MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. Depositor OCWEN LOAN SERVICING, LLC Servicer WELLS FARGO BANK, N.A. Master Servicer and Trust Administrator and Trustee POOLING AND SERVICING AGREEMENT Dated as of February 1, 2006 MASTR Asset Backed...
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
Depositor
OCWEN
LOAN SERVICING, LLC
Servicer
▇▇▇▇▇
FARGO BANK, N.A.
Master
Servicer and Trust Administrator
and
U.S.
BANK
NATIONAL ASSOCIATION
Trustee
Dated
as
of February 1, 2006
Mortgage
Pass-Through Certificates
Series
2006-AM1
TABLE
OF
CONTENT
|
ARTICLE
I
|
|
|
DEFINITIONS
|
|
|
SECTION
1.01.
|
Defined
Terms.
|
|
SECTION
1.02.
|
Allocation
of Certain Interest Shortfalls.
|
|
SECTION
1.03.
|
Rights
of the NIMS Insurer.
|
|
ARTICLE
II
|
|
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
|
|
SECTION
2.01.
|
Conveyance
of the Mortgage Loans.
|
|
SECTION
2.02.
|
Acceptance
of REMIC I by Trustee.
|
|
SECTION
2.03.
|
Repurchase
or Substitution of Mortgage Loans by the Originator or the
Seller.
|
|
SECTION
2.04.
|
Reserved.
|
|
SECTION
2.05.
|
Representations,
Warranties and Covenants of the Servicer and the Master
Servicer.
|
|
SECTION
2.06.
|
Conveyance
of REMIC Regular Interests and Acceptance of REMIC I, REMIC II, REMIC
III, REMIC IV, REMIC V and REMIC VI by the Trustee; Issuance of
Certificates.
|
|
SECTION
2.07.
|
Issuance
of Class R Certificates and Class R-X Certificates.
|
|
SECTION
2.08.
|
Purposes
of the Trust.
|
|
ARTICLE
III
|
|
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
|
|
SECTION
3.01.
|
Servicer
to Act as Servicer.
|
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers.
|
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
|
SECTION
3.04.
|
Liability
of the Servicer.
|
|
SECTION
3.05.
|
No
Contractual Relationship Between Sub-Servicers and the Trustee, the
NIMS
Insurer or Certificateholders.
|
|
SECTION
3.06.
|
Assumption
or Termination of Sub-Servicing Agreements by Master
Servicer.
|
|
SECTION
3.07.
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.08.
|
Sub-Servicing
Accounts.
|
|
SECTION
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.10.
|
Collection
Account.
|
|
SECTION
3.11.
|
Withdrawals
from the Collection Account.
|
|
SECTION
3.12.
|
Investment
of Funds in the Collection Account.
|
|
SECTION
3.13.
|
[Reserved].
|
|
SECTION
3.14.
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
|
SECTION
3.15.
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.16.
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.17.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.18.
|
Servicing
Compensation.
|
|
SECTION
3.19.
|
Reports;
Collection Account Statements.
|
|
SECTION
3.20.
|
Statement
as to Compliance.
|
|
SECTION
3.21.
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.22.
|
Access
to Certain Documentation.
|
|
SECTION
3.23.
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.24.
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3.25.
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
|
SECTION
3.26.
|
Advance
Facility
|
|
ARTICLE
IIIA
|
|
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
|
|
SECTION
3A.01.
|
Master
Servicer to Act as Master Servicer
|
|
SECTION
3A.02.
|
[Reserved].
|
|
SECTION
3A.03.
|
Monitoring
of Servicer.
|
|
SECTION
3A.04.
|
Fidelity
Bond
|
|
SECTION
3A.05.
|
Power
to Act; Procedures.
|
|
SECTION
3A.06.
|
Due
on Sale Clauses; Assumption Agreements.
|
|
SECTION
3A.07.
|
[Reserved].
|
|
SECTION
3A.08.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
|
SECTION
3A.09.
|
Compensation
for the Master Servicer.
|
|
SECTION
3A.10.
|
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3A.11.
|
Distribution
Account.
|
|
SECTION
3A.12.
|
Permitted
Withdrawals and Transfers from the Distribution Account.
|
|
ARTICLE
IV
|
|
|
PAYMENTS
TO CERTIFICATEHOLDERS
|
|
|
SECTION
4.01.
|
Distributions.
|
|
SECTION
4.02.
|
Statements
to Certificateholders.
|
|
SECTION
4.03.
|
Remittance
Reports; Advances.
|
|
SECTION
4.04.
|
Allocation
of Realized Losses.
|
|
SECTION
4.05.
|
Compliance
with Withholding Requirements.
|
|
SECTION
4.06.
|
Exchange
Commission Filings; Additional Information.
|
|
SECTION
4.07.
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
4.08.
|
Swap
Account.
|
|
SECTION
4.09.
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
SECTION
4.10.
|
Cap
Account.
|
|
ARTICLE
V
|
|
|
THE
CERTIFICATES
|
|
|
SECTION
5.01.
|
The
Certificates.
|
|
SECTION
5.02.
|
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.
|
Certain
Available Information.
|
|
ARTICLE
VI
|
|
|
THE
DEPOSITOR AND THE MASTER SERVICER
|
|
|
SECTION
6.01.
|
Liability
of the Depositor, the Servicer and the Master Servicer.
|
|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor or the Master
Servicer.
|
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Servicer, the Master Servicer
and
Others.
|
|
SECTION
6.04.
|
Limitation
on Resignation of the Servicer; Assignment of Master
Servicing.
|
|
SECTION
6.05.
|
Successor
Master Servicer.
|
|
SECTION
6.06.
|
Rights
of the Depositor in Respect of the Servicer.
|
|
SECTION
6.07.
|
Duties
of the Credit Risk Manager.
|
|
SECTION
6.08.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
6.09.
|
Removal
of the Credit Risk Manager.
|
|
ARTICLE
VII
|
|
|
DEFAULT
|
|
|
SECTION
7.01.
|
Servicer
Events of Default and Master Servicer Events of
Termination.
|
|
SECTION
7.02.
|
Master
Servicer to Act; Appointment of Successor Servicer.
|
|
SECTION
7.03.
|
Trustee
to Act; Appointment of Successor Master Servicer.
|
|
SECTION
7.04.
|
Notification
to Certificateholders.
|
|
SECTION
7.05.
|
Waiver
of Servicer Events of Default and Master Servicer Events of
Termination.
|
|
SECTION
7.06.
|
Survivability
of Servicer and Master Servicer Liabilities.
|
|
ARTICLE
VIII
|
|
|
CONCERNING
THE TRUSTEE AND THE TRUST ADMINISTRATOR
|
|
|
SECTION
8.01.
|
Duties
of Trustee and Trust Administrator.
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee and the Trust
Administrator
|
|
SECTION
8.03.
|
Neither
Trustee nor Trust Administrator Liable for Certificates or Mortgage
Loans.
|
|
SECTION
8.04.
|
Trustee
and Trust Administrator May Own Certificates.
|
|
SECTION
8.05.
|
Trust
Administrator’s and Trustee’s Fees and Expenses.
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee and Trust Administrator.
|
|
SECTION
8.07.
|
Resignation
and Removal of the Trustee or Trust Administrator.
|
|
SECTION
8.08.
|
Successor
Trustee or Trust Administrator.
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee or Trust Administrator.
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11.
|
Appointment
of Office or Agency; Appointment of Custodian.
|
|
SECTION
8.12.
|
Representations
and Warranties.
|
|
ARTICLE
IX
|
|
|
TERMINATION
|
|
|
SECTION
9.01.
|
Termination
Upon Repurchase or Liquidation of All Mortgage Loans.
|
|
SECTION
9.02.
|
Additional
Termination Requirements.
|
|
ARTICLE
X
|
|
|
REMIC
PROVISIONS
|
|
|
SECTION
10.01.
|
REMIC
Administration.
|
|
SECTION
10.02.
|
Prohibited
Transactions and Activities.
|
|
SECTION
10.03.
|
Servicer,
Master Servicer and Trustee Indemnification.
|
|
ARTICLE
XI
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
SECTION
11.01.
|
Amendment.
|
|
SECTION
11.02.
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
11.03.
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
11.04.
|
Governing
Law.
|
|
SECTION
11.05.
|
Notices.
|
|
SECTION
11.06.
|
Severability
of Provisions.
|
|
SECTION
11.07.
|
Notice
to Rating Agencies and the NIMS Insurer.
|
|
SECTION
11.08.
|
Article
and Section References.
|
|
SECTION
11.09.
|
Grant
of Security Interest.
|
|
SECTION
11.10.
|
Third
Party Rights.
|
|
SECTION
11.11.
|
Intention
of the Parties and Interpretation.
|
Exhibits
|
Exhibit
A-1
|
Form
of Class A-1 Certificate
|
|
Exhibit
A-2
|
Form
of Class A-2 Certificate
|
|
Exhibit
A-3
|
Form
of Class A-3 Certificate
|
|
Exhibit
A-4
|
Form
of Class A-4 Certificate
|
|
Exhibit
A-5
|
Form
of Class M-1 Certificate
|
|
Exhibit
A-6
|
Form
of Class M-2 Certificate
|
|
Exhibit
A-7
|
Form
of Class M-3 Certificate
|
|
Exhibit
A-8
|
Form
of Class M-4 Certificate
|
|
Exhibit
A-9
|
Form
of Class M-5 Certificate
|
|
Exhibit
A-10
|
Form
of Class M-6 Certificate
|
|
Exhibit
A-11
|
Form
of Class M-7 Certificate
|
|
Exhibit
A-12
|
Form
of Class M-8 Certificate
|
|
Exhibit
A-13
|
Form
of Class M-9 Certificate
|
|
Exhibit
A-14
|
Form
of Class M-10 Certificate
|
|
Exhibit
A-15
|
Form
of Class M-11 Certificate
|
|
Exhibit
A-16
|
Form
of Class M-12 Certificate
|
|
Exhibit
A-17
|
Form
of Class CE Certificate
|
|
Exhibit
A-18
|
Form
of Class P Certificate
|
|
Exhibit
A-19
|
Form
of Class R Certificate
|
|
Exhibit
A-20
|
Form
of Class R-X Certificate
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C-1
|
Form
of Initial Certification
|
|
Exhibit
C-2
|
Form
of Final Certification
|
|
Exhibit
D
|
Form
of Assignment Agreement
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Transferor Representation Letter and Form of Transferee
Representation
|
|
Letter
in Connection with Transfer of the Private Certificates Pursuant
to Rule
144A Under the 1933 Act
|
|
|
Exhibit
F-2
|
Form
of Transfer Affidavit and Agreement and Form of Transferor Affidavit
in
Connection with Transfer of Residual Certificates
|
|
Exhibit
G
|
Form
of Certification with respect to ERISA and the Code
|
|
Exhibit
H
|
Form
of Report Pursuant to Section 4.06
|
|
Exhibit
I
|
Form
of Lost Note Affidavit
|
|
Exhibit
J-1
|
Form
of Certification to Be Provided by the Master Servicer with Form
10-K
|
|
Exhibit
J-2
|
Form
of Certification to Be Provided by the Servicer to the Master
Servicer
|
|
Exhibit
K
|
Annual
Statement of Compliance pursuant to Section 3.20
|
|
Exhibit
L
|
Form
of Cap Contract
|
|
Exhibit
M
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
N
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
O
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
P
|
Additional
Disclosure Notification
|
|
Exhibit
Q-1
|
Form
of Delinquency Report
|
|
Exhibit
Q-2
|
Form
of Monthly Remittance Advice
|
|
Exhibit
Q-3
|
Form
of Realized Loss Report
|
|
Schedule
1
|
Mortgage
Loan Schedule
|
|
Schedule
2
|
Prepayment
Charge Schedule
|
This
Pooling and Servicing Agreement, is dated and effective as of February 1, 2006,
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. as Depositor, OCWEN
LOAN
SERVICING, LLC as Servicer, ▇▇▇▇▇ FARGO BANK, N.A. as Master Servicer and Trust
Administrator and U.S. BANK NATIONAL ASSOCIATION as Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest in each REMIC (as defined herein) created hereunder. The
Trust Fund will consist of a segregated pool of assets comprised of the Mortgage
Loans and certain other related assets subject to this Agreement.
