tier REMIC Accretion Directed Classes (principal
payments shall be allocated among such Lower-Tier REMIC Accretion Directed
Classes in an amount equal to 25% of the principal amounts allocated to its
respective Class of Corresponding Upper-Tier REMIC Regular Interest), until paid
in full and (iii) and 50% to Class LT-Group 1(SUB) Interest, Class LT-Group 1
Interest, Class LT-Group 2(SUB) Interest, Class LT-Group 2 Interest, Class
LT-Group 3(SUB) Interest, Class LT-Group 3 Interest and Class LT-XX Interest
(and further allocated among these Lower-Tier Interests in the manner described
in the next sentence). As among the Class LT-Group 1(SUB) Interest, Class
LT-Group 1 Interest, Class LT-Group 2(SUB) Interest, Class LT-Group 2 Interest,
Class LT-Group 3(SUB) Interest, Class LT-Group 3 Interest and Class LT-XX
Interest, all payments of scheduled principal and prepayments of principal
generated by the Mortgage Loans referred to in clause (iii) of the previous
sentence shall be allocated (i) first, to the Class LT-Group 1(SUB) Interest,
Class LT-Group 2(SUB) Interest and Class LT-Group 3(SUB) Interest each from the
related Loan Group, so that their respective principal balances (computed to at
least eight decimal places) are equal to 0.01% of the related Group Subordinate
Amount (except that if any such amount is a larger number than in the preceding
distribution period, the least amount of principal shall be distributed to the
Class LT-Group 1(SUB) Interest, Class LT-Group 2(SUB) and Class LT-Group 3(SUB)
Interest, as applicable, such that the Lower-Tier Subordinated Balance Ratio is
maintained); (ii) second, to the Class LT-Group 1 Interest, the Class LT-Group 2
Interest and the Class LT-Group 3 Interest, .01% of the principal collected in
respect of the related Loan Group; and (iii) third, any remaining amounts of
principal shall be distributed to the Class LT-XX Interest. Notwithstanding the
above, principal payments allocated to the Class X Certificates that result in
the reduction in the Overcollateralized Amount shall be allocated (i) 50% to the
Class LT-Accrual Interest (until paid in full) and (ii) 50% to the Class
LT-Group 1(SUB) Interest, Class LT-Group 1 Interest, Class LT-Group 2(SUB)
Interest, Class LT-Group 2 Interest, Class LT-Group 3(SUB) Interest, Class
LT-Group 3 Interest and Class LT-XX Interest (and allocated among these
Lower-Tier REMIC Interests in a manner similar to that described in the
immediately preceding sentence).
Realized Losses shall be applied so that after all distributions have been
made on each Distribution Date (i) the Lower-Tier REMIC Principal Amount of each
Lower-Tier REMIC Accretion Directed Class is equal to 25% of the Class Principal
Amount of its Class of Corresponding Upper-Tier REMIC Regular Interest, (ii) the
Class LT-Accrual Interest is equal to 25% of the aggregate Scheduled Principal
Balance of the Mortgage Loans plus 25% of the Overcollateralized Amount, (iii)
the Class LT-Group 1(SUB) Interest is equal to .01% of the Group I Subordinate
Amount, (iv) the Class LT-Group 1 Interest is equal to .01% of the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans, (v) the Class LT-Group
2(SUB) Interest is equal to .01% of the Group 0 Xxxxxxxxxxx Xxxxxx, (xx) the
Class LT-Group 2 Interest is equal to .01% of the aggregate Stated Principal
Balance of the Group 2 Mortgage Loans, (vii) the Class LT-Group 3(SUB) Interest
is equal to .01% of the aggregate Stated Principal Balance of the Group 0
Xxxxxxxxxxx Xxxxxx, (xxxx) the Class LT-Group 3 Interest is equal to .01% of the
aggregate Stated Principal Balance of the Group 3 Mortgage Loans, and (ix) the
remainder to the Class LT-XX Interest.
Section 2.08 Covenants of the Master Servicer. The Master Servicer hereby
covenants to the Depositor and the Trustee as follows:
(a) subject to Section 3.01, the Master Servicer shall cause each Servicer
to perform its obligations under the applicable Servicing Agreement; and
(b) no written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any affiliate of the
Depositor or the Trustee and prepared by the Master Servicer pursuant to this
Agreement will contain any untrue statement of a material fact or omit to state
a material fact necessary to make such information, certificate, statement or
report not misleading 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 2.09 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 order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
the Master Servicer has obtained the same.
Section 2.10 Representations and Warranties of the Custodian. The
Custodian hereby represents and warrants to the Depositor, the Master Servicer
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-Off Date:
(a) Such Custodian is duly organized as a national banking association and
is validly existing and in good standing under the laws of the United States of
America and is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by such Custodian in any state in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business of any such state, to the extent necessary to perform
any of its obligations under this Agreement in accordance with the terms
thereof.
(b) Such Custodian has the full power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated by
this Agreement and has duly authorized by all necessary action on the part of
such Custodian the execution, delivery and performance of this Agreement, and
this Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding obligation
of such Custodian, enforceable against such Custodian in accordance with its
terms, except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefore may be brought.
(c) The execution and delivery of this Agreement by such Custodian, the
consummation of any other of the transactions contemplated by this Agreement,
and the fulfillment of or compliance with the terms thereof are in the ordinary
course of business of such Custodian and will not (i) result in a material
breach of any term or provision of the articles of incorporation or by-laws of
such custodian, (ii) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under, the terms
of any other material agreement or instrument to which such Custodian is a party
or by which it may be bound, or (iii) constitute a material violation of any
statute, order or regulation applicable to such Custodian of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over such Custodian; and such Custodian is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair such Custodian's ability to perform or meet any
of its obligations under this Agreement.
(d) No litigation is pending or threatened against such Custodian that
would materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of such Custodian to perform any of its
obligations under this Agreement in accordance with the terms thereof.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Custodian of, or compliance by such Custodian with, this
Agreement or the consummation of the transactions contemplated thereby, or if
any such consent, approval, authorization or order is required, such Custodian
has obtained the same.
ARTICLE III
ADMINISTRATION AND MASTER
SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicing of Mortgage Loans. For and on behalf of the
Certificateholders, the Master Servicer shall supervise, monitor and oversee the
obligation of the Servicers to service and administer their respective Mortgage
Loans in accordance with the terms of the applicable Servicing Agreement and
shall have full power and authority to do any and all things which it may deem
necessary or desirable in connection with such master servicing and
administration. With respect to WMMSC, 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 Trustee 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 two sentences, and with customary and usual standards of practice of
prudent mortgage loan master servicers. Furthermore, the Master Servicer shall
oversee and consult with each Servicer as necessary from time-to-time to carry
out the Master Servicer's obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by each Servicer (provided, however, the Master Servicer shall have no
obligation to review or evaluate any reports, information and other data
provided by WMMSC with respect to 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 and the Depositor the compliance by
each Servicer with its duties under the related Servicing Agreement. In the
review of each Servicer's activities, the Master Servicer may rely upon an
officer's certificate of the Servicer with regard to such Servicer's compliance
with the terms of its Servicing Agreement. In the event that the Master
Servicer, in its judgment, determines that a Servicer should be terminated in
accordance with its Servicing Agreement, or that a notice should be sent
pursuant to such Servicing Agreement with respect to the occurrence of an event
that, unless cured, would constitute grounds for such termination, the Master
Servicer shall notify the Depositor and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as successor Servicer of the related Mortgage Loans
or cause the Trustee to enter 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 service to service the
Mortgage Loans in accordance with the related Servicing Agreement) are not fully
and timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Collection
Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of the Servicer, if any, that it
replaces.
(f) If a Servicer fails to make its required payment of Compensating
Interest on any Distribution Date, the Master Servicer will be required to make
such payment of Compensating Interest to the same extent that such Servicer was
required to make such payment of Compensating Interest.
(g) To the extent a Servicer requests the consent of the Trust or the
Master Servicer with respect to any servicing-related matter for which the
applicable Servicer is required to seek consent under the applicable Servicing
Agreement or Assignment Agreement, the Master Servicer 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 2.09 hereunder). Any such assumption shall be
subject to Section 7.02 hereof. If the Master Servicer shall for any reason no
longer be the Master Servicer (including by reason of any Master Servicer Event
of Termination), the Trustee or its successor may, but shall not be obligated
to, succeed to any rights and obligations of the Master Servicer under each
subservicing agreement.
The Master Servicer shall, upon request of the Trustee, but at the expense
of the Master Servicer, deliver to the assuming party all documents and records
relating to each subservicing agreement or substitute subservicing agreement and
the Mortgage Loans then being serviced thereunder and an accounting of amounts
collected or held by it and otherwise use its best efforts to effect the orderly
and efficient transfer of 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 shall 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
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):
(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;
(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 prepayment penalties received from any Servicer;
(ix) any Compensating Interest Payments;
(x) any amounts deposited by the Master Servicer in connection with
a deductible clause in any blanket hazard insurance policy in respect of
the Mortgage Loans in such 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 Transferor Required Deposit;
(xiii) all payments that represent Recoveries; and
(xiv) any other amounts required to be deposited hereunder.
In the event that the Master Servicer shall deposit into the Collection Account
any amount not required to be deposited, it may at any time withdraw such amount
from the Collection Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds deposited in
the Collection Account shall be held in trust for the Certificateholders until
withdrawn in accordance with Section 3.10.
(c) [Reserved].
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt but no later than on the Distribution Account Deposit Date, deposit in
the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to the Trustee
pursuant to Section 3.10(a)(ix)(A);
(ii) any amount deposited by the Master Servicer pursuant to Section
3.07(e) in connection with any losses on Permitted Investments; and
(iii) any other amounts described hereunder which are required to be
deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not required to be
remitted, it may at any time direct the Trustee in writing to withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.10(b).
Funds deposited in the Distribution Account in respect of the Mortgage Loans
shall be deemed to be assets of the Lower-Tier REMIC until deemed distributed in
respect of the Lower-Tier REMIC Regular Interests to the Upper-Tier REMIC and
distributed in respect of the Class LR Certificates (in respect of the Class
A-LR Interest) pursuant to Section 4.02(a)(ix) and then shall be deemed to be
assets of the Upper-Tier REMIC until distributed in respect of the Certificates
in accordance with Section 4.02. In no event shall the Trustee incur liability
for withdrawals from the Distribution Account at the direction of the Master
Servicer.
(e) Each institution at which the Collection Account or Distribution
Account is maintained shall invest the funds on deposit in the Collection
Account or Distribution Account as directed in writing by the Master Servicer,
in Permitted Investments. Funds invested in the Collection Account shall mature
not later than the Business Day next preceding the related Distribution Account
Deposit Date (except that if such Permitted Investment is an obligation of or is
managed by the institution that maintains, or is the custodian for, such
account, then such Permitted Investment shall mature not later than such
Distribution Account Deposit Date). The Trustee shall, with respect to funds
other than the WMMSC Monthly Remittance Amount, as directed in writing by the
Master Servicer, and with respect to the WMMSC Monthly Remittance Amount, as
directed in writing by WMMSC, either (i) hold funds on deposit in the
Distribution Account uninvested in a trust or deposit account of the Trustee
with no liability for interest or other compensation thereon, except as
otherwise agreed in writing with the Master Servicer, or WMMSC, as applicable,
or (ii) invest funds on deposit in the Distribution Account in Permitted
Investments as directed by the Master Servicer, or WMMSC, as applicable, which
Permitted Investments shall mature not later than the Business Day next
preceding the Distribution Date (except that if such Permitted Investment is an
obligation of or is managed by the institution that maintains such fund or
account, then such Permitted Investment shall mature not later than such
Distribution Date). Permitted Investments in respect of the Collection Account
or the Distribution Account shall not be sold or disposed of prior to their
maturity. All such Permitted Investments shall be made in the name of the
Trustee, for the benefit of the Certificateholders. All income and gain net of
any losses realized from any such investment of funds on deposit in the
Collection Account shall be for the benefit of the Master Servicer as master
servicing compensation and shall be remitted to it monthly as provided herein.
The amount of any realized losses in the Collection Account incurred in any such
account in respect of any such investments shall promptly be deposited by the
Master Servicer (from its own funds without any right of reimbursement) in the
Collection Account or paid to the Trustee by wire transfer of immediately
available funds for deposit into the Distribution Account. All income and gain
(net of any losses realized from any such investment of funds on deposit in the
Distribution Account and net of 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 Trustee shall not be liable for the
amount of any loss incurred in respect of any investment or lack of investment
of funds held in the Collection Account (except to the extent the Trustee is the
obligor and has defaulted thereon) or the Distribution Account and made in
accordance with this Section 3.07. In the absence of written instructions by (i)
the Master Servicer, with respect to funds other than 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, each Rating
Agency and the Depositor of any proposed change of the location of the
Collection Account prior to any change thereof. The Trustee shall give notice to
the Master Servicer, each Rating Agency and the Depositor of any proposed change
of the location of the Distribution Account prior to any change thereof.
(g) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Excess Reserve Fund Account. The Master Servicer shall
account for the Excess Reserve Fund Account as an asset of the Grantor Trust and
not an asset of either Trust REMIC created pursuant to this Agreement. The
beneficial owner of the Excess Reserve Fund Account is the Class X
Certificateholder. For all federal tax purposes, amounts transferred or
reimbursed by either Trust REMIC to the Excess Reserve Fund Account shall be
treated as distributions by the Trustee to the Class X Certificateholder in
respect of the Class X Interest.
(h) Any Basis Risk Carry Forward Amount paid by the Trustee pursuant to
this Section 3.07 to the LIBOR Certificates shall be accounted for by the Master
Servicer as amounts paid first to the Class X Certificates in respect of the
Class X Interest and then to the respective Class or Classes of LIBOR
Certificates. In addition, the Master Servicer shall account for the LIBOR
Certificates' rights to receive payments of Basis Risk Carry Forward Amount as
rights in a limited recourse interest rate cap contract written by the Class X
Certificates in favor of each such Class of LIBOR Certificates.
(i) For federal tax return and information reporting, the right of the
LIBOR Certificateholders to receive payments under the Excess Reserve Fund
Account in respect of any Basis Risk Payments shall be assigned a value of zero.
Section 3.08 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts. To the extent required by the related 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 and the
Trustee and their respective agents or representatives reasonable access to all
records and documentation regarding the Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement or the
Servicing Agreement, such access being afforded without charge, but only upon
reasonable request and during normal business hours at the office designated by
the Master Servicer or the applicable Servicer or the 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 an amount equal to the Available Funds and any Recoveries
received during the related Prepayment Period, and remit by wire transfer
of immediately available funds such amounts to the Trustee for deposit in
the Distribution Account and (B) withdraw any prepayment penalties
received from any Servicer and remit by wire transfer of immediately
available funds such amounts to the Transferor pursuant to Section 3.24;
(x) to reimburse the Master Servicer for any costs or expenses
incurred by it and reimbursable pursuant to Section 3.02; and
(xi) to clear and terminate the Collection Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
The Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account pursuant to such sub-clauses (i), (ii), (iv), (v) and
(vi). Prior to making any withdrawal from the Collection Account pursuant to
sub-clause (iii), the Master Servicer shall deliver to the Trustee an Officer's
Certificate of a Master Servicing Officer indicating the amount of any previous
Advance determined by the Master Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans(s), and their respective portions of such
Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders, in the manner specified in this Agreement
(and withhold from the amounts so withdrawn, the amount of any taxes that it is
authorized to withhold pursuant to the last paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to the Master Servicer earnings on or investment income,
if any, and 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 pursuant to this Agreement, including, without limitation, Section
3.05, Section 7.02 and Section 8.05; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01 hereof.
Section 3.11 Maintenance of Hazard Insurance. (a) For each Mortgage Loan,
the Master Servicer shall enforce any obligation of the Servicers under the
related Servicing Agreements to maintain or cause to be maintained standard fire
and casualty insurance and, where applicable, flood insurance, all in accordance
with the provisions of the related Servicing Agreements. It is understood and
agreed that such insurance shall be with insurers meeting the eligibility
requirements set forth in the applicable Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor or
to be maintained on property acquired in respect of a defaulted loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
(b) Pursuant to Sections 3.07 and 3.08, any amounts collected by the
Master Servicer, or by any Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Collection Account,
subject to withdrawal pursuant to Sections 3.07 and 3.08. Any cost incurred by
the Master Servicer or any Servicer in maintaining any such insurance if the
Mortgagor defaults in its obligation to do so shall be added to the amount owing
under the Mortgage Loan where the terms of the Mortgage Loan so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.07 and 3.08.
Section 3.12 Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in the applicable Servicing Agreement)
cause the related Servicer to, prepare and present on behalf of the Trustee and
the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the Collection Account upon receipt, except that
any amounts realized that are to be applied to the repair or restoration of the
related Mortgaged Property as a condition precedent to the presentation of
claims on the related Mortgage Loan to the insurer under any applicable
Insurance Policy need not be so deposited (or remitted).
Section 3.13 Maintenance of the Primary Insurance Policies. (a) The Master
Servicer shall not take, or permit any Servicer (to the extent such action is
prohibited under the applicable Servicing Agreement) to take, any action that
would result in noncoverage under any applicable Primary Insurance Policy of any
loss which, but for the actions of such Master Servicer or Servicer, would have
been covered thereunder. The Master Servicer shall use its best reasonable
efforts to cause each Servicer (to the extent required under the related
Servicing Agreement) to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
The Master Servicer shall not, and shall not permit any Servicer (to the extent
required under the related Servicing Agreement) to, cancel or refuse to renew
any such Primary Insurance Policy that is in effect at the date of the initial
issuance of the Mortgage Note and is required to be kept in force hereunder
except in accordance with the provisions of this Agreement and the related
Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to
the extent required under the related Servicing Agreement) to present, on behalf
of the Trustee and the Certificateholders, claims to the insurer under any
Primary Insurance Policies and, in this regard, to take such reasonable action
as shall be necessary to permit recovery under any Primary Insurance Policies
respecting defaulted Mortgage Loans. Pursuant to Sections 3.07 and 3.08, any
amounts collected by the Master Servicer or any Servicer under any Primary
Mortgage Insurance Policies shall be deposited in the Collection Account,
subject to withdrawal pursuant to Sections 3.07 and 3.08.
Section 3.14 Realization upon Defaulted Mortgage Loans. The Master
Servicer shall cause each Servicer (to the extent required under the related
Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement.
Section 3.15 REO Property. (a) In the event the Trust Fund acquires
ownership of any REO Property in respect of any related Mortgage Loan, the deed
or certificate of sale shall be issued to the Trustee, or to its nominee, on
behalf of the related Certificateholders. The Master Servicer shall, to the
extent provided in the applicable Servicing Agreement, cause the applicable
Servicer to sell any REO Property as expeditiously as possible and in accordance
with the provisions of this Agreement and the related Servicing Agreement, as
applicable. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall cause the applicable Servicer to protect and conserve such REO
Property in the manner and to the extent required by the applicable Servicing
Agreement, subject to the REMIC Provisions.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed 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 related Collection Account.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall enforce the obligation of the related
Servicer to dispose of such Mortgaged Property prior to the close of the third
calendar year after the year in which the Trust Fund acquires such Mortgaged
Property unless the Servicer shall have applied for and received an extension of
such period from the Internal Revenue Service, in which case the Trust Fund may
continue to hold such Mortgaged Property for the period of such extension.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used for the production of income by or on behalf of the Trust Fund
in such a manner or pursuant to any terms that would (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or (ii) subject any REMIC hereunder to the
imposition of any federal, state or local income taxes on the income earned from
such Mortgaged Property under Section 860G(c) of the Code or otherwise, unless
the Master Servicer or related Servicer, as applicable, has agreed to indemnify
and hold harmless the Trust Fund with respect to the imposition of any such
taxes.
In the event of a default on a Mortgage Loan one or more of whose 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 the receipt by the Master Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes or (ii) otherwise in connection with the servicing of any Mortgage
Loan, the Master Servicer shall, upon receipt of notification from the related
Servicer pursuant to the applicable Servicing Agreement, which notification
shall state that such payment in full has been deposited in the Collection
Account or has otherwise been escrowed in a manner customary for such purposes,
instruct the Custodian, 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 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, related Servicer or the Custodian as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer or the related Servicer in respect of any Mortgage Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds, including but not limited to, any funds on deposit in the
Collection Account or any Protected Account, shall be held by the Master
Servicer, 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 all investment income
gained on amounts held in the Collection Account. The Trustee will remit from
amounts on deposit in the Distribution Account to the Master Servicer all
investment income earned on amounts held in the Distribution Account net of the
WMMSC Investment Earnings Amount, if any, which the Trustee shall remit directly
to WMMSC.
Section 3.20 Access to Certain Documentation. The Master Servicer and 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 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 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
Trustee or any affiliate thereof) which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Trustee and the
Depositor to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement or
of mortgage loans under pooling and servicing agreements substantially similar
to this Agreement (such statement to have attached thereto a schedule setting
forth the pooling and servicing agreements covered thereby) and that, on the
basis of such examination, conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers, 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 Trustee to any
Certificateholder upon request at the Master Servicer's expense, provided such
statement is delivered by the Master Servicer to the Trustee.
Section 3.23 Errors and Omissions Insurance; Fidelity Bonds. The Master
Servicer shall for so long as it acts as Master Servicer under this Agreement,
obtain and maintain in force (a) a policy or policies of insurance covering
errors and omissions in the performance of its obligations as Master Servicer
hereunder and (b) a fidelity bond in respect of its officers, employees and
agents. Each such policy or policies shall be in such form and such amount
generally acceptable for entities serving as master servicer. In the event that
any such policy or bond ceases to be in effect, the Master Servicer shall obtain
a comparable replacement policy or bond from an insurer or issuer, meeting the
requirements set forth above as of the date of such replacement.
Section 3.24 Master Servicer to Remit Prepayment Penalties to the
Transferor. On or prior to each Distribution Account Deposit Date, the Master
Servicer shall withdraw any amounts in the Collection Account attributable to
prepayment penalties deposited therein by any Servicer, and remit by wire
transfer of immediately available funds such amounts to the Transferor in
accordance with the instructions of the Transferor.
ARTICLE IV
DISTRIBUTIONS AND SERVICING ADVANCES
Section 4.01 Advances. The Master Servicer shall deposit in the
Distribution Account not later than the Distribution Account Deposit Date
immediately preceding the related Distribution Date an Advance in an amount
equal to the difference between (x) with respect to each Scheduled Payment due
on a Mortgage Loan that is delinquent (other than as a result of a Relief Act
Reduction) and for which the related Servicer was required to make an Advance
pursuant to the related Servicing Agreement and (y) amounts deposited in the
Collection Account (or, in the case of WMMSC, amounts deposited in the
Distribution Account) to be used for Advances with respect to such Mortgage
Loan, except to the extent the Master Servicer determines any such Advance to be
a Nonrecoverable Advance. Subject to the foregoing, the Master Servicer shall
continue to make such Advances for so long as the related Servicer is required
to do so under the related Servicing Agreement. If applicable, on the
Distribution Account Deposit Date, the Master Servicer shall deliver an
Officer's Certificate to the Trustee stating that the Master Servicer elects not
to make an Advance in a stated amount and detailing the reason(s) it deems the
Advance to be a Nonrecoverable Advance. Any amounts deposited by the Master
Servicer pursuant to this Section 4.01 shall be net of the Servicing Fee, for
the related Mortgage Loans.