REMIC
I
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets (other than
the Net WAC Rate Carryover Reserve Account, the Swap Account, the Cap Contract,
the Cap Account, the Supplemental Interest Trust, the Interest Rate Swap
Agreement and any Servicer Prepayment Charge Payment Amounts) subject to this
Agreement as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as “REMIC I.” The Class R-I Interest will be the
sole class of “residual interests” in REMIC I for purposes of the REMIC
Provisions (as defined herein). The following table irrevocably sets forth
the
designation, the REMIC I Remittance Rate, the initial Uncertificated Balance
and, for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii),
the “latest possible maturity date” for each of the REMIC I Regular Interests
(as defined herein). None of the REMIC I Regular Interests will be certificated.
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||
|
I
|
Variable(2)
|
$
|
17,593,710.41
|
December
25, 2035
|
||||
|
I-1-A
|
Variable(2)
|
$
|
2,225,497.50
|
December
25, 2035
|
||||
|
I-1-B
|
Variable(2)
|
$
|
2,225,497.50
|
December
25, 2035
|
||||
|
I-2-A
|
Variable(2)
|
$
|
2,682,675.00
|
December
25, 2035
|
||||
|
I-2-B
|
Variable(2)
|
$
|
2,682,675.00
|
December
25, 2035
|
||||
|
I-3-A
|
Variable(2)
|
$
|
3,132,202.50
|
December
25, 2035
|
||||
|
I-3-B
|
Variable(2)
|
$
|
3,132,202.50
|
December
25, 2035
|
||||
|
I-4-A
|
Variable(2)
|
$
|
3,574,218.75
|
December
25, 2035
|
||||
|
I-4-B
|
Variable(2)
|
$
|
3,574,218.75
|
December
25, 2035
|
||||
|
I-5-A
|
Variable(2)
|
$
|
4,005,730.00
|
December
25, 2035
|
||||
|
I-5-B
|
Variable(2)
|
$
|
4,005,730.00
|
December
25, 2035
|
||||
|
I-6-A
|
Variable(2)
|
$
|
4,423,721.25
|
December
25, 2035
|
||||
|
I-6-B
|
Variable(2)
|
$
|
4,423,721.25
|
December
25, 2035
|
||||
|
I-7-A
|
Variable(2)
|
$
|
4,825,181.25
|
December
25, 2035
|
||||
|
I-7-B
|
Variable(2)
|
$
|
4,825,181.25
|
December
25, 2035
|
||||
|
I-8-A
|
Variable(2)
|
$
|
5,205,500.00
|
December
25, 2035
|
||||
|
I-8-B
|
Variable(2)
|
$
|
5,205,500.00
|
December
25, 2035
|
||||
|
I-9-A
|
Variable(2)
|
$
|
5,216,952.50
|
December
25, 2035
|
||||
|
I-9-B
|
Variable(2)
|
$
|
5,216,952.50
|
December
25, 2035
|
||||
|
I-10-A
|
Variable(2)
|
$
|
6,907,541.25
|
December
25, 2035
|
||||
|
I-10-B
|
Variable(2)
|
$
|
6,907,541.25
|
December
25, 2035
|
||||
|
I-11-A
|
Variable(2)
|
$
|
7,557,740.00
|
December
25, 2035
|
||||
|
I-11-B
|
Variable(2)
|
$
|
7,557,740.00
|
December
25, 2035
|
||||
|
I-12-A
|
Variable(2)
|
$
|
7,199,367.50
|
December
25, 2035
|
||||
|
I-12-B
|
Variable(2)
|
$
|
7,199,367.50
|
December
25, 2035
|
||||
|
I-13-A
|
Variable(2)
|
$
|
6,858,116.25
|
December
25, 2035
|
||||
|
I-13-B
|
Variable(2)
|
$
|
6,858,116.25
|
December
25, 2035
|
||||
|
I-14-A
|
Variable(2)
|
$
|
6,533,162.50
|
December
25, 2035
|
||||
|
I-14-B
|
Variable(2)
|
$
|
6,533,162.50
|
December
25, 2035
|
||||
|
I-15-A
|
Variable(2)
|
$
|
6,223,723.75
|
December
25, 2035
|
||||
|
I-15-B
|
Variable(2)
|
$
|
6,223,723.75
|
December
25, 2035
|
||||
|
I-16-A
|
Variable(2)
|
$
|
5,929,055.00
|
December
25, 2035
|
||||
|
I-16-B
|
Variable(2)
|
$
|
5,929,055.00
|
December
25, 2035
|
||||
|
I-17-A
|
Variable(2)
|
$
|
5,648,446.25
|
December
25, 2035
|
||||
|
I-17-B
|
Variable(2)
|
$
|
5,648,446.25
|
December
25, 2035
|
||||
|
I-18-A
|
Variable(2)
|
$
|
5,386,557.50
|
December
25, 2035
|
||||
|
I-18-B
|
Variable(2)
|
$
|
5,386,557.50
|
December
25, 2035
|
||||
|
I-19-A
|
Variable(2)
|
$
|
8,449,795.00
|
December
25, 2035
|
||||
|
I-19-B
|
Variable(2)
|
$
|
8,449,795.00
|
December
25, 2035
|
||||
|
I-20-A
|
Variable(2)
|
$
|
9,713,545.00
|
December
25, 2035
|
||||
|
I-20-B
|
Variable(2)
|
$
|
9,713,545.00
|
December
25, 2035
|
||||
|
I-21-A
|
Variable(2)
|
$
|
8,696,808.75
|
December
25, 2035
|
||||
|
I-21-B
|
Variable(2)
|
$
|
8,696,808.75
|
December
25, 2035
|
||||
|
I-22-A
|
Variable(2)
|
$
|
7,786,137.50
|
December
25, 2035
|
||||
|
I-22-B
|
Variable(2)
|
$
|
7,786,137.50
|
December
25, 2035
|
||||
|
I-23-A
|
Variable(2)
|
$
|
6,976,557.50
|
December
25, 2035
|
||||
|
I-23-B
|
Variable(2)
|
$
|
6,976,557.50
|
December
25, 2035
|
||||
|
I-24-A
|
Variable(2)
|
$
|
4,753,267.50
|
December
25, 2035
|
||||
|
I-24-B
|
Variable(2)
|
$
|
4,753,267.50
|
December
25, 2035
|
||||
|
I-25-A
|
Variable(2)
|
$
|
3,445,238.75
|
December
25, 2035
|
||||
|
I-25-B
|
Variable(2)
|
$
|
3,445,238.75
|
December
25, 2035
|
||||
|
I-26-A
|
Variable(2)
|
$
|
3,248,605.00
|
December
25, 2035
|
||||
|
I-26-B
|
Variable(2)
|
$
|
3,248,605.00
|
December
25, 2035
|
||||
|
I-27-A
|
Variable(2)
|
$
|
32,480,933.75
|
December
25, 2035
|
||||
|
I-27-B
|
Variable(2)
|
$
|
32,480,933.75
|
December
25, 2035
|
||||
|
I-28-A
|
Variable(2)
|
$
|
1,110,586.25
|
December
25, 2035
|
||||
|
I-28-B
|
Variable(2)
|
$
|
1,110,586.25
|
December
25, 2035
|
||||
|
I-29-A
|
Variable(2)
|
$
|
1,055,672.50
|
December
25, 2035
|
||||
|
I-29-B
|
Variable(2)
|
$
|
1,055,672.50
|
December
25, 2035
|
||||
|
I-30-A
|
Variable(2)
|
$
|
1,003,646.25
|
December
25, 2035
|
||||
|
I-30-B
|
Variable(2)
|
$
|
1,003,646.25
|
December
25, 2035
|
||||
|
I-31-A
|
Variable(2)
|
$
|
954,345.00
|
December
25, 2035
|
||||
|
I-31-B
|
Variable(2)
|
$
|
954,345.00
|
December
25, 2035
|
||||
|
I-32-A
|
Variable(2)
|
$
|
907,611.25
|
December
25, 2035
|
||||
|
I-32-B
|
Variable(2)
|
$
|
907,611.25
|
December
25, 2035
|
||||
|
I-33-A
|
Variable(2)
|
$
|
2,064,828.75
|
December
25, 2035
|
||||
|
I-33-B
|
Variable(2)
|
$
|
2,064,828.75
|
December
25, 2035
|
||||
|
I-34-A
|
Variable(2)
|
$
|
748,295.00
|
December
25, 2035
|
||||
|
I-34-B
|
Variable(2)
|
$
|
748,295.00
|
December
25, 2035
|
||||
|
I-35-A
|
Variable(2)
|
$
|
712,917.50
|
December
25, 2035
|
||||
|
I-35-B
|
Variable(2)
|
$
|
712,917.50
|
December
25, 2035
|
||||
|
I-36-A
|
Variable(2)
|
$
|
679,328.75
|
December
25, 2035
|
||||
|
I-36-B
|
Variable(2)
|
$
|
679,328.75
|
December
25, 2035
|
||||
|
I-37-A
|
Variable(2)
|
$
|
647,432.50
|
December
25, 2035
|
||||
|
I-37-B
|
Variable(2)
|
$
|
647,432.50
|
December
25, 2035
|
||||
|
I-38-A
|
Variable(2)
|
$
|
617,136.25
|
December
25, 2035
|
||||
|
I-38-B
|
Variable(2)
|
$
|
617,136.25
|
December
25, 2035
|
||||
|
I-39-A
|
Variable(2)
|
$
|
588,358.75
|
December
25, 2035
|
||||
|
I-39-B
|
Variable(2)
|
$
|
588,358.75
|
December
25, 2035
|
||||
|
I-40-A
|
Variable(2)
|
$
|
561,016.25
|
December
25, 2035
|
||||
|
I-40-B
|
Variable(2)
|
$
|
561,016.25
|
December
25, 2035
|
||||
|
I-41-A
|
Variable(2)
|
$
|
535,033.75
|
December
25, 2035
|
||||
|
I-41-B
|
Variable(2)
|
$
|
535,033.75
|
December
25, 2035
|
||||
|
I-42-A
|
Variable(2)
|
$
|
510,338.75
|
December
25, 2035
|
||||
|
I-42-B
|
Variable(2)
|
$
|
510,338.75
|
December
25, 2035
|
||||
|
I-43-A
|
Variable(2)
|
$
|
11,326,175.00
|
December
25, 2035
|
||||
|
I-43-B
|
Variable(2)
|
$
|
11,326,175.00
|
December
25, ▇▇▇▇
|
||||
|
▇-▇▇▇
|
Variable(2)
|
$
|
100.00
|
December
25, 2035
|
||||
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loan with the latest maturity date has been designated as the “latest
possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
REMIC
II
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as “REMIC II.”
The Class R-II Interest will evidence the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions under federal income tax law.
The
Class R-II Interest will be the sole class of “residual interests” in REMIC II
for purposes of the REMIC Provisions. The following table irrevocably sets
forth
the designation, the REMIC II Remittance Rate, the initial Uncertificated
Balance and, for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity date” for each of the REMIC
II Regular Interests (as defined herein). None of the REMIC II Regular Interests
will be certificated.
|
Designation
|
REMIC
II
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
|
II-LTAA
|
Variable(2)
|
$
|
415,335,476.20
|
December
25, 2035
|
|
II-LTA1
|
Variable(2)
|
$
|
1,906,350.00
|
December
25, 2035
|
|
II-LTA2
|
Variable(2)
|
$
|
488,780.00
|
December
25, 2035
|
|
II-LTA3
|
Variable(2)
|
$
|
624,090.00
|
December
25, 2035
|
|
II-LTA4
|
Variable(2)
|
$
|
208,100.00
|
December
25, 2035
|
|
II-LTM1
|
Variable(2)
|
$
|
154,690.00
|
December
25, 2035
|
|
II-LTM2
|
Variable(2)
|
$
|
146,210.00
|
December
25, 2035
|
|
II-LTM3
|
Variable(2)
|
$
|
91,110.00
|
December
25, 2035
|
|
II-LTM4
|
Variable(2)
|
$
|
76,280.00
|
December
25, 2035
|
|
II-LTM5
|
Variable(2)
|
$
|
76,280.00
|
December
25, 2035
|
|
II-LTM6
|
Variable(2)
|
$
|
65,690.00
|
December
25, 2035
|
|
II-LTM7
|
Variable(2)
|
$
|
61,450.00
|
December
25, 2035
|
|
II-LTM8
|
Variable(2)
|
$
|
55,090.00
|
December
25, 2035
|
|
II-LTM9
|
Variable(2)
|
$
|
42,380.00
|
December
25, 2035
|
|
II-LTM10
|
Variable(2)
|
$
|
44,500.00
|
December
25, 2035
|
|
II-LTM11
|
Variable(2)
|
$
|
38,140.00
|
December
25, 2035
|
|
II-LTM12
|
Variable(2)
|
$
|
38,140.00
|
December
25, 2035
|
|
II-LTZZ
|
Variable(2)
|
$
|
4,358,954.21
|
December
25, 2035
|
|
II-LTP
|
Variable(2)
|
$
|
100.00
|
December
25, 2035
|
|
II-LTIO
|
Variable(2)
|
N/A
|
December
25, 2035
|
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loan with the latest maturity date has been designated as the “latest
possible maturity date” for each REMIC II Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC II Remittance Rate”
herein.
|
|
(3)
|
REMIC
II Regular Interest II-LTIO will not have an Uncertificated Balance,
but
will accrue interest on its Uncertificated Notional Amount.
|
REMIC
III
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC II Regular Interests as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC III.”
The Class R-III Interest will evidence the sole class of “residual interests” in
REMIC III for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the initial aggregate Certificate Principal Balance and, for purposes of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for the indicated Classes of Certificates.
Each
Certificate, other than the Class P Certificate, the Class CE Certificate and
the Class R Certificates, represents ownership of a Regular Interest in REMIC
III and also represents (i) the right to receive payments with respect to the
Net WAC Rate Carryover Amount (as defined herein) and (ii) the obligation to
pay
Class IO Distribution Amounts (as defined herein). The entitlement to principal
of the Regular Interest which corresponds to each Certificate shall be equal
in
amount and timing to the entitlement to principal of such
Certificate.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
|
Class
A-1
|
Variable(2)
|
$
|
190,635,000.00
|
December
25, 2035
|
|
Class
A-2
|
Variable(2)
|
$
|
48,878,000.00
|
December
25, 2035
|
|
Class
A-3
|
Variable(2)
|
$
|
62,409,000.00
|
December
25, 2035
|
|
Class
A-4
|
Variable(2)
|
$
|
20,810,000.00
|
December
25, 2035
|
|
Class
M-1
|
Variable(2)
|
$
|
15,469,000.00
|
December
25, 2035
|
|
Class
M-2
|
Variable(2)
|
$
|
14,621,000.00
|
December
25, 2035
|
|
Class
M-3
|
Variable(2)
|
$
|
9,111,000.00
|
December
25, 2035
|
|
Class
M-4
|
Variable(2)
|
$
|
7,628,000.00
|
December
25, 2035
|
|
Class
M-5
|
Variable(2)
|
$
|
7,628,000.00
|
December
25, 2035
|
|
Class
M-6
|
Variable(2)
|
$
|
6,569,000.00
|
December
25, 2035
|
|
Class
M-7
|
Variable(2)
|
$
|
6,145,000.00
|
December
25, 2035
|
|
Class
M-8
|
Variable(2)
|
$
|
5,509,000.00
|
December
25, 2035
|
|
Class
M-9
|
Variable(2)
|
$
|
4,238,000.00
|
December
25, 2035
|
|
Class
M-10
|
Variable(2)
|
$
|
4,450,000.00
|
December
25, 2035
|
|
Class
M-11
|
Variable(2)
|
$
|
3,814,000.00
|
December
25, 2035
|
|
Class
M-12
|
Variable(2)
|
$
|
3,814,000.00
|
December
25, 2035
|
|
Class
CE Interest
|
Variable(3)
|
$
|
12,083,710.41
|
December
25, 2035
|
|
Class
P Interest
|
N/A(4)
|
$
|
100.00
|
December
25, 2035
|
|
Class
Swap-IO Interest
|
N/A(5)
|
N/A
|
December
25, 2035
|
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each REMIC III Regular Interest.
(2) Calculated
in accordance with the definition of “Pass-Through Rate” herein.
(3) The
Class
CE Interest will accrue interest at its variable Pass-Through Rate on the
Notional Amount of the Class CE Interest outstanding from time to time, which
shall equal the Uncertificated Balance of the REMIC II Regular Interests (other
than REMIC II Regular Interest II-LTP). The Class CE Interest will not accrue
interest on its Uncertificated Balance.
(4) The
Class
P Interest will not accrue interest.
(5) The
Class
SWAP-IO Interest will not have a Pass-Through Rate or a Certificate Principal
Balance, but will be entitled to 100% of the amounts distributed on REMIC II
Regular Interest II-LTIO.
REMIC
IV
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class CE Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC IV.”
The Class R-IV Interest represents the sole class of “residual interests” in
REMIC IV for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Original Class Certificate Principal Balance for the indicated Class of
Certificates that represents a “regular interest” in REMIC IV created
hereunder:
|
Class
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
Class
CE Certificates
|
Variable(2)
|
$12,083,710.41
|
December
25, 2035
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loans
with the latest maturity date has been designated as the “latest possible
maturity date” for the Class CE Certificates.
(2) The
Class
CE Certificates will receive 100% of amounts received in respect of the Class
CE
Interest.
REMIC
V
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class P Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC V.”
The Class R-V Interest represents the sole class of “residual interests” in
REMIC V for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Original Class Certificate Principal Balance for the indicated Class of
Certificates that represents a “regular interest” in REMIC V created
hereunder:
|
Class
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
Class
P Certificates
|
Variable(2)
|
$100.00
|
December
25, 2035
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loans
with the latest maturity date has been designated as the “latest possible
maturity date” for the Class P Certificates.
(2) The
Class
P Certificates will receive 100% of amounts received in respect of the Class
P
Interest.
REMIC
VI
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class SWAP-IO Interest as a REMIC for federal income
tax purposes, and such segregated pool of assets shall be designated as “REMIC
VI.” The Class R-VI Interest represents the sole class of “residual interests”
in REMIC VI for purposes of the REMIC Provisions. The following table
irrevocably sets forth the designation, the Pass-Through Rate, the initial
aggregate Certificate Principal Balance and, for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
the indicated REMIC VI Regular Interest SWAP-IO, which will be
uncertificated.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
SWAP-IO
|
Variable(2)
|
N/A
|
December
25, 2035
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loan with the latest maturity date has been designated as the “latest
possible maturity date” for REMIC VI Regular Interest
SWAP-IO.
|
|
(2)
|
REMIC
VI Regular Interest SWAP-IO shall receive 100% of amounts received
in
respect of the Class SWAP-IO
Interest.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Stated Principal Balance
equal
to $423,811,810.41.
In
consideration of the mutual agreements herein contained, the Depositor, the
Servicer, the Master Servicer, the Trust Administrator and the Trustee agree
as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement, including, without limitation, in the Preliminary
Statement hereto, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article. Unless otherwise
specified, all calculations described herein shall be made on the basis of
a
360-day year consisting of twelve 30-day months.
“Accepted
Master Servicing Practices”: With respect to any Mortgage Loan, as applicable,
either (x) those customary mortgage loan master servicing practices of prudent
mortgage servicing institutions that master service mortgage loans of the same
type and quality as such Mortgage Loan in the jurisdiction where the related
Mortgaged Property is located, to the extent applicable to the Master Servicer
(except in its capacity as successor to the Servicer), or (y) as provided in
Section 3A.01 hereof, but in no event below the standard set forth in
clause (x).
“Accrual
Period”: With respect to the Class A Certificates and the Mezzanine Certificates
and each Distribution Date, the period commencing on the preceding Distribution
Date (or in the case of the first such Accrual Period, commencing on the Closing
Date) and ending on the day preceding the current Distribution Date. With
respect to the Class CE Certificates and the REMIC Regular Interests and each
Distribution Date, the calendar month prior to the month of such Distribution
Date.
“Additional
Form 10-D Disclosure”: The meaning set forth in Section 4.06(a)(i).
“Additional
Form 10-K Disclosure”: The meaning set forth in Section
4.06(a)(iv).
“Adjustable-Rate
Mortgage Loan”: Each of the Mortgage Loans identified in the Mortgage Loan
Schedule as having a Mortgage Rate that is subject to adjustment.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the applicable Maximum Mortgage Rate for such Mortgage Loan (or the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the first
day
of the month preceding the month in which the related Distribution Date occurs
minus
the
sum of (i) the Administration Fee Rate; (ii) the Servicing Fee Rate and (iii)
the Credit Risk Manager Fee Rate.
“Adjusted
Net Mortgage Rate”: With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest equal
to the applicable Mortgage Rate for such Mortgage Loan as of the first day
of
the month preceding the month in which the related Distribution Date occurs
minus
the
sum of (i) the Administration Fee Rate; (ii) the Servicing Fee Rate and (iii)
the Credit Risk Manager Fee Rate.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, the first day of the
month in which the Mortgage Rate of such Mortgage Loan changes pursuant to
the
related Mortgage Note. The first Adjustment Date following the Cut-off Date
as
to each Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
“Administration
Fee”: The amount payable to the Trust Administrator on each Distribution Date
pursuant to Section 8.05 as compensation for all services rendered by the Trust
Administrator in the execution and administration of the trust created hereby
and in the exercise and performance of any of the powers and duties of the
Trust
Administrator hereunder, which amount, with respect to the Mortgage Loans and
REO Properties and for any calendar month, shall be equal to one-twelfth of
the
Administration Fee Rate (without regard to the words “per annum” in the
definition thereof) multiplied by the Stated Principal Balance of the Mortgage
Loans as of the first day of the related Due Period. The fee payable to the
Trustee for all services rendered by it in the exercise and performance of
any
of its respective powers and duties hereunder will be paid by the Trust
Administrator on an annual basis from its own funds in accordance with a
separate agreement between the Trust Administrator and the Trustee.