Section 4.02 Priorities of Distribution on the Certificates. (a) On each
Distribution Date, the Trustee shall withdraw the 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, make (from deemed
distributions in respect of the Lower-Tier REMIC Regular Interests pursuant to
Section 4.02(a)) the disbursements and transfers in the following order of
priority and to the extent of the Available Funds remaining:
(i) to the Holders of each Class of Offered Certificates, up to the
Interest Remittance Amount for such Distribution Date in the following
order of priority:
(A) to the Class 1-A-1 Certificates, Class 1-A-2 Certificates,
Class 2-A-1 Certificates and Class 3-A-1 Certificates, the related
Accrued Certificate Interest and any Unpaid Interest Amounts for
such Distribution Date, in each case pursuant to the allocation set
forth in clauses (iv), (v) and (vi) of this Section 4.02(a);
(B) to the Class M-1 Certificates, the Accrued Certificate
Interest for that Class;
(C) to the Class M-2 Certificates, the Accrued Certificate
Interest for that Class;
(D) to the Class M-3 Certificates, the Accrued Certificate
Interest for that Class; and
(E) to the Class B Certificates, the Accrued Certificate
Interest for that Class;
(ii) (A) on each Distribution Date (x) before the related Stepdown
Date or (y) with respect to which a Trigger Event is in effect, to the
Certificateholders of the Class or Classes of Offered Certificates then
entitled to distributions of principal as set forth below, from amounts
remaining on deposit in the Distribution Account after making
distributions pursuant to clause (i) above, an amount equal to the
Principal Distribution Amount, in the following order of priority;
(a) to the Class 1-A-1, Class 1-A-2, Class 2-A-1 and
Class 3-A-1 Certificates, allocated as described in Section
4.02(b), until the respective Class Principal Balances thereof
are reduced to zero; and
(b) sequentially to the Class X-0, Xxxxx X-0, Class M-3
and Class B Certificates, in that order, until the respective
Class Principal Balances are reduced to zero;
(B) on each Distribution Date (x) on and after the related
Stepdown Date and (y) as long as a Trigger Event is not in effect,
to the Certificateholders of the Class or Classes of Offered
Certificates then entitled to distributions of principal, an amount
equal to the Principal Distribution Amount in the following amounts
and order of priority:
(a) to the Senior Certificates, the lesser of (x) the
Principal Distribution Amount and (y) the Senior Certificates
Principal Distribution Amount, allocated as described in
Section 4.02(b), until the respective Class Principal Balances
thereof are reduced to zero;
(b) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Senior Certificateholders in clause
(ii)(B)(a) above and (y) the Class M-1 Principal Distribution
Amount, until the Class Principal Balance thereof has been
reduced to zero;
(c) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Senior Certificateholders in clause
(ii)(B)(a) above and to the Class M-1 Certificates in clause
(ii)(B)(b) above and (y) the Class M-2 Principal Distribution
Amount, until the Class Principal Balance thereof has been
reduced to zero;
(d) to the Class M-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Senior Certificateholders in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above and to the Class M-2 Certificates in clause
(ii)(B)(c) above and (y) the Class M-3 Principal Distribution
Amount, until the Class Principal Balance thereof has been
reduced to zero; and
(e) to the Class B Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Senior Certificateholders in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above, to the Class M-2 Certificates in clause
(ii)(B)(c) above and to the Class M-3 Certificates in clause
(ii)(B)(d) and (y) the Class B Principal Distribution Amount,
until the Class Principal Balance thereof has been reduced to
zero;
(iii) Any amount remaining after the distributions in clauses (i)
and (ii) above is required to be distributed in the following order of
priority with respect to the Certificates:
(A) to the Class M-1 Certificates, any Unpaid Interest Amounts
for such Class;
(B) to the Class M-1 Certificates, in an amount up to the
aggregate of any unreimbursed Applied Realized Loss Amounts
previously allocated to that Class, plus interest on those amounts
at the Pass-Through Rate for that Class in effect from time to time,
compounded monthly from the date the related Applied Realized Loss
Amount was allocated to such Class;
(C) to the Class M-2 Certificates, any Unpaid Interest Amounts
for such Class;
(D) to the Class M-2 Certificates, in an amount up to the
aggregate of any unreimbursed Applied Realized Loss Amounts
previously allocated to that Class, plus interest on those amounts
at the Pass-Through Rate for that Class in effect from time to time,
compounded monthly from the date the related Applied Realized Loss
Amount was allocated to such Class;
(E) to the Class M-3 Certificates, any Unpaid Interest Amounts
for such Class;
(F) to the Class M-3 Certificates, in an amount up to the
aggregate of any unreimbursed Applied Realized Loss Amounts
previously allocated to that Class, plus interest on those amounts
at the Pass-Through Rate for that Class in effect from time to time,
compounded monthly from the date the related Applied Realized Loss
Amount was allocated to such Class;
(G) to the Class B Certificates, any Unpaid Interest Amounts
for such Class;
(H) to the Class B Certificates, in an amount up to the
aggregate of any unreimbursed Applied Realized Loss Amounts
previously allocated to that Class, plus interest on those amounts
at the Pass-Through Rate for that Class in effect from time to time,
compounded monthly from the date the related Applied Realized Loss
Amount was allocated to such Class;
(I) to the Excess Reserve Fund Account, up to an amount equal
to any Basis Risk Payment for such Distribution Date;
(J) from funds on deposit in the Excess Reserve Fund Account,
an amount equal to any Basis Risk Carry Forward Amount with respect
to the LIBOR Certificates for such Distribution Date in the same
order and priority in which Accrued Certificate Interest is
allocated among those Classes of Certificates as described in
Section 4.02(a);
(K) to the Class X Certificates, the remainder of the Class X
Distributable Amount not distributed pursuant to Sections
4.02(a)(iii)(A)-(J); and
(L) concurrently, to the Class R Certificates and to the Class
LR Certificates, any remaining amount in respect of the Upper-Tier
REMIC and the Lower-Tier REMIC, respectively.
(iv) Solely for purposes of interest allocation calculations, the
portion of the interest component of Available Funds attributable to Group
1 Mortgage Loans will be allocated:
(a) first, pro rata (based on the accrued and unpaid
interest distributable pursuant to Section 4.02(a)(i)(A) to
the Class 1-A-1 and Class 1-A-2 Certificates), to the Class
1-A-1 and Class 1-A-2 Certificates, the Accrued Certificate
Interest and any Unpaid Interest Amounts for each such Class;
and
(b) second, pro rata, to the Class 2-A-1 and the Class
3-A-1 Certificates, the Accrued Certificate Interest and any
Unpaid Interest Amounts for each such Class, to the extent not
otherwise previously paid from the interest component of
Available Funds attributable to the Group 2 Mortgage Loans and
Group 3 Mortgage Loans.
(v) Solely for purposes of interest allocation calculations, the
portion of the interest component of Available Funds attributable to Group
2 Mortgage Loans will be allocated:
(a) first, to the Class 2-A-1 Certificates, the Accrued
Certificate Interest and any Unpaid Interest Amounts for the
Class 2-A-1 Certificates;
(b) second, pro rata, to the Class 1-A-1 and Class 1-A-2
Certificates (based on the accrued and unpaid interest
distributable pursuant to Section 4.02(a)(i)(A) to the Class
1-A-1 and Class 1-A-2 Certificates) and the Class 3-A-1
Certificates, the Accrued Certificate Interest and any Unpaid
Interest Amounts for each such Class, to the extent not
otherwise previously paid from the interest component of
Available Funds attributable to the Group 1 Mortgage Loans and
Group 3 Mortgage Loans; and
(vi) Solely for purposes of interest allocation calculations, the
portion of the interest component of Available Funds attributable to Group
3 Mortgage Loans will be allocated:
(a) first, to the Class 3-A-1 Certificates, the Accrued
Certificate Interest and any Unpaid Interest Amounts for each
such Class; and
(b) second, pro rata, to the Class 1-A-1 and Class 1-A-2
Certificates (based on the accrued and unpaid interest
distributable pursuant to Section 4.02(a)(i)(A) to the Class
1-A-1 and Class 1-A-2 Certificates) and the Class 2-A-1
Certificates, the Accrued Certificate Interest and any Unpaid
Interest Amounts for each such Class, to the extent not
otherwise previously paid from the interest component of
Available Funds attributable to the Group 1 Mortgage Loans and
Group 2 Mortgage Loans.
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive the related Accrued
Certificate Interest or the related Unpaid Interest Amounts, if any, then that
unpaid amount will be recoverable by the holders of those Classes, with interest
thereon, on future Distribution Dates, as Unpaid Interest Amounts, subject to
the priorities described above.
(vii) Any amounts distributed to the LIBOR Certificates in respect
of interest pursuant to Sections 4.02(a)(iii)(J) which constitute Basis
Risk Carry Forward Amounts shall first be deemed distributed by the
Upper-Tier REMIC as a distribution in respect of the Upper-Tier REMIC and
distributed thereby as a distribution to the Class X Interest in respect
of the Upper-Tier REMIC, and then distributed to the LIBOR Certificates
from the Excess Reserve Fund Account in the Grantor Trust as payments on
notional principal contracts in the nature of interest rate cap contracts.
(viii) On each Distribution Date, any Relief Act Reductions and Net
Prepayment Interest Shortfalls for such Distribution Date shall be
allocated as a reduction of the Accrued Certificate Interest for the
Offered Certificates, pro rata, based on the amount of interest to which
such Classes would otherwise be entitled.
(ix) On each Distribution Date, prior to distributions on the
Certificates as provided in Section 4.02(a)(i)-(iii), Available Funds
shall be deemed distributed to the Lower-Tier REMIC Regular Interests, in
each case, with respect to interest, at the related Pass-Through Rate
described in Section 2.07, and with respect to principal in the amounts
described in Section 2.07.
(x) Any Fair Market Value Excess collected on the Mortgage Loans in
connection with a termination of the Trust Fund pursuant to Section 9.01
shall be distributed to the Holders of the Class LR Certificates (in
respect of the Class LR Interest).
(b) All principal distributions to the holders of the Senior Certificates
on any Distribution Date will be allocated among the Group 1 Certificates, the
Class 2-A-1 Certificates and the Class 3-A-1 Certificates, pro rata, based on
the Senior Certificates Principal Allocation Percentage for each of those
classes for that Distribution Date; provided, that any principal distributions
allocated to the Group 1 Certificates shall be distributed, pro rata, to the
Class 1-A-1 and Class 1-A-2 Certificates, based on their respective Class
Certificate Balances immediately prior to such Distribution Date; provided,
however, that (a) if the Class Principal Balances of the Group 1 Certificates
are reduced to zero, then the remaining amount of principal distributions
distributable to the Group 1 Certificates on that Distribution Date, and the
amount of those principal distributions distributable on all subsequent
Distribution Dates, will be distributed, pro rata, to the holders of the Class
2-A-1 and Class 3-A-1 Certificates remaining outstanding until the Class
Principal Balances of the Class 2-A-1 and Class 3-A-1 Certificates have been
reduced to zero, (b) if the Class Principal Balance of the Class 2-A-1
Certificates is reduced to zero, then the remaining amount of principal
distributions distributable to the Class 2-A-1 Certificates on that Distribution
Date, and the amount of those principal distributions distributable on all
subsequent Distribution Dates, will be distributed, pro rata, to the holders of
the Group 1 Certificates and Class 3-A-1 certificates remaining outstanding
until the Class Principal Balances of the Group 1 Certificates and Class 3-A-1
Certificates have been reduced to zero and (c) if the Class Principal Balance of
the Class 3-A-1 Certificates is reduced to zero, then the remaining amount of
principal distributions distributable to the Class 3-A-1 Certificates on that
Distribution Date, and the amount of those principal distributions distributable
on all subsequent Distribution Dates, will be distributed, pro rata, to the
holders of the Group 1 Certificates and Class 2-A-1 Certificates remaining
outstanding until the Class Principal Balances of the Group 1 Certificates and
Class 2-A-1 Certificates have been reduced to zero. Any payments of principal to
the Group 1 Certificates will be made first from Available Funds relating to the
Group 1 Loans. Any payments of principal to the Class 2-A-1 Certificates will be
made first from Available Funds relating to the Group 2 Mortgage Loans. Any
payments of principal to the Class 3-A-1 Certificates will be made first from
Available Funds relating to the Group 3 Mortgage Loans.
Section 4.03 Allocation of Applied Realized Loss Amounts to the
Certificates. Any Applied Realized Loss Amounts shall be allocated to the Class
B, Class M-3, Class M-2 and Class M-1 Certificates, in that order, in each case,
until the respective Class Principal Balance of each such Class is reduced to
zero. No Applied Realized Loss Amounts shall be allocated to the Senior
Certificates. In the event Applied Realized Loss Amounts are allocated to any
Class of Certificates, their Class Principal Balance shall be permanently
reduced by the amount so allocated and no funds shall be distributed with
respect to the written down amounts or with respect to interest on the written
down amounts on that Distribution Date or any future Distribution Dates, unless
funds become available to make reimbursement payments to such Classes as
described in Section 4.02(a).
Section 4.04 Distribution Date Statements to Certificateholders. (a) Not
later than two Business Days prior to each Distribution Date, the Master
Servicer shall prepare and make available to the Trustee and not later than each
Distribution Date, the Master Servicer shall make available to each
Certificateholder, the Depositor and any other interested parties a statement
based in part on information provided by each Servicer setting forth the
following information with respect to the related distribution (in the case of
information furnished pursuant to (i) and (ii) below, the amounts shall be
expressed as a dollar amount per one thousand denomination:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest;
(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 Prepayment Interest 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 amount of the Servicing Fees with respect to such
Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii) 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;
(ix) 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;
(x) 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;
(xi) 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;
(xii) the aggregate amount of Realized Losses incurred during the
preceding calendar month; (
xiii) whether a Trigger Event has occurred and is continuing
(including the calculation thereof and the aggregate outstanding balance
of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cashflow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount; and
(xviii) the amount thereof allocable to interest, any Unpaid
Interest Amounts included in such distribution and any remaining Unpaid
Interest Amounts after giving effect to such distribution, any Basis Risk
Carry Forward Amount for such Distribution Date and the amount of all
Basis Risk Carry Forward Amount covered by withdrawals from the Excess
Reserve Fund Account on such Distribution Date.
(b) The Master Servicer's responsibility for disbursing the above
information to the Trustee, Depositor, Certificateholders and other interested
parties is limited to the availability, timeliness and the accuracy of the
information provided by each Servicer. The Master Servicer and, to the extent
received by the Trustee, the Trustee will make a copy of each statement provided
pursuant to this Section 4.04 (and, at the option of the Master Servicer and
Trustee, as applicable, any additional files containing the same information in
an alternative format) available each month to Certificateholders and other
interested parties, and other parties to this Agreement via its internet
website. The Master Servicer's internet website will initially be located at
"xxx.xxxxxxx.xxx." The Trustee's internet website will initially be located at
"xxx.xxxxxxxx.xxx/xxx." Assistance in using the Master Servicer's website can be
obtained by calling the Master Servicer's customer service desk at (301)
815-6600. Assistance in using the Trustee's website can be obtained by calling
the Trustee's customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution method are entitled to have a paper copy mailed to
them via first class mail by calling the Master Servicer's customer service desk
and indicating such. The Master Servicer shall have the right to change the way
the Distribution Date Statement is distributed in order to make such
distribution more convenient and more accessible and the Master Servicer shall
provide timely and adequate notification to the Certificateholders and the
parties to this Agreement regarding any such changes.
The Master Servicer shall also be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
As a condition to access the Master Servicer's or the Trustee's internet
website, the Master Servicer or Trustee, as applicable, may require registration
and the acceptance of a disclaimer. Neither the Master Servicer nor the Trustee
shall be liable for the dissemination of information in accordance with this
Agreement.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished upon request to each Person who at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and (a)(vii) of
this Section 4.04 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
Section 4.05 Determination of LIBOR. On each LIBOR Determination Date for
a Class of LIBOR Certificates, the Master Servicer shall determine LIBOR for the
applicable Distribution Date on the basis of the British Bankers' Association
("BBA") "Interest Settlement Rate" for one-month deposits in U.S. Dollars as
found on Telerate page 3750 as of 11:00 A.M. London time on such LIBOR
Determination Date. As used herein, "Telerate page 3750" means the display
designated as page 3750 on the Bridge Telerate Service.
If on any LIBOR Determination Date for a Class of LIBOR Certificates, the
Master Servicer is unable to determine LIBOR on the basis of the method set
forth in the preceding paragraph, LIBOR for the applicable Distribution Date
will be whichever is higher of (x) LIBOR as determined on the previous LIBOR
Determination Date for such Class of LIBOR Certificates or (y) the Reserve
Interest Rate. The "Reserve Interest Rate" will be the rate per annum that the
Master Servicer determines to be either (A) the arithmetic mean (rounding such
arithmetic mean upwards if necessary to the nearest whole multiple of 1/16%) of
the one-month U.S. Dollar lending rates that New York City banks selected by the
Master Servicer are quoting, on the relevant LIBOR Determination Date, to the
principal London offices of at least two leading banks in the London interbank
market or (B) in the event that the Master Servicer can determine no such
arithmetic mean, the lowest one-month U.S. Dollar lending rate that the New York
City banks selected by the Master Servicer are quoting on such LIBOR
Determination Date to leading European banks.
If on any LIBOR Determination Date for a Class of LIBOR Certificates, the
Master Servicer is required but is unable to determine the Reserve Interest Rate
in the manner provided in the preceding paragraph, LIBOR for the applicable
Distribution Date will be LIBOR as determined on the previous LIBOR
Determination Date for such Class of LIBOR Certificates, or, in the case of the
first LIBOR Determination Date, the Initial LIBOR Rate.
The establishment of LIBOR by the Master Servicer and the Master
Servicer's subsequent calculation of the rates of interest applicable to each of
the LIBOR Certificates in the absence of manifest error, will be final and
binding. After a LIBOR Determination Date, the Master Servicer shall provide the
Pass-Through Rates of the LIBOR Certificates for the related Distribution Date
to Certificate Owners or Holders of LIBOR Certificates who place a telephone
call to the Master Servicer at 000-000-0000 and make a request therefor.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be substantially in
the forms attached hereto in Exhibits A, B, D 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 9.02 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such Holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Trustee in writing at least five Business Days prior to the related
Record Date or (y) by check mailed by first class mail to such Certificateholder
at the address of such Holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless authenticated by the Trustee by manual signature, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their authentication. On the Closing
Date, the Trustee shall authenticate the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate transfers.
Section 5.02 Certificate Register; Registration of Transfer and Exchange
of Certificates. (a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of 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
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required by the
Trustee.
All Certificates surrendered for registration of transfer or exchange
shall be canceled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee (other than the Depositor or an
affiliate of the Depositor) shall each certify to the Trustee in writing the
facts surrounding the transfer in substantially the forms set forth in Exhibit I
(the "Transferor Certificate") and (i) deliver a letter in substantially the
form of either Exhibit J (the "Investment Letter") or Exhibit K (the "Rule 144A
Letter") or (ii) there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel addressed to the Trustee that such transfer may
be made pursuant to an exemption from the Securities Act. The Depositor shall
provide to any Holder of a Private Certificate and any prospective transferee
designated by any such Holder, information regarding the related Certificates
and the Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer
of any such Certificate without registration thereof under the Securities Act
pursuant to the registration exemption provided by Rule 144A. The Trustee and
the Master Servicer shall cooperate with the Depositor, in accordance with the
Depositor's request, in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor, to the extent in its
possession, such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor, and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made (other than
to the Depositor or an affiliate of the Depositor) unless the Trustee shall have
received either (i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Trustee (in the
event such Certificate is a Private Certificate, such requirement is satisfied
only by the Trustee's receipt of a representation letter from the transferee
substantially in the form of Exhibit J or Exhibit K), to the effect that such
transferee is not an employee benefit plan or arrangement subject to Section 406
of ERISA or a plan or arrangement subject to Section 4975 of the Code, or a plan
or arrangement subject to any federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement, nor using the assets of
any such plan or arrangement to effect such transfer, (ii) in the case of an
ERISA-Restricted Certificate other than a Residual Certificate, if the purchaser
is an insurance company, a representation that the purchaser is an insurance
company which is purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under PTCE 95-60 or (iii)
in the case of any ERISA-Restricted Certificate other than a Residual
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
or a plan or arrangement subject to Similar Law (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of either the Trustee or the Trust Fund,
addressed to the Trustee to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code or similar provisions of Similar Law and will
not subject the Trustee to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Private
Certificate, in the event the representation letter referred to in the preceding
sentence is not so furnished, such representation shall be deemed to have been
made to the Trustee by the transferee's (including an initial acquirer's)
acceptance of the ERISA-Restricted Certificates. Notwithstanding anything else
to the contrary herein, (a) any purported transfer of an ERISA-Restricted
Certificate, other than a Residual Certificate, to or on behalf of an employee
benefit plan subject to ERISA, the Code or Similar Law without the delivery to
the Trustee of an Opinion of Counsel satisfactory to the Trustee as described
above shall be void and of no effect and (b) any purported transfer of a
Residual Certificate to a transferee that does not make the representation in
clause (i) above shall be void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact not
permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
Neither the Trustee, nor the Master Servicer shall be required to monitor,
determine or inquire as to the compliance with the transfer restrictions with
respect to any ERISA Restricted Certificate that is a Book-Entry Certificate,
and neither the Trustee, nor the Master Servicer shall have any liability for
transfers of any such Book-Entry Certificates made through the book-entry
facilities of any Depository or between or among 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 Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee (other than the Depositor of an affiliate thereof) in the form
attached hereto as Exhibit H.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Residual Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee described in clauses (i) through (iv) of
the definition thereof.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel addressed to the Trustee
and the Master Servicer, which Opinion of Counsel shall not be an expense of the
Trust Fund, the Trustee, the Transferor or the Master Servicer, to the effect
that the elimination of such restrictions will not cause either Trust 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 Trustee, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in, a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.02 in connection with transfer shall be at the
expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing, qualified or able to properly
discharge its responsibilities as Depository, and (ii) the Depositor is unable
to locate a qualified successor, (y) the Depositor notifies the Trustee that it
elects to terminate the book-entry system through the Depository or (z) after
the occurrence of a Master Servicer Event of Termination, Certificate Owners
representing at least 51% of the Class Principal Balance of the Book-Entry
Certificates together advise the Trustee and the Depository through the
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Certificate
Owners, the Trustee, upon receipt of notice of such event, shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Master Servicer,
the Depositor nor the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Master Servicer and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Trustee may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.03 shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. The Master Servicer, the Trustee and
any agent of the Master Servicer or the Trustee may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and none of the Master Servicer, the Trustee nor any
agent of the Master Servicer or the Trustee shall be affected by any notice to
the contrary.
Section 5.05 Access to List of Certificateholders' Names and Addresses. If
three or more Certificateholders (a) request such information in writing from
the Trustee, (b) state that such Certificateholders desire to communicate with
other Certificateholders with respect to their rights under this Agreement or
under the Certificates, and (c) provide a copy of the communication which such
Certificateholders propose to transmit, or if the Depositor or Master Servicer
shall request such information in writing from the Trustee, then the Trustee
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Master Servicer or such Certificateholders at such recipients'
expense the most recent list of the Certificateholders of such Trust Fund held
by the Trustee, if any. The Depositor and every Certificateholder, by receiving
and holding a Certificate, agree that the Trustee shall not be held accountable
by reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Maintenance of Office or Agency. Certificates may be
surrendered for registration of transfer or exchange at the Corporate Trust
Office. The Trustee will give prompt written notice to the Certificateholders of
any change in such location of any such office or agency.