“Administration
Fee Rate”: 0.0095% per annum.
“Advance”:
With respect to any Distribution Date, as to any Mortgage Loan or REO Property,
any advance made by the Servicer in respect of Monthly Payments due during
the
related Due Period pursuant to Section 4.03 or by the Master Servicer (in its
capacity as successor Servicer) or any other successor Servicer pursuant to
Section 4.03.
“Advance
Facility”: As defined in Section 3.29 hereof.
“Advancing
Person”: As defined in Section 3.29 hereof.
“Affiliate”:
With respect to any specified Person, any other Person controlling or controlled
by or under common control with such specified Person. For the purposes of
this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise, and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Aggregate
Loss Severity Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred on any Mortgage Loans from the Cut-off Date to the
last
day of the preceding calendar month and the denominator of which is the
aggregate Stated Principal Balance of such Mortgage Loans immediately prior
to
the liquidation of such Mortgage Loans.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and any Class of
Mezzanine Certificates, (i) the sum of (a) any Realized Losses allocated to
such
Class of Certificates on such Distribution Date and (b) the amount of any
Allocated Realized Loss Amount for such Class of Certificates remaining
undistributed from the previous Distribution Date reduced by (ii) the amount
of
any Subsequent Recoveries added to the Certificate Principal Balance of such
Class of Certificates.
“Assessment
of Compliance”: As defined in Section 3.21.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form (excepting therefrom, if applicable, the mortgage recordation
information which has not been required pursuant to Section 2.01 hereof or
returned by the applicable recorder’s office), which is sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located
to
reflect of record the sale of the Mortgage, which assignment, notice of transfer
or equivalent instrument may be in the form of one or more blanket assignments
covering Mortgages secured by Mortgaged Properties located in the same county,
if permitted by law.
“Assignment
Agreement”: The Assignment, Assumption and Recognition Agreement, dated February
27, 2006, among the Depositor, the Seller and the Originator, a form of which
is
attached hereto as Exhibit D pursuant to which the Seller assigns its rights
under the Originator Master Agreement to the Depositor.
“Attestation
Report”: As defined in Section 3.21.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess of
(I) the sum of (a) the aggregate of the related Monthly Payments received on
the
Mortgage Loans by the Servicer on or prior to the related Determination Date,
(b) Net Liquidation Proceeds, Insurance Proceeds, Principal Prepayments,
Subsequent Recoveries, proceeds from repurchases of and substitutions for such
Mortgage Loans and other unscheduled recoveries of principal and interest in
respect of the Mortgage Loans received by the Servicer during the related
Prepayment Period, (c) the aggregate of any amounts received by the Servicer
in
respect of a related REO Property and withdrawn from any REO Account and
remitted to the Master Servicer for such Distribution Date, (d) the aggregate
of
any amounts on deposit in the Distribution Account representing Compensating
Interest paid by the Servicer or the Master Servicer in respect of related
Prepayment Interest Shortfalls for such Distribution Date, (e) the aggregate
of
any Advances made by the Servicer for such Distribution Date in respect of
the
Mortgage Loans and (f) the aggregate of any related Advances made by the Master
Servicer (or other successor Servicer) in respect of the Mortgage Loans for
such
Distribution Date pursuant to Section 4.03 over (II) the sum of (a) amounts
reimbursable or payable to the Servicer pursuant to Section 3.11(a) or to the
Master Servicer pursuant to Section 3A.21, (b) Extraordinary Trust Fund
Expenses reimbursable to the Trustee, the Servicer, the Master Servicer or
the
Trust Administrator pursuant to Section 3A.12, (c) amounts in respect of
the items set forth in clauses (I)(a) through (I)(f) above deposited in the
Collection Account or the Distribution Account, as the case may be, in error,
(d) the amount of any Prepayment Charges collected by the Servicer in connection
with the full or partial prepayment of any of the Mortgage Loans, (e) the
Administration Fee and any indemnification and reimbursement amounts owed to
the
Trust Administrator, the Trustee or the Custodian payable from the Distribution
Account pursuant to Section 8.05, (f) the Credit Risk Manager Fee, (g)
without duplication, any amounts in respect of the items set forth in clauses
(I)(a) and (I)(b) permitted hereunder to be retained by the Master Servicer
or
to be withdrawn by the Master Servicer from the Distribution Account pursuant
to
Section 3A.12, (h) Servicing Fees retained by the Servicer pursuant to
Section 3.11 and (i) any Net Swap Payment or Swap Termination Payment owed
to
the Swap Provider (other than any Swap Termination Payment owed to the Swap
Provider resulting from a Swap Provider Trigger Event). Notwithstanding any
of
the foregoing, with respect to any items that are part of the Available Funds
as
defined above and that are required to be remitted by the Servicer to the Master
Servicer, the Available Funds shall not be deemed to include any portion of
such
items that are not actually remitted by the Servicer to the Master
Servicer.
“Back-Up
Certification”: The meaning set forth in Section 4.06(a)(iv).
“Balloon
Mortgage Loan”: A Mortgage Loan that provides for the payment of the unamortized
principal balance of such Mortgage Loan in a single payment at the maturity
of
such Mortgage Loan that is substantially greater than the preceding monthly
payment.
“Balloon
Payment”: A payment of the unamortized principal balance of a Mortgage Loan in a
single payment at the maturity of such Mortgage Loan that is substantially
greater than the preceding Monthly Payment.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Basic
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Principal Remittance Amount for such Distribution Date over
(ii) the Overcollateralization Release Amount, if any, for such Distribution
Date.
“Book-Entry
Certificate”: The Class A Certificates and the Mezzanine Certificates for so
long as the Certificates of such Class shall be registered in the name of the
Depository or its nominee.
“Book-Entry
Custodian”: The custodian appointed pursuant to Section 5.01.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings and loan institutions in the the State of California, the State of
Florida, the State of New York, or in any city in which the Corporate Trust
Office of the Trustee or the Corporate Trust Office of the Trust Administrator
is located, are authorized or obligated by law or executive order to be
closed.
“Cap
Account”: The account or accounts created and maintained pursuant to Section
4.10. The Cap Account must be an Eligible Account.
“Cap
Contract”: The cap contract between the Trust Administrator on behalf of the
Trust and the counterparty thereunder relating to the Class A Certificates
and
the Mezzanine Certificates.
“Certificate”:
Any one of the Mortgage Pass-Through Certificates, Series 2006-AM1, Class A-1,
Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-4, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10, Class M-11,
Class M-12, Class CE, Class P, Class R and Class R-X, issued under this
Agreement.
“Certificate
Factor”: With respect to any Class of Regular Certificates as of any
Distribution Date, a fraction, expressed as a decimal carried to at least six
places, the numerator of which is the aggregate Certificate Principal Balance
(or the Notional Amount, in the case of the Class CE Certificates) of such
Class
of Certificates on such Distribution Date (after giving effect to any
distributions of principal and allocations of Realized Losses in reduction
of
the Certificate Principal Balance (or the Notional Amount, in the case of the
Class CE Certificates) of such Class of Certificates to be made on such
Distribution Date), and the denominator of which is the initial aggregate
Certificate Principal Balance (or the Notional Amount, in the case of the Class
CE Certificates) of such Class of Certificates as of the Closing
Date.
“Certificate
Margin”: With respect to each Class A Certificate and Mezzanine Certificate and,
for purposes of the Marker Rate, the specified REMIC II Regular Interest, as
follows:
|
Class
|
REMIC
II Regular Interest
|
Certificate
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
A-1
|
II-LTA1
|
0.080
|
0.160
|
|
▇-▇
|
▇▇-▇▇▇▇
|
▇.▇▇▇
|
▇.▇▇▇
|
|
▇-▇
|
▇▇-▇▇▇▇
|
0.190
|
0.380
|
|
▇-▇
|
▇▇-▇▇▇▇
|
0.290
|
0.580
|
|
M-1
|
II-LTM1
|
0.370
|
0.555
|
|
M-2
|
II-LTM2
|
0.390
|
0.585
|
|
M-3
|
II-LTM3
|
0.410
|
0.615
|
|
M-4
|
II-LTM4
|
0.520
|
0.780
|
|
M-5
|
II-LTM5
|
0.550
|
0.825
|
|
M-6
|
II-LTM6
|
0.650
|
0.975
|
|
M-7
|
II-LTM7
|
1.250
|
1.875
|
|
M-8
|
II-LTM8
|
1.450
|
2.175
|
|
M-9
|
II-LTM9
|
2.450
|
3.675
|
|
M-10
|
II-LTM10
|
2.500
|
3.750
|
|
M-11
|
II-LTM11
|
2.500
|
3.750
|
|
M-12
|
II-LTM12
|
2.500
|
3.750
|
__________
|
(1)
|
For
the Interest Accrual Period for each Distribution Date on or prior
to the
Optional Termination Date.
|
|
(2)
|
For
the Interest Accrual Period for each Distribution Date after the
Optional
Termination Date.
|
“Certification
Parties”: The meaning set forth in Section 4.06(a)(iv).
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that a Disqualified Organization or a Non-United
States Person shall not be a Holder of a Residual Certificate for any purposes
hereof and, solely for the purposes of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Seller,
the Servicer or the Master Servicer or any Affiliate thereof shall be deemed
not
to be outstanding and the Voting Rights to which it is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent has been obtained, except as
otherwise provided in Section 11.01. The Trust Administrator and the
Trustee and the NIMS Insurer may conclusively rely upon a certificate of the
Depositor, the Seller, the Servicer or the Master Servicer in determining
whether a Certificate is held by an Affiliate thereof. All references herein
to
“Holders” or “Certificateholders” shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and
participating members thereof, except as otherwise specified herein; provided,
however, that the Trust Administrator, the Trustee and the NIMS Insurer shall
be
required to recognize as a “Holder” or “Certificateholder” only the Person in
whose name a Certificate is registered in the Certificate Register.
“Certificate
Owner”: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Certificate as reflected on the books of the Depository
or on the books of a Depository Participant or on the books of an indirect
participating brokerage firm for which a Depository Participant acts as
agent.
“Certificate
Principal Balance”: With respect to each Class A Certificate, Mezzanine
Certificate or Class P Certificate as of any date of determination, the
Certificate Principal Balance of such Certificate on the Distribution Date
immediately prior to such date of determination plus any Subsequent Recoveries
added to the Certificate Principal Balance of such Certificate pursuant to
Section 4.01, minus all distributions allocable to principal made thereon
and Realized Losses allocated thereto on such immediately prior Distribution
Date (or, in the case of any date of determination up to and including the
first
Distribution Date, the initial Certificate Principal Balance of such
Certificate, as stated on the face thereof). With respect to each Class CE
Certificate as of any date of determination, an amount equal to the Percentage
Interest evidenced by such Certificate times the excess, if any, of (A) the
then
aggregate Uncertificated Balance of the REMIC II Regular Interests over (B)
the
then aggregate Certificate Principal Balance of the Class A Certificates, the
Mezzanine Certificates and the Class P Certificates then
outstanding.
“Certificate
Register”: The register maintained pursuant to Section 5.02.
“Certifying
Person”: The meaning set forth in Section 4.06(a)(iv).