ARTICLE VI
THE DEPOSITOR, 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 and the Master Servicer will each keep in full
effect its existence, rights and franchises as a corporation or limited
partnership, as the case may be, under the laws of the United States or under
the laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation or legal entity, as the
case may be, in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor, 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, 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 or
the Master Servicer, 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 its rights under this Agreement or the Certificates which constitute
"unanticipated expenses incurred by the REMIC" within the meaning of the REMIC
Provisions, or (iii) any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Transferor and the Master Servicer, 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 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 Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
master servicer under this Agreement from and after the effective date of such
assumption agreement; (ii) each Rating Agency shall be given prior written
notice of the identity of the proposed successor to the Master Servicer and
shall confirm in writing to the Master Servicer and the Trustee that any such
sale, assignment or delegation would not result in a withdrawal or a downgrading
of the rating on any Class of Certificates in effect immediately prior to such
sale, assignment 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 after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Certificateholders, and such failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure, properly requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master Servicer
and the Trustee by the holders of Certificates evidencing Voting Rights
aggregating not less than 25% of the Certificates; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and
in effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or substantially all of its property; or
the Master Servicer admits in writing its inability to pay its debts
generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for
the benefit of its creditors, or voluntarily suspends payment of its
obligations; or
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Section 6.05.
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 at the direction of the Holders of Certificates evidencing
Voting Rights aggregating not less than 25% of the Certificates shall, in each
case, by notice in writing to the Master Servicer (and to the Trustee if given
by such Certificateholders), with a copy to the Rating Agencies, 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 Xxx and Xxxxxxx Mac approved
seller/servicer in good standing, which has a net worth of at least $15,000,000,
and which is willing to master service the Mortgage Loans and executes and
delivers to the Depositor and the Trustee an agreement accepting such delegation
and assignment, which contains an assumption by such Person of the rights,
powers, duties, responsibilities, obligations and liabilities of the Master
Servicer (other than liabilities of the Master Servicer under Section 6.03
hereof incurred prior to termination of the Master Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; and
provided further that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced, 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 shall give
prompt written notice thereof to Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Master Servicer Event of
Termination, the Trustee shall transmit by mail to all Certificateholders notice
of each such Master Servicer Event of Termination hereunder known to the
Trustee, unless such Master Servicer Event of Termination shall have been cured
or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE MASTER SERVICER
Section 8.01 Duties of Trustee. The Trustee, prior to the occurrence of a
Master Servicer Event of Termination and after the curing or waiver of all
Master Servicer Events of Termination that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Termination has occurred and
remains uncured or unwaived, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs, but only until such
time as a successor Master Servicer shall have been appointed hereunder.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that the Trustee shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Trustee shall notify the Certificateholders of such
non-conforming instrument in the event the Trustee, after so requesting, does
not receive a satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that:
(i) unless a Master Servicer Event of Termination of which the
Trustee has actual knowledge shall have occurred, and be continuing, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement which it believed in good faith to be genuine and to have
been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be conclusively determined by a court of
competent jurisdiction, that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising or omitting to exercise any trust or power
conferred upon the Trustee under this Agreement;
(iv) the Trustee shall not be accountable, shall have no liability
and makes no representation as to any acts or omissions hereunder of the
Master Servicer until such time as the Trustee may be required to act as
Master Servicer pursuant to Section 7.02 and thereupon only for the acts
or omissions of the Trustee as successor Master Servicer; and
(v) the Trustee shall promptly remit to the Master Servicer any
complaint, claim, demand, notice or other document (collectively, the
"Notices") delivered to the Trustee as a consequence of the assignment of
any Mortgage Loan hereunder and relating to the servicing of the Mortgage
Loans; provided that any such Notice (i) is delivered to the Trustee at
its Corporate Trust Office; and (ii) contains information sufficient to
permit the Trustee to make a determination that the real property to which
such document related is a Mortgaged Property. The Trustee shall have no
duty hereunder with respect to any Notice it may receive or which may be
alleged to have been delivered to or served upon it unless such Notice is
delivered to it or served upon it at its Corporate Trust Office and such
Notice contains the information required pursuant to clause (ii) of the
preceding sentence.
Section 8.02 Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, 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 other than with respect
to the Trustee's execution and authentication of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Master Servicer of any funds paid to the Depositor or the Master Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Depositor or the Master Servicer.
Section 8.04 Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates and may
transact business with the parties hereto and their Affiliates with the same
rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses. The Trustee shall be compensated
as separately agreed with the Master Servicer. The Trustee and any director,
officer, employee, agent or "control person" within the meaning of the
Securities Act of 1933, as amended, and the Securities Exchange of 1934, as
amended ("Control Person"), of the Trustee shall be indemnified by the Trust and
held harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal action
relating to (a) this Agreement (b) the Mortgage Loans or (c) the Certificates,
(ii) incurred in connection with the performance of any of the Trustee's duties
hereunder, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder, (iii) incurred by reason of any action of the
Trustee taken at the direction of the Certificateholders and (iv) resulting from
any error in any tax or information return prepared by the Master Servicer,
provided that any such loss, liability or expense constitutes an "unanticipated
expense incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee hereunder. Without
limiting the foregoing, and except for any such expense, disbursement or advance
as may arise from the Trustee's negligence, bad faith or willful misconduct, or
which would not be an "unanticipated expense" within the meaning of the second
preceding sentence, the Trustee shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement with respect to: (A)
the reasonable compensation and the expenses and disbursements of its counsel
not associated with the closing of the issuance of the Certificates, (B) the
reasonable compensation, expenses and disbursements of any accountant, engineer,
appraiser or other agent that is not regularly employed by the Trustee, to the
extent that the Trustee must engage such Persons to perform acts or services
hereunder and (C) printing and engraving expenses in connection with preparing
any Definitive Certificates. The Trust shall fulfill its obligations under this
paragraph from amounts on deposit from time to time in the Distribution Account.
Section 8.06 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation or association organized and doing business
under the laws of 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 LR Certificates
shall act as Tax Matters Person for the Lower-Tier REMIC and the holder of the
largest Percentage Interest of the Class 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
or the Trustee, respectively, if any such other tax arises out of or results
from a breach by the Master Servicer or the Trustee, respectively, of any of its
obligations under this Agreement, (ii) the Transferor, if any such tax arises
out of or results from the Transferor's obligation to repurchase a Mortgage Loan
pursuant to Section 2.02 or 2.03 or (iii) in all other cases, or in the event
that the Trustee, the Master Servicer or the Transferor fails to honor its
obligations under the preceding clause (i), (ii) or (iii), any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 3.10(b).
Section 8.12 Periodic Filings. (a) With respect to each Distribution Date,
prior to the issuance of the related monthly statement to Certificateholders
pursuant to Section 4.04 (each, a "Distribution Date Statement"), the Master
Servicer shall confirm that it has received all distribution and servicing
information required to be provided to the Master Servicer by each Servicer for
inclusion in such Distribution Date Statement. In the event the Master Servicer
determines that any such information has not been provided as required or is
materially incorrect, the Master Servicer shall immediately notify the
applicable Servicer and use its reasonable best efforts to cause the Servicer to
provide or correct, as the case may be, such information promptly (but in any
event in time to permit the Master Servicer to distribute the Distribution Date
Statement at the time required in this Agreement).
(b) Promptly upon receipt by the Master Servicer of (i) any officer's
certificate relating to any Servicer's annual compliance with the terms of the
applicable Servicing Agreement, (ii) any report of any Servicer's independent
public accountants relating to the Servicer's compliance with servicing
standards, as required under the applicable Servicing Agreement, and (iii) any
report of the Master Servicer's independent public accountants required pursuant
to Section 3.22, the Master Servicer shall review such officer's certificate and
reports. As part of the Form 10-K required to be filed pursuant to paragraph (c)
of this Section 8.12, the Master Servicer shall include each such Servicer's
annual statement of compliance (as well as any annual statement of compliance
required pursuant to Section 3.21), and each such accountant's report, as well
as a report of any significant deficiencies relating to any Servicer's
performance of its obligations under the applicable Servicing Agreement.
(c) The Master Servicer shall reasonably cooperate with the Depositor to
enable the Trust to satisfy its reporting requirements under the Exchange Act.
The Master Servicer shall prepare on behalf of the Trust any Forms 8-K and 10-K
customary for similar securities as required by the Exchange Act and the rules
and regulations promulgated thereunder, and the Master Servicer shall sign and
file (via the Securities and Exchange Commission's Electronic Data Gathering and
Retrieval System) such forms on behalf of the Trust.
(d) Each Form 8-K shall be filed by the Master Servicer within 15 days
after each Distribution Date, 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 (or such earlier date as may be required by the Exchange Act and
the rules and regulations promulgated thereunder), the Master Servicer shall
file a Form 10-K, in substance as required by applicable law or applicable
Securities and Exchange Commission staff's interpretations. Such Form 10-K shall
include as exhibits the annual statements of compliance, the accountant's
reports and any report of significant deficiencies relating to any Servicer's
performance of its obligations under the applicable Servicing Agreement
described in paragraph (b) of this Section 8.12, in each case to the extent they
have been timely delivered to the Master Servicer. If they are not so timely
delivered, the Master Servicer shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the Master
Servicer. The Master Servicer shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from or
relating to the Master Servicer's inability or failure to obtain any information
not resulting from its own negligence, bad faith or willful misconduct. Each
Form 10-K shall also include a certification in the form attached hereto as
Exhibit M or in such other form as may be required by Rules 13a-14 and 15d-14
under the Exchange Act, as applicable, and any directives or interpretations
thereof by the Securities and Exchange Commission (the "Certification"), which
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 any such
executed report, statement or information.
(f) Prior to January 30 of the first year in which the Master Servicer is
able to do so under applicable law, the Master Servicer shall file a Form 15
Suspension Notification with respect to the Trust.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of All Mortgage
Loans. (a) Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Transferor, the Master Servicer and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (i) the
purchase, in accordance with this Section 9.01, 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 9.01(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. 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 9.02 Final Distribution on the Certificates. If on any
Determination Date, the Master Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Account, the Master Servicer shall direct the Trustee
promptly to send a Notice of Final Distribution to each Certificateholder. If
the Master Servicer elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, at least 25 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 Trustee 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 Trustee
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 Trustee will give such notice
to each Rating Agency at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in the order
set forth in Section 4.02 hereof, on the final Distribution Date, in proportion
to their respective Percentage Interests, with respect to Certificateholders of
the same Class, an amount equal to (i) as to each 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 Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take reasonable steps,
or may appoint an agent to take reasonable steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets of the Upper-Tier REMIC
that remain subject hereto and (i) the Class LR Certificateholders shall be
entitled to all unclaimed funds and other assets of the Lower-Tier REMIC and
(ii) the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Upper-Tier REMIC, in each case that remain subject hereto.
Section 9.03 Additional Termination Requirements. (a) In the event the
Master Servicer exercises its purchase option as provided in Section 9.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the Master Servicer, to the effect that the failure to comply
with the requirements of this Section 9.03 will not (i) result in the imposition
of taxes on "prohibited transactions" on the Upper-Tier REMIC or the Lower-Tier
REMIC as defined in Section 860F of the Code, or (ii) cause any such REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(i) The notice given by the Master Servicer under Section 9.02 shall
provide that such notice constitutes the adoption of a plan of complete
liquidation of the Lower-Tier REMIC of the portion of the Trust Fund
related to the Mortgage Loans) as of the date of such notice (or, if
earlier, the date on which the first such notice is mailed to
Certificateholders). The Master Servicer shall also specify such date in a
statement attached to the final tax return of each of the Upper-Tier REMIC
and Lower-Tier REMIC; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Trustee
shall sell all of the assets of the Trust Fund to the Master Servicer for
cash at the purchase price specified in Section 9.01 and shall distribute
such cash within 90 days of such adoption in the manner specified in
Section 9.02.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to time
by the Depositor, the Transferor, the Master Servicer, the Custodian and the
Trustee without the consent of any of the Certificateholders (i) to cure any
ambiguity or mistake, (ii) to correct any defective provision herein or to
supplement any provision herein which may be inconsistent with any other
provision herein or in the Prospectus Supplement, (iii) to add to the duties of
the Depositor, the Trustee, the Transferor, the 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 Trustee (which Opinion of Counsel shall be an expense
of the party requesting the amendment, or if the Trustee requests the amendment,
the Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, however, that the amendment shall not be deemed to
adversely affect in any material respect the interests of the 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
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 under
the Code, (ii) avoid or minimize the risk of the imposition of any tax on any
REMIC pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements of
the Code, provided that the Trustee has been provided an Opinion of Counsel
addressed to the Trustee and the Master Servicer, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that such action is
necessary or helpful to, as applicable, (i) maintain such qualification, (ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply with
any such requirements of the Code.