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“Class
A
Certificates”: Any Class A-1 Certificate, Class A-2 Certificate, Class A-3
Certificate or Class A-4 Certificate.
“Class
A-1 Certificate”: Any one of the Class A-1 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
A-2 Certificate”: Any one of the Class A-2 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
A-3 Certificate”: Any one of the Class A-3 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-3 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
A-4 Certificate”: Any one of the Class A-4 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-4 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
CE
Certificate”: Any one of the Class CE Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-17 and evidencing (i) a Regular Interest in REMIC IV, (ii) the
obligation to pay Net WAC Rate Carryover Amounts and Swap Termination Payments
and (iii) the right to receive the Class IO Distribution Amount.
“Class
CE
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class CE Certificates, evidencing a Regular
Interest in REMIC III for purposes of the REMIC Provisions.
“Class
IO
Distribution Amount”: As defined in Section 4.08 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal
the amount payable to the Trust Administrator on such Distribution Date in
excess of the amount payable on the Class SWAP-IO Interest on such Distribution
Date, all as further provided in Section 4.08 hereof.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-5 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-1 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M-1 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 59.60%
and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,119,059.05.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-6 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-2 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date) and (iii) the Certificate Principal Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 66.50% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,119,059.05.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-7 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-3 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date) and (iv) the Certificate
Principal Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 70.80% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,119,059.05.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-8 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-4 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (v) the Certificate Principal Balance of the Class M-4 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 74.40% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,119,059.05.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-9 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-5 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date) and (vi) the Certificate
Principal Balance of the Class M-5 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 78.00% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,119,059.05.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-10 and evidencing (i) a Regular Interest in REMIC III,
(ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-6 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date) and (vii) the Certificate Principal Balance of the Class M-6 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 81.10% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,119,059.05.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-11 and evidencing (i) a Regular Interest in REMIC III,
(ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-7 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date) and (viii) the Certificate
Principal Balance of the Class M-7 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 84.00% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,119,059.05.
“Class
M-8 Certificate”: Any one of the Class M-8 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-12 and evidencing (i) a Regular Interest in REMIC III,
(ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-8 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date) and (ix) the Certificate Principal Balance of the Class M-8 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 86.60% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,119,059.05.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-13 and evidencing (i) a Regular Interest in REMIC III,
(ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Class IO Distribution Amount.
“Class
M-9 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date) and (x) the Certificate Principal
Balance of the Class M-9 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 88.60% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
the excess of the aggregate Stated Principal Balance of the Mortgage Loans
as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) over $2,119,059.05.
“Class
M-10 Certificate”: Any one of the Class M-10 Certificates executed,
authenticated and delivered by the Trust Administrator, substantially in the
form annexed hereto as Exhibit A-14 and evidencing (i) a Regular Interest in
REMIC III, (ii) the right to receive the Net WAC Rate Carryover Amount and
(iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-10 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date) and (xi) the Certificate Principal Balance of the Class M-10 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 90.70% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the excess of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) over
$2,119,059.05.
“Class
M-11 Certificate”: Any one of the Class M-11 Certificates executed,
authenticated and delivered by the Trust Administrator, substantially in the
form annexed hereto as Exhibit A-15 and evidencing (i) a Regular Interest in
REMIC III, (ii) the right to receive the Net WAC Rate Carryover Amount and
(iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-11 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date), (xi) the Certificate Principal Balance of the Class M-10 Certificates
(after taking into account the distribution of the Class M-10 Principal
Distribution Amount on such Distribution Date) and (xii) the Certificate
Principal Balance of the Class M-11 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 92.50% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,119,059.05.
“Class
M-12 Certificate”: Any one of the Class M-12 Certificates executed,
authenticated and delivered by the Trust Administrator, substantially in the
form annexed hereto as Exhibit A-16 and evidencing (i) a Regular Interest in
REMIC III, (ii) the right to receive the Net WAC Rate Carryover Amount and
(iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-12 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance of
the
Class A Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (v) the Certificate Principal Balance of the Class M-4 Certificates
(after taking into account the distribution of the Class M-4 Principal
Distribution Amount on such Distribution Date), (vi) the Certificate Principal
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (vii) the Certificate Principal Balance of the Class M-6 Certificates
(after taking into account the distribution of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the
distribution of the Class M-7 Principal Distribution Amount on such Distribution
Date), (ix) the Certificate Principal Balance of the Class M-8 Certificates
(after taking into account the distribution of the Class M-8 Principal
Distribution Amount on such Distribution Date), (x) the Certificate Principal
Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date), (xi) the Certificate Principal Balance of the Class M-10 Certificates
(after taking into account the distribution of the Class M-10 Principal
Distribution Amount on such Distribution Date), (xii) the Certificate Principal
Balance of the Class M-11 Certificates (after taking into account the
distribution of the Class M-11 Principal Distribution Amount on such
Distribution Date) and (xiii) the Certificate Principal Balance of the Class
M-12 Certificates immediately prior to such Distribution Date over (y) the
lesser of (A) the product of (i) 94.30% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) and (B) the excess
of
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) over $2,286,535.98.
“Class
P
Certificate”: Any one of the Class P Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-18 and evidencing a Regular Interest in REMIC V for purposes of
the
REMIC Provisions.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC III for purposes of the REMIC Provisions.
“Class
R
Certificate”: Any one of the Class R Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-19 and evidencing the ownership of the Class R-I Interest, the
Class R-II Interest and the Class R-III Interest.
“Class
R-X Certificate”: The Class R-X Certificate executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed hereto
as Exhibit A-20 and evidencing the ownership of the Class R-IV Interest, the
Class R-V Interest and the Class R-VI Interest.
“Class
R-I Interest”: The uncertificated Residual Interest in REMIC I.
“Class
R-II Interest”: The uncertificated Residual Interest in REMIC II.
“Class
R-III Interest”: The uncertificated Residual Interest in REMIC III.
“Class
R-IV Interest”: The uncertificated Residual Interest in REMIC IV.
“Class
R-V Interest”: The uncertificated Residual Interest in REMIC V.
“Class
R-VI Interest”: The uncertificated Residual Interest in REMIC VI.
“Class
SWAP-IO Interest”: An uncertificated interest in the Trust Fund evidencing a
Regular Interest in REMIC III.
“Closing
Date”: February 27, 2006.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The account or accounts created and maintained, or caused to be
created and maintained, by the Servicer pursuant to Section 3.10(a), which
shall
be entitled “Ocwen Loan Servicing, LLC, as Servicer for U.S. Bank National
Association, as Trustee, in trust for the registered holders of MASTR Asset
Backed Securities Trust 2006-AM1 Mortgage Pass-Through Certificates.” The
Collection Account must be an Eligible Account.
“Combined
Loan-to-Value Ratio”: With respect to any second lien Mortgage Loan and as of
any date of determination, the fraction, expressed as a percentage, the
numerator of which is the sum of (i) the principal balance of the related
Mortgage Loan at such date and (ii) the principal balance of any related first
lien Mortgage Loan and the denominator of which is the Value of the related
Mortgaged Property
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: With respect to the Servicer and any Principal Prepayment in full,
the amount in respect of Prepayment Interest Shortfalls required to be paid
by
the Servicer pursuant to Section 3.24 from its own funds without right of
reimbursement. With respect to the Master Servicer, the amount in respect of
Prepayment Interest Shortfalls required to be paid by the Master Servicer
pursuant to Section 3A.10 from its own funds without right of reimbursement
except as provided in Section 3A.10.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee or the Trust
Administrator, as the case may be, at which at any particular time its corporate
trust business in connection with this Agreement shall be administered, which
office at the date of the execution of this instrument is located at (i) with
respect to the Trustee, U.S. Bank National Association, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇-▇▇▇▇,
▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance/MASTR 2006-AM1, or at
such
other address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Servicer, the Master Servicer, the
Originator and the Trust Administrator, or (ii) with respect to the Trust
Administrator, (A) for Certificate transfer and surrender purposes, ▇▇▇▇▇ Fargo
Bank, N.A., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Services—MASTR 2006-AM1 and (B) for all other
purposes, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Services—MASTR 2006-AM1, or in each case, at
such other address as the Trust Administrator may designate from time to time
by
notice to the Certificateholders, the Depositor, the Servicer, the Master
Servicer, the Originator and the Trustee.
“Corresponding
Certificate”: With respect to each REMIC II Regular Interest set forth below,
the corresponding Regular Certificate set forth in the table below:
|
REMIC
II Regular Interest
|
Regular
Certificate
|
|
II-LTA1
|
Class
A-1
|
|
II-LTA2
|
Class
▇-▇
|
|
▇▇-▇▇▇▇
|
▇▇▇▇▇
▇-▇
|
|
▇▇-▇▇▇▇
|
Class
A-4
|
|
II-LTM1
|
Class
M-1
|
|
II-LTM2
|
Class
M-2
|
|
II-LTM3
|
Class
M-3
|
|
II-LTM4
|
Class
M-4
|
|
II-LTM5
|
Class
M-5
|
|
II-LTM6
|
Class
M-6
|
|
II-LTM7
|
Class
M-7
|
|
II-LTM8
|
Class
M-8
|
|
II-LTM9
|
Class
M-9
|
|
II-LTM10
|
Class
M-10
|
|
II-LTM11
|
Class
M-11
|
|
II-LTM12
|
Class
M-12
|
|
II-LTP
|
Class
P
|
“Credit
Enhancement Percentage”: For any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is (x) the aggregate Certificate Principal
Balance of the Mezzanine Certificates and the Class CE Certificates and the
denominator of which is (y) the aggregate Stated Principal Balance of the
Mortgage Loans, calculated prior to taking into account distributions of
principal on the Mortgage Loans and distribution of the Principal Distribution
Amount to the Holders of the Certificates then entitled to distributions of
principal on such Distribution Date.
“Credit
Risk Management Agreement”: The agreement between the Credit Risk Manager and
the Servicer regarding the loss mitigation and advisory services to be provided
by the Credit Risk Manager.
“Credit
Risk Manager”: Risk Management Group, LLC, a New York limited liability company,
and its successors and assigns.
“Credit
Risk Manager Fee”: The amount payable to the Credit Risk Manager on each
Distribution Date as compensation for all services rendered by it in the
exercise and performance of any of the powers and duties of the Credit Risk
Manager under the Credit Risk Management Agreement and any other agreement
pursuant to which the Credit Risk Manager is to perform any duties with respect
to the Mortgage Loans, which amount shall equal one twelfth of the product
of
(i) the Credit Risk Manager Fee Rate (without regard to the words “per annum”)
and (ii) the aggregate Stated Principal Balance of the Mortgage Loans and any
related REO Properties as of the first day of the related Due
Period.
“Credit
Risk Manager Fee Rate”: 0.01% per annum.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred from the Cut-off Date to the last day of the preceding
calendar month and the denominator of which is the sum of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
“Custodial
Agreement”: The agreement dated as of the Closing Date, between the Trustee and
Deutsche Bank National Trust Company providing for the safekeeping of the
Mortgage Files held by Deutsche Bank National Trust Company on behalf of the
Trust in accordance with this Agreement.
“Custodian”:
The entity acting as custodian of the Mortgage Files on behalf of and for the
benefit of the Trustee, which as of the Closing Date shall be Deutsche Bank
National Trust Company.