Section 8.12 of this Agreement may also be amended by the Depositor, the
Transferor, the Master Servicer and the Trustee without the consent of any of
the Certificateholders, and without the need for any Opinions of Counsel (other
than the tax opinion described below) or Rating Agency confirmation, in the
event that new guidelines or procedures are issued by the Securities and
Exchange Commission with respect to the preparation and filing of Form 10-K and
the Certification required to be attached thereto as referenced in Section
8.12(d).
This Agreement may also be amended from time to time by the Depositor, the
Transferor, the Master Servicer, the Custodian and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in the preceding clause (i), without the consent of the Holders of
Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating 66% or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement (other than pursuant to the
second preceding paragraph) unless it shall have first received an Opinion of
Counsel addressed to the Trustee and the Master Servicer, which opinion shall
not be an expense of the Trustee, the Master Servicer or the Trust Fund, to the
effect that such amendment is permitted hereunder and will not cause the
imposition of any tax under the REMIC Provisions on 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 at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel addressed to the Trustee
(which Opinion shall not be an expense of the Trustee or the Trust Fund),
satisfactory to the Trustee that (i) such amendment is permitted and is not
prohibited by this Agreement and that all requirements for amending this
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any Certificateholder
or (B) the conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
Section 10.02 Recordation of Agreement; Counterparts. This Agreement (or
an abstract hereof, if acceptable to the applicable recording office) is subject
to recordation in all appropriate public offices for real property records in
all the towns or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public office or
elsewhere, such recordation to be effected by the Master Servicer at the expense
of the Trust on direction by the Trustee (acting at the written direction of a
Majority in Interest of the Certificateholders), but only upon direction
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance of the Trust Fund by the Depositor to the
Trustee be, and be construed as, an absolute sale thereof to the Trustee. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Depositor to the Trustee. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in such assets, then (i) this Agreement
shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of New York and (ii) the conveyance provided for in
this Agreement shall be deemed to be an assignment and a grant by the Depositor
to the Trustee, for the benefit of the Certificateholders, of a security
interest in all of the assets that constitute the Trust Fund, whether now owned
or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholder.
Section 10.05 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Master Servicer Event of Termination that
has not been cured;
(iii) The resignation or termination of the Master Servicer, the
Custodian or the Trustee and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
(v) The final payment to Certificateholders.
In addition, the Master Servicer shall promptly furnish to each Rating
Agency copies of the following:
(i) Each annual statement as to compliance described in Section
3.21;
(ii) Each annual independent public accountants' servicing report
described in Section 3.22; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.02 or 2.03.
(b) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to (a) in the case of the
Depositor, Mortgage Asset Securitization Transactions, Inc., 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, (b) in the case
of the Master Servicer, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, or such other address as the Master Servicer may
hereafter furnish to each other party to this Agreement in writing, (c) in the
case of Xxxxx Fargo in its capacity as Custodian, Xxxxx Fargo Bank, N.A., 0000
00xx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, 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 and (f) in the case of the Rating Agencies, the
address specified therefor in the definition corresponding to the name of such
Rating Agency. Notices to Certificateholders shall be deemed given when mailed,
first class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section 10.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 6.02 and this Section 10.07,
this Agreement may not be assigned by the Master Servicer without the prior
written consent of the Trustee and Depositor. Pursuant to Section 6.05, the
Master Servicer shall be permitted to pledge its rights as servicer hereunder to
a lender, provided that no such pledge shall permit the termination of the
Master Servicer as Master Servicer unless a successor servicer meeting the
requirements of Sections 6.04 and 7.02 hereunder shall have assumed the rights
and obligations of the Master Servicer hereunder.
Section 10.08 Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of a Master
Servicer Event of Termination and of the continuance thereof, as herein
provided, and unless the Holders of Certificates evidencing not less than 25% of
the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09 Inspection and Audit Rights. The Master Servicer agrees
that, on reasonable prior notice, it will permit and will cause each Servicer to
permit any representative of the Depositor or the Trustee during the Master
Servicer's or Servicer's, as the case may be, normal business hours, to examine
all the books of account, records, reports and other papers of the Master
Servicer or the Servicer, as the case may be, relating to the Mortgage Loans, to
make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Master Servicer or the Servicer, as the case may be,
hereby 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 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall be
borne by the Master Servicer or the related Servicer.
Section 10.10 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
[Signature Page Follows]
IN WITNESS WHEREOF, the Depositor, the Trustee, the Transferor, the Master
Servicer and 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/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate Director
By: /s/ Xxxxx XxXxxxxx
-------------------------------
Name: Xxxxx XxXxxxxx
Title: Associate Director
UBS REAL ESTATE SECURITIES INC.,
as Transferor
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate Director
By: /s/ Xxxxx XxXxxxxx
-------------------------------
Name: Xxxxx XxXxxxxx
Title: Associate Director
JPMORGAN CHASE BANK,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A.,
as Master Servicer and Custodian
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
(Available upon request to the Trustee.)
SCHEDULE II
MASTR Adjustable Rate Mortgages Trust 2004-2
Mortgage Pass-Through Certificates
Series 2004-2
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.
Capitalized terms used but not otherwise defined in this Schedule II shall have
the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series,
among the Transferor, Mortgage Asset Securitization Transactions, Inc., as
depositor, Xxxxx Fargo Bank, N.A., as master servicer and custodian, and
JPMorgan Chase Bank, as trustee.
(i) The information set forth in the Mortgage Loan Schedule was true
and correct in all material respects at the date or dates respecting which
such information is furnished as specified in the Mortgage Loan Schedule;
(ii) Immediately prior to the transfer and assignment contemplated
herein, the Transferor was the sole owner and holder of the Mortgage Loan
free and clear of any and all liens, pledges, charges or security
interests of any nature and has full right and authority to sell and
assign the same;
(iii) The Mortgage is a valid, subsisting and enforceable first lien
on the property therein described, and the Mortgaged Property is free and
clear of all encumbrances and liens having priority over the first lien of
the Mortgage except for liens for real estate taxes and special
assessments not yet due and payable and liens or interests arising under
or as a result of any federal, state or local law, regulation or ordinance
relating to hazardous wastes or hazardous substances, and, if the related
Mortgaged Property is a condominium unit, any lien for common charges
permitted by statute or homeowners association fees; and if the Mortgaged
Property consists of shares of a cooperative housing corporation, any lien
for amounts due to the cooperative housing corporation for unpaid
assessments or charges or any lien of any assignment of rents or
maintenance expenses secured by the real property owned by the cooperative
housing corporation; and any security agreement, chattel mortgage or
equivalent document related to, and delivered to the Trustee or to the
Master Servicer with, any Mortgage establishes in the Transferor a valid
and subsisting first lien on the property described therein and the
Transferor has full right to sell and assign the same to the Trustee;
(iv) Neither the Transferor nor any prior holder of the Mortgage or
the related Mortgage Note has modified the Mortgage or the related
Mortgage Note in any material respect, satisfied, canceled or subordinated
the Mortgage in whole or in part, released the Mortgaged Property in whole
or in part from the lien of the Mortgage, or executed any instrument of
release, cancellation, modification or satisfaction, except in each case
as is reflected in an agreement delivered to the Trustee or the Master
Servicer pursuant to Section 2.01;
(v) All taxes, governmental assessments, insurance premiums, and
water, sewer and municipal charges, which previously became due and owing
have been paid, or an escrow of funds has been established, to the extent
permitted by law, in an amount sufficient to pay for every such item 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,
earth movement other than earthquake, windstorm, flood, tornado or similar
casualty (excluding casualty from the presence of hazardous wastes or
hazardous substances, as to which the Transferor makes no
representations), so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the
premises were intended and to the best of the Transferor's knowledge,
there is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property;
(vii) The Mortgaged Property is free and clear of all mechanics' and
materialmen's liens or liens in the nature thereof; provided, however,
that this warranty shall be deemed not to have been made at the time of
the initial issuance of the Certificates if a title policy affording, in
substance, the same protection afforded by this warranty is furnished to
the Trustee by the Transferor;
(viii) Except for Mortgage Loans secured by co op shares and
Mortgage Loans secured by residential long term leases, the Mortgaged
Property consists of a fee simple estate in real property; all of the
improvements which are included for the purpose of determining the
appraised value of the Mortgaged Property lie wholly within the boundaries
and building restriction lines of such property and no improvements on
adjoining properties encroach upon the Mortgaged Property (unless insured
against under the related title insurance policy); and to the best of the
Transferor's knowledge, the Mortgaged Property and all improvements
thereon comply with all requirements of any applicable zoning and
subdivision laws and ordinances;
(ix) The Mortgage Loan meets, or is exempt from, applicable state or
federal laws, regulations and other requirements, pertaining to usury, and
the Mortgage Loan is not usurious;
(x) To the best of the Transferor's knowledge, all inspections,
licenses and certificates required to be made or issued with respect to
all occupied portions of the Mortgaged Property and, with respect to the
use and occupancy of the same, including, but not limited to, certificates
of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities;
(xi) All payments required to be made up to but not including the
Due Date immediately preceding the Cut Off Date for such Mortgage Loan
under the terms of the related Mortgage Note have been made, and no
payment under any Mortgage Loan has been 30 days delinquent more than one
time within twelve months prior to the Closing Date;
(xii) The Mortgage Note, the related Mortgage and other agreements
executed in connection therewith are genuine, and each is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law); and, to the best of the Transferor's knowledge, all
parties to the Mortgage Note and the Mortgage had legal capacity to
execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage has been duly and properly executed by the Mortgagor;
(xiii) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
(xiv) None of the mortgage loans are "High Cost" as such term is
defined in HOEPA or a reasonably equivalent provision as defined by the
applicable predatory and abusive lending laws.