“Cut-off
Date”: With respect to each Original Mortgage Loan, February 1, 2006. With
respect to all Qualified Substitute Mortgage Loans, their respective dates
of
substitution. References herein to the “Cut-off Date,” when used with respect to
more than one Mortgage Loan, shall be to the respective Cut-off Dates for such
Mortgage Loans.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid Stated
Principal Balance thereof as of the Cut-off Date of such Mortgage Loan (or
as of
the applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan), after giving effect to scheduled payments due on or before
the
Cut-off Date, whether or not received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”: As defined in Section 5.01(b).
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by a Qualified
Substitute Mortgage Loan.
“Delinquency
Percentage”: As of the last day of the related Due Period, the percentage
equivalent of a fraction, the numerator of which is the aggregate Stated
Principal Balance of all Mortgage Loans that, as of the last day of the previous
calendar month, are 60 or more days delinquent, are in foreclosure, have been
converted to REO Properties or have been discharged by reason of bankruptcy
and
are 60 or more days delinquent, and the denominator of which is the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties as of the
last
day of the previous calendar month.
“Depositor”:
Mortgage Asset Securitization Transactions, Inc., a Delaware corporation, or
its
successor in interest.
“Depository”:
The Depository Trust Company, or any successor Depository hereafter named.
The
nominee of the initial Depository, for purposes of registering those
Certificates that are to be Book-Entry Certificates, is CEDE & Co. The
Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York
and a “clearing agency” registered pursuant to the provisions of
Section 17A of the Exchange Act.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
Person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicer or the Master
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Servicer or the Master
Servicer on behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance, or makes decisions
as to repairs or capital expenditures with respect to such REO
Property.
“Disqualified
Organization”: Any of the following: (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for ▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) any foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers’ cooperatives described in Section 521 of the
Code) which is exempt from the tax imposed by Chapter 1 of the Code (including
the tax imposed by Section 511 of the Code on unrelated business taxable
income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” and
(vi) any other Person so designated by the Trustee or the Trust Administrator
based upon an Opinion of Counsel that the holding of an Ownership Interest
in a
Residual Certificate by such Person may cause any REMIC or any Person having
an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms “United States,” “State” and
“international organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
“Distribution
Account”: The trust account or accounts created and maintained by the Trust
Administrator pursuant to Section 3A.11 which shall be entitled “▇▇▇▇▇
Fargo Bank, N.A. as Trust Administrator, in trust for the registered holders
of
MASTR Asset Backed Securities Trust 2006-AM1, Mortgage Pass-Through
Certificates, Series 2006-AM1—Distribution Account,” and which shall be an
Eligible Account.
“Distribution
Date”: The 25th
day of
any month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in March 2006.
“Due
Date”: With respect to each Distribution Date, the first day of the calendar
month in which such Distribution Date occurs, which is generally the day of
the
month on which the Monthly Payment is due on a Mortgage Loan, exclusive of
any
days of grace.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the related Due Date.
“Eligible
Account”: Any of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated P-1 by ▇▇▇▇▇’▇ or
A-1+ by S&P (or comparable ratings if ▇▇▇▇▇’▇ and S&P are not the Rating
Agencies) at the time any amounts are held on deposit therein, (ii) with respect
to any escrow account, an account or accounts the deposits in which are fully
insured by the FDIC (to the limits established by such corporation), the
uninsured deposits in which account are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the NIMS Insurer, the Trust
Administrator and to each Rating Agency, the Certificateholders will have a
claim with respect to the funds in such account or a perfected first priority
security interest against such collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account
is
maintained, (iii) a trust account or accounts maintained with the trust
department of a federal or state chartered depository institution, national
banking association or trust company acting in its fiduciary capacity or (iv)
an
account otherwise acceptable to the NIMS Insurer and to each Rating Agency
without reduction or withdrawal of their then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the Trust
Administrator, the Trustee and the NIMS Insurer. Eligible Accounts may bear
interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Estate
in Real Property”: A fee simple estate in a parcel of land.
“Excess
Overcollateralized Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, the excess, if any, of (i)
the
Overcollateralized Amount for such Distribution Date, assuming that 100% of
the
Principal Remittance Amount is applied as a principal distribution on such
Distribution Date over (ii) the Overcollateralization Target Amount for such
Distribution Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the sum of (i) Monthly Interest Distributable Amount payable
on
the Class CE Certificates on such Distribution Date as reduced by Realized
Losses allocated thereto with respect to such Distribution Date pursuant to
Section 4.04 and (ii) any amounts received under the Interest Rate Swap
Agreement or the Cap Contract for this purpose and (y) the Overcollateralization
Deficiency Amount for such Distribution Date.
“Extraordinary
Trust Fund Expense”: Any amounts reimbursable to the Master Servicer pursuant to
Section 3A.03 or Section 6.03, to the Servicer, the Trustee or the
Trust Administrator, or any director, officer, employee or agent of the Trustee
or the Trust Administrator from the Trust Fund pursuant to Section 6.03,
Section 8.05 or Section 10.01(c) and any amounts payable from the
Distribution Account in respect of taxes pursuant to
Section 10.01(g)(iii).
“▇▇▇▇▇▇
▇▇▇”: ▇▇▇▇▇▇ ▇▇▇, formally known as the Federal National Mortgage Association,
or any successor thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased or repurchased
by
the Originator, the Seller, the Depositor, the Servicer or the NIMS Insurer
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 9.01), a determination made by the Servicer that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
“Fixed-Rate
Mortgage Loan”: Each of the Mortgage Loans identified in the Mortgage Loan
Schedule as having a Mortgage Rate that is fixed for the entire term of the
Mortgage Loan.
“Fixed
Swap Payment”: With respect to any Distribution Date, a fixed amount equal to
the related amount set forth in the Interest Rate Swap Agreement.
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) one-month LIBOR (as determined pursuant to the Interest
Rate
Swap Agreement for such Distribution Date), (ii) the related Base Calculation
Amount (as defined in the Interest Rate Swap Agreement), (iii) 250 and (iv)
a
fraction, the numerator of which is the actual number of days elapsed from
and
including the previous Distribution Date to but excluding the current
Distribution Date (or, for the first Distribution Date, the actual number of
days elapsed from the Closing Date to but excluding the first Distribution
Date), and the denominator of which is 360.
“Form
8-K
Disclosure Information”: The meaning set forth in Section
4.06(a)(iii).
“Formula
Rate”: For any Distribution Date and the Class A Certificates and the Mezzanine
Certificates, the lesser of (i) One-Month LIBOR plus the related Certificate
Margin and (ii) the Maximum Cap Rate.
“▇▇▇▇▇▇▇
Mac”: ▇▇▇▇▇▇▇ Mac, formally known as the Federal Home Loan Mortgage Corporation,
or any successor thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Adjustable-Rate Mortgage
Loan.
“Highest
Priority”: As of any date of determination, the Class of Mezzanine Certificates
then outstanding with a Certificate Principal Balance greater than zero, with
the highest priority for payments pursuant to Section 4.01, in the
following order: Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7, Class M-8, Class M-9, Class M-10, Class M-11 and Class M-12
Certificates.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class CE
Certificates, the Class P Certificates and/or the Class R Certificates (or
any
portion thereof) which may or may not be guaranteed by the NIMS
Insurer.
“Independent”:
When used with respect to any accountants, a Person who is “independent” within
the meaning of Rule 2-01(B) of the Securities and Exchange Commission’s
Regulation S-X. Independent means, when used with respect to any other Person,
a
Person who (A) is in fact independent of another specified Person and any
affiliate of such other Person, (B) does not have any material direct or
indirect financial interest in such other Person or any affiliate of such other
Person, (C) is not connected with such other Person or any affiliate of such
other Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions and (D) is not a member of
the
immediate family of a Person defined in clause (B) or (C) above.
“Independent
Contractor”: Either (i) any Person (other than the Servicer or the Master
Servicer) that would be an “independent contractor” with respect to REMIC I
within the meaning of Section 856(d)(3) of the Code if REMIC I were a real
estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as REMIC I does
not receive or derive any income from such Person and provided that the
relationship between such Person and REMIC I is at arm’s length, all within the
meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including the Servicer and the Master Servicer) if the Trust
Administrator has received an Opinion of Counsel for the benefit of the Trustee
and the Trust Administrator to the effect that the taking of any action in
respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a)
of the Code), or cause any income realized in respect of such REO Property
to
fail to qualify as Rents from Real Property.
“Index”:
With respect to each Adjustable Rate Mortgage Loan and with respect to each
related Adjustment Date, the index as specified in the related Mortgage
Note.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance
policy, covering a Mortgage Loan to the extent such proceeds are not to be
applied to the restoration of the related Mortgaged Property or released to
the
Mortgagor in accordance with the procedures that the Servicer would follow
in
servicing mortgage loans held for its own account, subject to the terms and
conditions of the related Mortgage Note and Mortgage.
“Interest
Determination Date”: With respect to the Class A Certificates, the Mezzanine
Certificates, REMIC II Regular Interest II-LTA1, REMIC II Regular Interest
II-LTA2, REMIC II Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4,
REMIC II Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC
II
Regular Interest II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular
Interest II-LTM5, REMIC II Regular Interest II-LTM6, REMIC II Regular Interest
II-LTM7, REMIC II Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9,
REMIC II Regular Interest II-LTM10, REMIC II Regular Interest II-LTM11 and
REMIC
II Regular Interest II-LTM12 and any Accrual Period therefor, the second London
Business Day preceding the commencement of such Accrual Period.
“Interest
Rate Swap Agreement”: The 1992 ISDA Master Agreement (Multicurrency-Cross
Border) dated as of February 27, 2006 (together with the schedule thereto,
the
Master Agreement) between the Swap Provider and the Trust Administrator (in
its
capacity as Supplemental Interest Trust Trustee), an ISDA Credit Support Annex
(Bilateral Form-New York Law) as of the same date, which supplements, forms
part
of, and is subject to the Master Agreement, and a confirmation of the same
date,
which supplements, forms part of, and is subject to the Master
Agreement.
“Interest
Remittance Amount”: With respect to any Distribution Date, that portion of the
Available Funds for such Distribution Date attributable to interest received
or
advanced with respect to the Mortgage Loans.
“Late
Collections”: With respect to any Mortgage Loan and any Due Period, all amounts
received by the Servicer subsequent to the Determination Date immediately
following such Due Period, whether as late payments of Monthly Payments or
as
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any
acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent for such Due Period and not previously recovered.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the Servicer has determined, in its reasonable judgment, as of the end
of
the related Prepayment Period, that all Liquidation Proceeds which it expects
to
recover with respect to the liquidation of the Mortgage Loan or disposition
of
the related REO Property have been recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i) such
Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made
as to
such Mortgage Loan; or (iii) such Mortgage Loan is removed from REMIC I by
reason of its being purchased, repurchased or replaced pursuant to or as
contemplated by Section 2.03 or Section 9.01. With respect to any REO
Property, either of the following events: (i) a Final Recovery Determination
is
made as to such REO Property; or (ii) such REO Property is removed from REMIC
I
by reason of its being purchased pursuant to Section 9.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the Servicer in
connection with (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan through a trustee’s sale, foreclosure sale or
otherwise, or (iii) the purchase, repurchase or substitution of a Mortgage
Loan
or an REO Property pursuant to or as contemplated by Section 2.03 or
Section 9.01.
“Loan-to-Value
Ratio”: As of any date of determination, the fraction, expressed as a
percentage, the numerator of which is the principal balance of the related
Mortgage Loan at such date and the denominator of which is the Value of the
related Mortgaged Property.