(xv) The proceeds of the Mortgage Loans have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on site or off site improvements and
as to disbursements of any escrow funds therefor have been complied with
(except for escrow funds for exterior items which could not be completed
due to weather and escrow funds for the completion of swimming pools); and
all costs, fees and expenses incurred in making, closing or recording the
Mortgage Loan have been paid, except recording fees with respect to
Mortgages not recorded as of the Closing Date;
(xvi) The Mortgage Loan (except any Mortgage Loan secured by a
Mortgaged Property located in any jurisdiction, as to which an opinion of
counsel of the type customarily rendered in such jurisdiction in lieu of
title insurance is instead received) is covered by an American Land Title
Association mortgagee title insurance policy or other generally acceptable
form of policy or insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac,
issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac insuring
the originator, its successors and assigns, as to the first priority lien
of the Mortgage in the original principal amount of the Mortgage Loan and
subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage acceptable to mortgage
lending institutions in the area in which the Mortgaged Property is
located or specifically referred to in the appraisal performed in
connection with the origination of the related Mortgage Loan, (C) liens
created pursuant to any federal, state or local law, regulation or
ordinance affording liens for the costs of clean up of hazardous
substances or hazardous wastes or for other environmental protection
purposes and (D) such other matters to which like properties are commonly
subject which do not individually, or in the aggregate, materially
interfere with the benefits of the security intended to be provided by the
Mortgage; the Transferor is the sole insured of such mortgagee title
insurance policy, the assignment to the Trustee of the Transferor's
interest in such mortgagee title insurance policy does not require any
consent of or notification to the insurer which has not been obtained or
made, such mortgagee title insurance policy is in full force and effect
and will be in full force and effect and inure to the benefit of the
Trustee, no claims have been made under such mortgagee title insurance
policy, and no prior holder of the related Mortgage, including the
Transferor, has done, by act or omission, anything which would impair the
coverage of such mortgagee title insurance policy;
(xvii) The Mortgaged Property securing each Mortgage Loan is insured
by an insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire
and such hazards as are covered under a standard extended coverage
endorsement, in an amount which is not less than the lesser of 100% of the
insurable value of the Mortgaged Property and the outstanding principal
balance of the Mortgage Loan, but in no event less than the minimum amount
necessary to fully compensate for any damage or loss on a replacement cost
basis; if the Mortgaged Property is a condominium unit, it is included
under the coverage afforded by a blanket policy for the project; if upon
origination of the Mortgage Loan, the improvements on the Mortgaged
Property were in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards, a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of (A) the outstanding principal balance of the Mortgage Loan, (B)
the full insurable value of the Mortgaged Property and (C) the maximum
amount of insurance which was available under the National Flood Insurance
Act of 1968, as amended; and each Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and
expense;
(xviii) To the best of the Transferor's knowledge, no foreclosure
action is currently threatened or has been commenced with respect to the
Mortgage Loan and the Transferor has not waived any default, breach,
violation or event of acceleration;
(xix) No Mortgage Note or Mortgage is subject to any right of
rescission, set off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note or
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or Mortgage unenforceable, in whole or in part, or subject it to any
right of rescission, set off, counterclaim or defense, including the
defense of usury, and no such right of rescission, set off, counterclaim
or defense has been asserted with respect thereto;
(xx) Each Mortgage Note is payable in monthly payments, resulting in
complete amortization of the Mortgage Loan over a term of not more than
360 months;
(xxi) Each Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the realization against the Mortgaged Property of the benefits of the
security, including realization by judicial foreclosure (subject to any
limitation arising from any bankruptcy, insolvency or other law for the
relief of debtors), and there is no homestead or other exemption available
to the Mortgagor which would interfere with such right of foreclosure;
(xxii) To the best of the Transferor's knowledge, no Mortgagor is a
debtor in any state or federal bankruptcy or insolvency proceeding;
(xxiii) Each Mortgaged Property consists of a one to four unit
residential property, which may include a detached home, townhouse,
condominium unit or a unit in a planned unit development or, in the case
of Mortgage Loans secured by co op shares, leases or occupancy agreements;
(xxiv) The Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code;
(xxv) With respect to each Mortgage where a lost note affidavit has
been delivered to the Trustee in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence;
(xxvi) In the event that the Mortgagor is an inter vivos "living"
trust, (i) such trust is in compliance with Xxxxxx Mae or Xxxxxxx Mac
standards for inter vivos trusts and (ii) holding title to the Mortgaged
Property in such trust will not diminish any rights as a creditor
including the right to full title to the Mortgaged Property in the event
foreclosure proceedings are initiated;
(xxvii) If the Mortgage Loan is secured by a long term residential
lease, (1) the lessor under the lease holds a fee simple interest in the
land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent
and the acquisition by the holder of the Mortgage of the rights of the
lessee upon foreclosure or assignment in lieu of foreclosure or provide
the holder of the Mortgage with substantially similar protections; (3) the
terms of such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled to
receive written notice of, and opportunity to cure, such default or (b)
allow the termination of the lease in the event of damage or destruction
as long as the Mortgage is in existence; (4) the term of such lease does
not terminate earlier than five years after the maturity date of the
Mortgage Note; and (5) the Mortgaged Property is located in a jurisdiction
in which the use of leasehold estates in transferring ownership in
residential properties is a widely accepted practice;
(xxviii) The Mortgage Loan was originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act, as amended, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a
federal or state authority;
(xxix) The Mortgage Loan was underwritten in accordance with the
underwriting guidelines of the related Loan Seller in effect at the time
of origination with exceptions thereto exercised in a reasonable manner;
(xxx) The Loan Seller used no adverse selection procedures in
selecting the Mortgage Loan from among the outstanding first-lien,
residential mortgage loans owned by it which were available for sale to
the Transferor;
(xxxi) With respect to each Mortgage Loan, the Transferor is in
possession of a complete Mortgage File except for the documents which have
been delivered to the Trustee or which have been submitted for recording
and not yet returned;
(xxxii) As of the Cut-off Date, the range of original Loan-to-Value
Ratios of the Mortgage Loans is 26.55% to 95.00%, and 184 Mortgage Loans,
representing 13.50% of the Cut-off Date Pool Balance, had Loan-to-Value
Ratios at origination in excess of 80%. Each such Mortgage Loan is subject
to a Primary Insurance Policy; and
(xxxiii) With respect to each Mortgage Loan, the related Servicing
Agreement requires the related Servicer to deposit into the related
Protected Account an amount equal to all payments of principal and
interest on such Mortgage Loan that are delinquent at the close of
business on the related Determination Date and not previously advanced by
such Servicer. The obligation of such Servicer to advance such payments as
to such Mortgage Loan will continue through the final disposition or
liquidation of the Mortgaged Property, unless such Servicer deems such
advance to be nonrecoverable from liquidation proceeds, REO disposition
proceeds, condemnation proceeds or insurance proceeds with respect to such
Mortgage Loan.
EXHIBIT A-1-A-1
(FORM OF CLASS 1-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: 1-A-1-[ ]
Date of Pooling and Servicing Agreement: As of February 1, 2004
First Distribution Date: March 25, 2004
Last Scheduled Distribution Date: March 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 of this Class: $14,253,000
CUSIP: 576433 KB 1
ISIN: US576433KB19
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
Class 1-A-1
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class with respect to a Trust Fund consisting primarily of
conventional mortgage loans (the "Mortgage Loans") secured
by first liens on one- to four-family residential
properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, 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, N.A., as master servicer and custodian (the "Servicer") and
JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the applicable Mortgage
Loans pursuant to the terms of the Agreement. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
as Trustee
By: ________________________
Countersigned:
By: _________________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-1-A-2
(FORM OF CLASS 1-A-2 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: 1-A-2-[ ]
Date of Pooling and Servicing Agreement: As of February 1, 2004
First Distribution Date: March 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Pass-Through Rate: Floating in accordance
with the Agreement
Initial Certificate Principal Balance
of this Certificate ("Denomination"): $[____________]
Initial Certificate Principal Balance
of all Certificates of this Class: $20,619,000
CUSIP: 576433 KC 9
ISIN: US576433KC91
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
Class 1-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 Servicer, 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, N.A., as master servicer and custodian (the "Servicer") and
JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the applicable Mortgage
Loans pursuant to the terms of the Agreement. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
as Trustee
By: _____________________________
Countersigned:
By: _____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-2-A-1
(FORM OF CLASS 2-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: 2-A-1-[ ]
Date of Pooling and Servicing Agreement: As of February 1, 2004
First Distribution Date: March 25, 2004
Last Scheduled Distribution Date: March 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 of this Class: $47,222,000
CUSIP: 576433 KD 1
ISIN: US576433KD74
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
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 Servicer, 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, N.A., as master servicer and custodian (the "Servicer") and
JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the applicable Mortgage
Loans pursuant to the terms of the Agreement. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
as Trustee
By: ________________________________
Countersigned:
By: _____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-3-A-1
(FORM OF CLASS 3-A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS.
Certificate No.: 3-A-1-[ ]
Date of Pooling and Servicing Agreement: As of February 1, 2004
First Distribution Date: March 25, 2004
Last Scheduled Distribution Date: March 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 of this Class: $184,943,000
CUSIP: 576433 KE 5
ISIN: US576433KE57
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 200 4-2
Mortgage Pass-Through Certificates, Series 200 4-2
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 Servicer, 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, N.A., as master servicer and custodian (the "Servicer") and
JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the applicable Mortgage
Loans pursuant to the terms of the Agreement. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
as Trustee
By: _______________________________
Countersigned:
By: _______________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
(EXHIBIT A-M)
(FORM OF CLASS M CERTIFICATES)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No.: M-1-[ ]
M-2-[ ]
M-3-[ ]
Date of Pooling and Servicing Agreement: As of February 1, 2004
First Distribution Date: March 25, 2004
Last Scheduled Distribution Date: March 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 of this Class: $[7,178,000] for M-1
$[6,461,000] for M-2
$[4,163,000] for M-3
CUSIP: [576433 KF 2] for M-1
[576433 KG 0] for M-2
[576433 KA 3] for M-3
ISIN: [US576433KF23] for M-1
[US576433KG06] for M-2
[US576433KA36] for M-3
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
Class M-[ ]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class with respect to a Trust Fund consisting primarily of
conventional mortgage loans (the "Mortgage Loans") secured
by first liens on one- to four-family residential
properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, 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, N.A., as master servicer and custodian (the "Servicer") and
JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the applicable Mortgage
Loans pursuant to the terms of the Agreement. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
as Trustee
By: ______________________________
Countersigned:
By: ______________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-R
(FORM OF CLASS [LR] [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 TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
ATTACHED TO THE AGREEMENT.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR MATERIALLY SIMILAR PROVISIONS OF APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW"). NOTWITHSTANDING ANYTHING ELSE TO
THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE OR SIMILAR LAW SHALL
BE VOID AND OF NO EFFECT.
Certificate No.: [LR-[ ]] [R-[ ]]
Date of Pooling and Servicing Agreement: As of February 1, 2004
First Distribution Date: March 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Percentage Interest of this
Certificate ("Denomination"): [____________]%
CUSIP: [576433 KL 9] for LR
[576433 KK 1] for R
ISIN: [US576433KL90] for LR
[US576433KK18] for R
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
evidencing the distributions allocable to the Class [LR]
[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
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer, 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, N.A., as master servicer and custodian
(the "Servicer") 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 [LR] [R]
Certificate at the Corporate Trust Office of the Trustee.
No transfer of a Class [LR] [R] Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, Section 4975 of the Code or Similar Law, nor a
person acting on behalf of any such plan, which representation letter shall not
be an expense of the Trustee or the Servicer. Notwithstanding anything else to
the contrary herein any purported transfer of a Class [LR] [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 [LR] [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 [LR] [R] Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class [LR] [R] Certificate may be
transferred without delivery to the Trustee of (a) a transfer affidavit of the
proposed transferee and (b) a transfer certificate of the transferor, each of
such documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class [LR] [R] Certificate
must agree to require a transfer affidavit and to deliver a transfer certificate
to the Trustee as required pursuant to the Agreement, (iv) each person holding
or acquiring an Ownership Interest in this Class [LR] [R] Certificate must agree
not to transfer an Ownership Interest in this Class [LR] [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 [LR] [R] Certificate in violation of such restrictions will be absolutely
null and void and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
as Trustee
By: _____________________________
Countersigned:
By: _____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT B
(FORM OF CLASS B CERTIFICATE)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND OTHER ASSETS.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No.: B-[ ]
Date of Pooling and Servicing Agreement: As of February 1, 2004
First Distribution Date: March 25, 2004
Last Scheduled Distribution Date: March 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 of this Class: $2,297,781
CUSIP: 576433 KH 8
ISIN: US576433KH88
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
Class B
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class with respect to a Trust Fund consisting primarily of
conventional loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Balance at any time may be
less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, 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, N.A., as master servicer and custodian (the "Servicer") and
JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the Mortgage Loans
pursuant to the terms of the Agreement. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
as Trustee
By: _____________________________
Countersigned:
By: ________________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT C
[RESERVED]
EXHIBIT D
(FORM OF CLASS X CERTIFICATE)
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR MATERIALLY SIMILAR PROVISIONS OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW"), OR, IF THE TRANSFEREE IS
AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE
COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE
ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE OR SIMILAR VIOLATION OF
SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION
IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR
THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No.: X-[ ]
Date of Pooling and Servicing Agreement: As of February 1, 2004
First Distribution Date: March 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Percentage Interest of this
Certificate ("Denomination"): [____________]%
CUSIP: 576433 KJ 4
ISIN: US576433KJ45
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
Class X
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
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer, 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, N.A., as master servicer and the custodian (the "Servicer")
and JPMorgan Chase Bank, as trustee (the "Trustee"). Distributions on this
Certificate will be made primarily from collections on the Mortgage Loans
pursuant to the terms of the Agreement. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a transfer is
to be made within three years from the date of the initial issuance of
Certificates pursuant hereto, there shall also be delivered (except in the case
of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee an
Opinion of Counsel that such transfer may be made pursuant to an exemption from
the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Servicer, or the
Depositor. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation (letter) from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Title I of ERISA, Section 4975 of the Code, or
a plan subject to any federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, nor a person acting on
behalf of any such plan, which representation letter shall not be an expense of
the Trustee or the Servicer, (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the
case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, Section 4975 of the Code or Similar Law
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Servicer to the effect that the
purchase or holding of such Certificate will not result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code or similar provisions of Similar
Law and will not subject the Trustee to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense of
the Trustee or the Servicer. (Such representation shall be deemed to have been
made to the Trustee by the Transferee's acceptance of a Certificate of this
Class and by a beneficial owner's acceptance of its interest in a Certificate of
this Class.) Notwithstanding anything else to the contrary herein, any purported
transfer of a Certificate of this Class to or on behalf of an employee benefit
plan subject to ERISA, the Code or Similar Law without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no effect.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
as Trustee
By: ____________________________
Countersigned:
By: _______________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT E
(Form of Reverse of Certificates)
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Asset Securitization Transactions, Inc. MASTR Adjustable
Rate Mortgages Trust 2004-2, Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Office of the Trustee or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Transferor, the Depositor, the Servicer and the Trustee with the consent
of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office of the Trustee, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, and the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Servicer, the Trustee, nor any such agent shall be affected by
any notice to the contrary.