“London
Business Day”: Any day on which banks in the City of London and New York are
open and conducting transactions in United States dollars.
“Loss
Severity Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the amount of Realized
Losses incurred on a Mortgage Loan and the denominator of which is the principal
balance of such Mortgage Loan immediately prior to the liquidation of such
Mortgage Loan.
“Marker
Rate”: With respect to the Class CE Interest and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the REMIC II
Remittance Rate for each of REMIC II Regular Interests ▇▇-▇▇▇▇, ▇▇-▇▇▇▇,
▇▇-▇▇▇▇,
▇▇-▇▇▇▇, II-LTM1, II-LTM2, II-LTM3, II-LTM4, II-LTM5, II-LTM6, II-LTM7, II-LTM8,
II-LTM9, II-LTM10, II-LTM11, II-LTM12 and II-LTZZ, with the rate on each such
REMIC II Regular Interest (other than REMIC II Regular Interest II-LTZZ) subject
to a cap equal to the lesser of (a) One-Month LIBOR plus the related Certificate
Margin and (b) the Net WAC Rate for the purpose of this calculation and with
the
rate on REMIC II Regular Interest II-LTZZ subject to a cap of zero for the
purpose of this calculation; provided, however, that solely for this purpose,
calculations of the REMIC II Remittance Rate and the related caps with respect
to such REMIC II Regular Interests (other than REMIC II Regular Interest
II-LTZZ) shall be multiplied by a fraction, the numerator of which is the actual
number of days elapsed in the related Accrual Period and the denominator of
which is 30.
“Master
Servicer”: As of the Closing Date, ▇▇▇▇▇ Fargo Bank, N.A. and thereafter, its
respective successors in interest who meet the qualifications of the Master
Servicer under this Agreement or any successor appointed hereunder. The Master
Servicer and the Trust Administrator shall at all times be the same
Person.
“Master
Servicer Event of Termination”: One or more of the events described in
Section 7.01(b).
“Master
Servicing Compensation”: The meaning specified in
Section 3A.09.
“Master
Servicing Transfer Costs”: Shall mean all reasonable out-of-pocket costs and
expenses incurred by the Trustee in connection with the transfer of master
servicing from a predecessor master servicer, including, without limitation,
any
reasonable costs or expenses associated with the complete transfer of all
servicing data and master servicing data and the completion, correction or
manipulation of such servicing data as may be required by the Trustee to correct
any errors or insufficiencies in the servicing data or otherwise to enable
the
Trustee to master service the Mortgage Loans properly and
effectively.
“Maximum
Cap Rate”: For any Distribution Date with respect to the Class A Certificates
and the Mezzanine Certificates, a per annum rate equal to the sum of (i) the
product of (x) the weighted average of the Adjusted Net Maximum Mortgage Rates
of the Mortgage Loans, weighted based on their outstanding Stated Principal
Balances as of the first day of the calendar month preceding the month in which
the Distribution Date occurs and (y) a fraction, the numerator of which is
30
and the denominator of which is the actual number of days elapsed in the related
Accrual Period and (ii) (A) an amount, expressed as a percentage, equal to
a
fraction, the numerator of which is equal to the Net Swap Payment made by the
Swap Provider and the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans, multiplied by 12 and (B) an amount,
expressed as a percentage, equal to a fraction, the numerator of which is equal
to payments received under the Cap Contract and the denominator of which is
equal to the aggregate Stated Principal Balance of the Mortgage Loans,
multiplied by 12 minus (a) an amount, expressed as a percentage, equal to the
product of (I) the Net Swap Payment, if any, paid by the Trust for such
Distribution Date divided by the aggregate Stated Principal Balance of the
Mortgage Loans and (II) 12 and (b) an amount, expressed as a percentage, equal
to the product of (x) the Swap Termination Payment, if any, due from the Trust
(other than any Swap Termination Payment resulting from a Swap Provider Trigger
Event) for such Distribution Date, divided by the aggregate Stated Principal
Balance of the Mortgage Loans and (y) 12.
“Maximum
II-LTZZ Uncertificated Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (i) accrued interest at the REMIC II Remittance
Rate applicable to REMIC II Regular Interest II-LTZZ for such Distribution
Date
on a balance equal to the Uncertificated Balance of REMIC II Regular Interest
II-LTZZ minus the REMIC II Overcollateralization Amount, in each case for such
Distribution Date, over (ii) Uncertificated Interest on REMIC II Regular
Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular Interest
II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1,
REMIC II Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC
II
Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular
Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular Interest
II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10,
REMIC II Regular Interest II-LTM11 and REMIC II Regular Interest II-LTM12 for
such Distribution Date, with the rate on each such REMIC II Regular Interest
subject to a cap equal to the lesser of (a) One-Month LIBOR plus the
related Certificate Margin and (b) the Net WAC Rate; provided, however, each
cap
shall be multiplied by a fraction, the numerator of which is the actual number
of days elapsed in the related Accrual Period and the denominator of which
is
30.
“Maximum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Mezzanine
Certificate”: Any Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificate, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates, Class M-10 Certificates or Class M-11 Certificates.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“MOM
Loan”: With respect to any Mortgage Loan, MERS acting as the mortgagee of such
Mortgage Loan, solely as nominee for the originator of such Mortgage Loan and
its successors and assigns, at the origination thereof.
“Monthly
Interest Distributable Amount”: With respect to the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates and any Distribution Date,
the amount of interest accrued during the related Accrual Period at the related
Pass-Through Rate on the Certificate Principal Balance (or Notional Amount
in
the case of the Class CE Certificates) of such Class immediately prior to such
Distribution Date, reduced (to not less than zero) by any Prepayment Interest
Shortfalls (to the extent not covered by payments made by the Servicer or the
Master Servicer) and Relief Act Interest Shortfalls (allocated to such
Certificate based on its respective entitlements to interest irrespective of
any
Prepayment Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution Date).
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the related
Mortgagor from time to time under the related Mortgage Note, determined: (a)
after giving effect to (i) any Deficient Valuation and/or Debt Service Reduction
with respect to such Mortgage Loan and (ii) any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act;
(b)
without giving effect to any extension granted or agreed to by the Servicer
pursuant to Section 3.07 and (c) on the assumption that all other amounts,
if
any, due under such Mortgage Loan are paid when due.
“Monthly
Statement”: The statement prepared by the Trust Administrator pursuant to
Section 4.02.
“Moody’s”:
▇▇▇▇▇’▇ Investors Service, Inc. or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on, or first or second priority security interest in, a Mortgaged Property
securing a Mortgage Note.
“Mortgage
File”: The mortgage documents listed in Section 2.01 pertaining to a
particular Mortgage Loan and any additional documents required to be added
to
the Mortgage File pursuant to this Agreement.
“Mortgage
Loan”: Each mortgage loan transferred and assigned to the Trustee and delivered
to the Trustee pursuant to Section 2.01 or Section 2.03(b) of this
Agreement, as held from time to time as a part of the Trust, the Mortgage Loans
so held being identified in the Mortgage Loan Schedule.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in REMIC I
on such date, attached hereto as Schedule 1. The Mortgage Loan Schedule shall
set forth the following information with respect to each Mortgage
Loan:
(1) the
Mortgage Loan identifying number;
(2) [reserved];
(3) the
state
and zip code of the Mortgaged Property;
(4) a
code
indicating whether the Mortgaged Property was represented by the borrower,
at
the time of origination, as being owner-occupied;
(5) the
type
of Residential Dwelling constituting the Mortgaged Property;
(6) the
original months to maturity;
(7) the
stated remaining months to maturity from the Cut-off Date based on the original
amortization schedule;
(8) the
Loan-to-Value Ratio or Combined Loan-to-Value Ratio, as applicable, at
origination;
(9) the
Mortgage Rate in effect immediately following the Cut-off Date;
(10) the
date
on which the first Monthly Payment was due on the Mortgage Loan;
(11) the
stated maturity date;
(12) the
amount of the Monthly Payment at origination;
(13) the
amount of the Monthly Payment due on the first Due Date after the Cut-off
Date;
(14) the
last
Due Date on which a Monthly Payment was actually applied to the unpaid Stated
Principal Balance;
(15) the
original principal amount of the Mortgage Loan;
(16) the
Stated Principal Balance of the Mortgage Loan as of the close of business on
the
Cut-off Date;
(17) a
code
indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out refinancing);
(18) the
Mortgage Rate at origination;
(19) a
code
indicating the documentation program (i.e.,
full
documentation, limited documentation, stated income documentation);
(20) the
risk
grade assigned by the Originator;
(21) the
Value
of the Mortgaged Property;
(22) the
sale
price of the Mortgaged Property, if applicable;
(23) the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
(24) the
type
and term of the related Prepayment Charge;
(25) the
rounding code;
(26) the
program code;
(27) a
code
indicating the lien priority for Mortgage Loans;
(28) with
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Rate, the
Maximum Mortgage Rate, the Gross Margin, the next Adjustment Date and the
Periodic Rate Cap;
(29) the
credit score (“FICO”) of such Mortgage Loan; and
(30) the
total
amount of points and fees charged such Mortgage Loan.
The
Mortgage Loan Schedule shall set forth the following information with respect
to
the Mortgage Loans as of the Cut-off Date: (1) the number of Mortgage Loans
(separately identifying the number of Fixed-Rate Mortgage Loans and the number
of Adjustable-Rate Mortgage Loans); (2) the current Stated Principal Balance
of
the Mortgage Loans; (3) the weighted average Mortgage Rate of the Mortgage
Loans
and (4) the weighted average maturity of the Mortgage Loans. The Mortgage Loan
Schedule shall be amended from time to time by the Depositor in accordance
with
the provisions of this Agreement. With respect to any Qualified Substitute
Mortgage Loan, the Cut-off Date shall refer to the related Cut-off Date for
such
Mortgage Loan, determined in accordance with the definition of Cut-off Date
herein.
“Mortgage
Note”: The original executed note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on the Mortgage Loan Schedule and
existing from time to time thereafter, and any REO Properties acquired in
respect thereof.
“Mortgage
Rate”: With respect to each Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan from time to time in accordance with the
provisions of the related Mortgage Note, which rate with respect to the
Adjustable-Rate Mortgage Loans, (A) as of any date of determination until the
first Adjustment Date following the Cut-off Date shall be the rate set forth
in
the Mortgage Loan Schedule as the Mortgage Rate in effect immediately following
the Cut-off Date and (B) as of any date of determination thereafter shall be
the
rate as adjusted on the most recent Adjustment Date equal to the sum, rounded
to
the nearest or next highest 0.125% as provided in the Mortgage Note, of the
Index, as most recently available as of a date prior to the Adjustment Date
as
set forth in the related Mortgage Note, plus the related Gross Margin; provided
that the Mortgage Rate on such Adjustable-Rate Mortgage Loan on any Adjustment
Date shall never be more than the lesser of (i) the sum of the Mortgage Rate
in
effect immediately prior to the Adjustment Date plus the related Periodic Rate
Cap, if any, and (ii) the related Maximum Mortgage Rate, and shall never be
less
than the greater of (i) the Mortgage Rate in effect immediately prior to the
Adjustment Date less the Periodic Rate Cap, if any, and (ii) the related Minimum
Mortgage Rate. With respect to each Mortgage Loan that becomes an REO Property,
as of any date of determination, the annual rate determined in accordance with
the immediately preceding sentence as of the date such Mortgage Loan became
an
REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of an Estate in Real Property improved by a Residential
Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan or any other
disposition of the related Mortgaged Property (including REO Property) the
related Liquidation Proceeds and Insurance Proceeds net of Advances, Servicing
Advances, Servicing Fees and any other accrued and unpaid servicing fees
received and retained in connection with the liquidation of such Mortgage Loan
or Mortgaged Property.