On any Distribution Date on which the Pool Principal Balance of the
Mortgage Loans is less than 5% of the aggregate Cut-off Date Principal Balances
of the Mortgage Loans, the Servicer will have the option to repurchase, in
whole, from the Trust Fund all remaining Mortgage Loans and all property
acquired in respect of the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund or
the disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person named
in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Statements should be mailed to _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
This information is provided by, _________________________________________
the assignee named above, or __________________________________________________,
as its agent.
STATE OF )
) ss.:
COUNTY OF )
On the___day of _______, 200_ before me, a notary public in and for said
State, personally appeared ___________________________________, known to me who,
being by me duly sworn, did depose and say that he executed the foregoing
instrument.
-------------------------------------
Notary Public
[Notarial Seal]
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Pooling and Servicing Agreement, dated February 1, 2004, among
Mortgage Asset Securitization Transactions, Inc., as depositor, UBS
Real Estate Securities Inc., as transferor, Xxxxx Fargo Bank, N.A.,
as master servicer and custodian, and JPMorgan Chase Bank, as
trustee, in connection with MASTR Adjustable Rate Mortgages Trust
2004-2, Mortgage Pass-Through Certificates, Series 0000-0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
a Custodian acting on behalf of the Trustee, hereby certifies that, as to each
related Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan listed on the attached schedule)
it has received:
(i)(a) the original Mortgage Note or (b) with respect to any Lost Mortgage
Note, a lost note affidavit from the Depositor stating that the original
Mortgage Note was lost or destroyed; and
(ii) a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File of any of the related Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
[NAME OF Custodian],
as Custodian
By: ______________________________
Name:
Title:
EXHIBIT G
FORM OF FINAL CERTIFICATION OF Custodian
[date]
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
UBS Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement, dated February 1, 2004,
among Mortgage Asset Securitization Transactions, Inc., as
depositor, UBS Real Estate Securities Inc., as transferor,
Xxxxx Fargo Bank, N.A., as master servicer and custodian,
and JPMorgan Chase Bank, as trustee, in connection with
MASTR Adjustable Rate Mortgages Trust 2004-2, Mortgage
Pass-Through Certificates, Series 0000-0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, acting on behalf of the Trustee, hereby certifies that as to each
related Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attached Document Exception Report)
it has received:
(i) the original Mortgage Note endorsed in the form provided in Section
2.01(b) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the transferor to the
Depositor.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided in
Section 2.01(b) of the Pooling and Servicing Agreement, or, if the Depositor has
certified or the Master Servicer otherwise knows that the related Mortgage has
not been returned from the applicable recording office, a copy of the assignment
of the Mortgage (excluding information to be provided by the recording office).
(iv) The original or duplicate original recorded assignment or assignments
of the Mortgage showing a complete chain of assignment from the originator to
the Depositor.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by the
title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2), (3), (4),
(9), (16) and (21) of the definition of the "Mortgage Loan Schedule" in Section
1.01 of the Pooling and Servicing Agreement accurately reflects information set
forth in the Mortgage File.
The 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 RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2004-2
Mortgage Asset Securitization Transactions, Inc.
Mortgage Pass-Through Certificates
Series 2004-2
1. The undersigned is an officer of _______, the proposed Transferee of an
Ownership Interest in a Class [LR] [R] Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement dated as of February 1, 2004
(the "Agreement") among Mortgage Asset Securitization Transactions, Inc., as
depositor, UBS Real Estate Securities Inc., as transferor (the "Transferor"),
Xxxxx Fargo Bank, N.A., as master servicer 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 Trustee a certificate substantially in the
form set forth as Exhibit I to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate. The Transferee historically has paid its debts as they have become
due and intends to do so in the future. The Transferee understands that the
taxable income and tax liability with respect to this Certificate will exceed
distributions with respect to the Certificate in some or all periods and intends
to pay all taxes with respect to the Certificate as they become due.
8. The Transferee's taxpayer identification number is _____.
9. The Transferee is a U.S. Person as defined in Code Section 7701(a)(30)
or is not a U.S. Person and has furnished the Transferor and the Trustee with a
duly completed Internal Revenue Service Form W-8ECI or any applicable successor
form.
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The Transferee will not cause income with respect to the Certificate
to be attributable to a foreign permanent establishment or fixed base, within
the meaning of an applicable income tax treaty, of the Transferee or any other
United States Person.
12. Check one of the following paragraphs:
o 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.
o 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.
o 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 political subdivision
thereof, an estate whose income is subject to United States federal income tax
purposes regardless of its source or a trust if a court within the United States
is able to exercise primary supervision over the administration of the trust and
one or more persons described in this clause (v) have the authority to control
all substantial decisions of the trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as United States persons) unless such Person has
furnished the transferor and the Trustee with a duly completed Internal Revenue
Service Form W-8ECI or any applicable successor form, (vi) any Person with
respect to whom income on any residual certificate is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
treaty, of such Person or any other Person and (vii) any other Person so
designated by the Depositor based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Residual Certificate to such Person may cause a
REMIC hereunder to fail to qualify as a REMIC at any time that the Certificates
are outstanding. The terms "United States," "State" and "International
Organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality of
the United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
the Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
EXHIBIT 2
to EXHIBIT H
Section 5.02(c) of the Agreement
Each Person who has or who acquires any Ownership Interest in a Residual
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions, and the rights
of each Person acquiring any Ownership Interest in a Residual Certificate are
expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Residual
Certificate shall be a Permitted Transferee and shall promptly notify the
Trustee of any change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Residual Certificate may be registered on
the Closing Date or thereafter transferred, and the Trustee shall not register
the Transfer of any Residual Certificate unless, in addition to the certificates
required to be delivered to the Trustee under subparagraph (b) above, the
Trustee shall have been furnished with an affidavit (a "Transfer Affidavit") of
the initial owner or the proposed transferee in the form attached hereto as
Exhibit H.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership Interest in
a Residual Certificate, (B) to obtain a Transfer Affidavit from any Person for
whom such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in a
Residual Certificate in violation of the provisions of this Section 5.02(c)
shall be absolutely null and void and shall vest no rights in the purported
transferee. If any purported transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then the
last preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by Section 5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder who is
not a Permitted Transferee described in clauses (i) through (iv) of the
definition thereof.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trust Fund, the Trustee, the Loan Seller, the
Transferors or the Servicer, to the effect that the elimination of such
restrictions will not cause a REMIC hereunder to fail to qualify as a REMIC at
any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
----------------------
Date
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services/Structured Finance Services
Re: Mortgage Asset Securitization Transactions, Inc., MASTR
Adjustable Rate Mortgages Trust 2004-2, Mortgage
Pass-Through Certificates, Series 2004-2, Class [LR] [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 [LR] [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 [LR] [R] Certificate
when due, and (iii) we have no reason to believe that the statements made in
paragraph 11 of the Transferee's Transfer Affidavit are false.
Very truly yours,
-----------------------------
Print Name of Transferor
By:__________________________
Authorized Officer
EXHIBIT J
FORM OF INVESTMENT LETTER (NON-RULE 144A)
----------------------
Date
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services/Structured Finance Services
Re: Mortgage Asset Securitization Transactions, Inc., MASTR
Adjustable Rate Mortgages Trust 2004-2, Mortgage
Pass-Through Certificates, Series 2004-2, Class [ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a plan or
arrangement subject to any federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor are we
acting on behalf of any such plan or arrangement, nor are we using the assets of
any such plan or arrangement to effect such acquisition or (ii) in the case of
the Class X Certificates, if we are an insurance company, we are an insurance
company that is purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase
and holding of such Certificates are covered under Sections I and III of PTCE
95-60, (e) we are acquiring the Certificates for investment for our own account
and not with a view to any distribution of such Certificates (but without
prejudice to our right at all times to sell or otherwise dispose of the
Certificates in accordance with clause (g) below), (f) we have not offered or
sold any Certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section
5 of the Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt from
such registration requirements, and if requested, we will at our expense provide
an opinion of counsel satisfactory to the addressees of this Certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
--------------------------------
Print Name of Transferor
By:_____________________________
Authorized Officer
EXHIBIT K
FORM OF RULE 144A LETTER
----------------------
Date
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services/Structured Finance Service
Re: Mortgage Asset Securitization Transactions, Inc., MASTR
Adjustable Rate Mortgages Trust 2004-2, Mortgage
Pass-Through Certificates, Series 2004-2, 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) in the case of
the Class X Certificates, 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, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000-0000
Attn: Inventory Control--MARM 2004-2
Re: Pooling and Servicing Agreement, dated as of February 1, 2004, by
and among Mortgage Asset Securitization Transactions, Inc., as
depositor, UBS Real Estate Securities Inc., as transferor, Xxxxx
Fargo Bank, N.A., as master servicer 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, N.A.
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 2004-2
Mortgage Pass-Through Certificates
Series 2004-2
This Certification is being made pursuant to Section 8.12(d) of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") relating
to the above-referenced Series, among UBS Real Estate Securities Inc., Mortgage
Asset Securitization Transactions, Inc., as depositor (the "Depositor"), Xxxxx
Fargo Bank, N.A., as master servicer and custodian (the "Master Servicer"), and
JPMorgan Chase Bank, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings assigned in the Pooling and Servicing
Agreement.
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on
Form 8-K containing distribution date reports filed in respect of
periods included in the year covered by this annual report, of the
Trust;
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were made,
not misleading as of the last day of the period covered by this
annual report;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Master Servicer under the Pooling and
Servicing Agreement for inclusion in these reports is included in
these reports;
4. I am responsible for reviewing the activities performed by the
Servicers under the Servicing Agreements and based upon my knowledge
and the annual compliance review required under the Servicing
Agreements, and except as disclosed in the reports, each Servicer
has fulfilled its obligations under the related Servicing Agreement;
and
5. The reports disclose all significant deficiencies relating to each
Servicer's compliance with the minimum servicing standards based
upon the report provided by an independent public accountant, after
conducting a review in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar procedure as set
forth in the related Servicing Agreement, that is included in these
reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of each
Servicer, Depositor or Trustee].
Capitalized terms used but not defined herein have the meanings assigned
in the pooling and servicing agreement dated as of February 1, 2004 (the
"Pooling and Servicing Agreement") among Mortgage Asset Securitization
Transactions, Inc., as depositor, UBS Real Estate Securities Inc., as
transferor, Xxxxx Fargo Bank, N.A., as master servicer and custodian, and
JPMorgan Chase Bank, as trustee.
---------------------------------
[Signature]
Name:____________________________
Title:___________________________