“Net
Monthly Excess Cashflow”: With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and (b)
the
excess of (x) Available Funds for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Monthly Interest Distributable Amounts for
the
Class A Certificates and the Mezzanine Certificates, (B) the Unpaid Interest
Shortfall Amounts for the Class A Certificates and (C) the Principal Remittance
Amount.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property)
as of any date of determination, a per annum rate of interest equal to the
then
applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: For any Distribution Date with respect to the Class A Certificates and
the Mezzanine Certificates, a per annum rate equal to the product of (x) the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans,
weighted based on their outstanding Stated Principal Balances as of the first
day of the calendar month preceding the month in which the Distribution Date
occurs and (y) a fraction, the numerator of which is 30 and the denominator
of
which is the actual number of days elapsed in the related Accrual Period
minus
(i)
an amount, expressed as a percentage, equal to the product of (x) the Net Swap
Payment, if any, paid by the Trust for such Distribution Date divided by the
aggregate Stated Principal Balance of the Mortgage Loans and (y) 12 and (ii)
an
amount, expressed as a percentage, equal to the product of (x) the Swap
Termination Payment, if any, due from the Trust (other than any Swap Termination
Payment resulting from a Swap Provider Trigger Event) for such Distribution
Date
and (y) 12.
For
federal income tax purposes, the equivalent of the foregoing shall be expressed
as the weighted average of the REMIC II Remittance Rate on the REMIC II Regular
Interests (other than REMIC II Regular Interest II-LTIO), weighted on the basis
of the Uncertificated Balance of each such REMIC II Regular
Interest.
“Net
WAC
Rate Carryover Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, the sum of (A) the positive
excess of (i) the amount of interest accrued on such Class of Certificates
on
such Distribution Date calculated at the related Formula Rate, over (ii) the
amount of interest accrued on such Class of Certificates at the Net WAC Rate
for
such Distribution Date and (B) the Net WAC Rate Carryover Amount for the
previous Distribution Date not previously paid, together with interest thereon
at a rate equal to the Formula Rate for such Class of Certificates for such
Distribution Date and for such Accrual Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 4.07.
“New
Lease”: Any lease of REO Property entered into on behalf of REMIC I, including
any lease renewed or extended on behalf of REMIC I, if REMIC I has the right
to
renegotiate the terms of such lease.
“NIMS
Insurer”: Any insurer that is guaranteeing certain payments under notes secured
by collateral which includes all or a portion of the Class CE Certificates,
the
Class P Certificates and/or the Class R Certificates.
“Nonrecoverable
Advance”: Any Advance previously made or proposed to be made in respect of a
Mortgage Loan or REO Property that, in the good faith business judgment of
the
Servicer or the Master Servicer, as applicable, will not or, in the case of
a
proposed Advance, would not be ultimately recoverable from related Late
Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan
or
REO Property as provided herein.
“Nonrecoverable
Servicing Advance”: Any Servicing Advance previously made or proposed to be made
in respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer, will not or, in the case of a proposed Servicing
Advance, would not be ultimately recoverable from related Late Collections,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
“Non-United
States Person”: Any Person other than a United States Person.
“Notional
Amount”: With respect to the Class CE Interest and any Distribution Date, the
aggregate Uncertificated Balance of the REMIC II Regular Interests (other than
REMIC II Regular Interest II-LTP) for such Distribution Date.
“Officers’
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president (however denominated),
and by the Treasurer, the Secretary, or one of the assistant treasurers or
assistant secretaries of the Master Servicer, the Originator, the Seller or
the
Depositor, as applicable.
“One-Month
LIBOR”: With respect to the Class A Certificates, the Mezzanine Certificates,
REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2,
REMIC
II
Regular Interest II-LTA3,
REMIC
II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC
II
Regular Interest II-LTM6,
REMIC
II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC II Regular
Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC II Regular Interest
II-LTM11 and REMIC II Regular Interest II-LTM12 and any Accrual Period therefor,
the rate determined by the Trust Administrator on the related Interest
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits, as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such Interest Determination Date; provided that if such rate does
not
appear on Telerate Page 3750, the rate for such date will be determined on
the
basis of the offered rates of the Reference Banks for one-month U.S. dollar
deposits, as of 11:00 a.m. (London time) on such Interest Determination Date.
In
such event, the Trust Administrator will request the principal London office
of
each of the Reference Banks to provide a quotation of its rate. If on such
Interest Determination Date, two or more Reference Banks provide such offered
quotations, One-Month LIBOR for the related Accrual Period shall be the
arithmetic mean of such offered quotations (rounded upwards if necessary to
the
nearest whole multiple of 1/16%). If on such Interest Determination Date, fewer
than two Reference Banks provide such offered quotations, One-Month LIBOR for
the related Accrual Period shall be the higher of (i) One-Month LIBOR as
determined on the previous Interest Determination Date and (ii) the Reserve
Interest Rate. Notwithstanding the foregoing, if, under the priorities described
above, One-Month LIBOR for an Interest Determination Date would be based on
One-Month LIBOR for the previous Interest Determination Date for the third
consecutive Interest Determination Date, the Trust Administrator shall select,
after consultation with the NIMS Insurer, an alternative comparable index (over
which the Trust Administrator has no control), used for determining one-month
Eurodollar lending rates that is calculated and published (or otherwise made
available) by an independent party.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be
salaried counsel for the Depositor, the Seller, the Servicer or the Master
Servicer, acceptable to the Trustee, if such opinion is delivered to the
Trustee, or acceptable to the Trust Administrator, if such opinion is delivered
to the Trust Administrator, except that any opinion of counsel relating to
(a)
the qualification of any Trust REMIC as a REMIC or (b) compliance with the
REMIC
Provisions must be an opinion of Independent counsel.
“Original
Mortgage Loan”: Any of the Mortgage Loans included in REMIC I as of the Closing
Date.
“Originator
Master Agreement”: The Master Bulk Sale and Interim Servicing Agreement, dated
November 1, 2005, among the Seller, the Originator and ▇▇▇▇▇▇▇▇▇ Management
Group, LLC, as amended (which agreement has been assigned to the Depositor
and
modified pursuant to the Assignment Agreement).
“Originator”:
Aames Capital Corporation.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (after giving effect to distributions in
respect of the Principal Distribution Amount on such Distribution
Date).
“Overcollateralization
Release Amount”: With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”: With respect to any Distribution Date, (i) approximately
2.85%
of the
Cut-off Date Principal Balance of the Mortgage Loans, (ii) on or after the
Stepdown Date provided that a Trigger Event is not in effect, the greater of
(x)
approximately 5.70% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) and (y) an amount equal to approximately 0.50%
of
the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date, or (iii) on or after the Stepdown Date if a Trigger Event is in effect,
the Overcollateralization Target Amount for the immediately preceding
Distribution Date. Notwithstanding the foregoing, on
and
after any Distribution Date following the reduction of the aggregate Certificate
Principal Balance of the Class A Certificates and the Mezzanine Certificates
to
zero, the Overcollateralization Target Amount shall be zero.
“Overcollateralized
Amount”: For any Distribution Date, the amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) as
of
the related Determination Date minus (ii) the aggregate Certificate Principal
Balance of the Class A Certificates, the Mezzanine Certificates and the Class
P
Certificates as of such Distribution Date after giving effect to distributions
to be made on such Distribution Date.
“Ownership
Interest”: As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
“Pass-Through
Rate”: With respect to the Class A Certificates and the Mezzanine Certificates
and any Distribution Date, a rate per annum equal to the lesser of (i) the
related Formula Rate for such Distribution Date and (ii) the Net WAC Rate for
such Distribution Date.
With
respect to the Class CE Interest and any Distribution Date, a rate per annum
equal to the percentage equivalent of a fraction, the numerator of which is
(x)
the sum of (i) 100% of the interest on REMIC II Regular Interest II-LTP and
(ii)
interest on the Uncertificated Balance of each REMIC II Regular Interest listed
in clause (y) at a rate equal to the related REMIC II Remittance Rate minus
the
Marker Rate and the denominator of which is (y) the aggregate Uncertificated
Balance of REMIC II Regular Interests ▇▇-▇▇▇▇, ▇▇-▇▇▇▇, ▇▇-▇▇▇▇, ▇▇-▇▇▇▇,
▇▇-▇▇▇▇, II-LTM1,
II-LTM2, II-LTM3, II-LTM4, II-LTM5, II-LTM6, II-LTM7, II-LTM8, II-LTM9,
II-LTM10, II-LTM11, II-LTM12 and II-LTZZ.
With
respect to the Class CE Certificates, 100% of the interest distributable to
the
Class CE Interest, expressed as a per annum rate.
With
respect to the Class SWAP-IO Interest, the Class SWAP-IO Interest shall not
have
a Pass-Through Rate, but interest for such Regular Interest and each
Distribution Date shall be an amount equal to 100% of the amounts distributable
to REMIC II Regular Interest II-LTIO for such Distribution Date.
“Percentage
Interest”: With respect to any Class of Certificates (other than the Residual
Certificates), the undivided percentage ownership in such Class evidenced by
such Certificate, expressed as a percentage, the numerator of which is the
initial Certificate Principal Balance or Notional Amount represented by such
Certificate and the denominator of which is the aggregate initial Certificate
Principal Balance or Notional Amount of all of the Certificates of such Class.
The Class A Certificates and the Mezzanine Certificates are issuable only in
minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $25,000 and integral multiples of $1.00 in excess thereof.
The Class P Certificates are issuable only in Percentage Interests corresponding
to initial Certificate Principal Balances of $20 and integral multiples thereof.
The Class CE Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Certificate Principal Balances of $10,000
and
integral multiples of $1.00 in excess thereof; provided, however, that a single
Certificate of each such Class of Certificates may be issued having a Percentage
Interest corresponding to the remainder of the aggregate initial Certificate
Principal Balance or Notional Amount of such Class or to an otherwise authorized
denomination for such Class plus such remainder. With respect to any Residual
Certificate, the undivided percentage ownership in such Class evidenced by
such
Certificate, as set forth on the face of such Certificate. The Residual
Certificates are issuable in Percentage Interests of 20% and multiples
thereof.
“Periodic
Rate Cap”: With respect to each Adjustable-Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage Loan
may increase or decrease (without regard to the Maximum Mortgage Rate or the
Minimum Mortgage Rate) on such Adjustment Date (other than the first Adjustment
Date) from the Mortgage Rate in effect immediately prior to such Adjustment
Date.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued or managed by the Depositor, the Servicer, the Master Servicer, the
NIMS
Insurer, the Trustee, the Trust Administrator or any of their respective
Affiliates or for which an Affiliate of the NIMS Insurer, the Trustee or the
Trust Administrator serves as an advisor:
(1) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(2) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in the highest available rating
category of ▇▇▇▇▇’▇ and S&P and provided that each such investment has an
original maturity of no more than 365 days; and provided further that, if the
only Rating Agency is S&P and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations of
such
subsidiary are not separately rated, the applicable rating shall be that of
the
bank holding company; and, provided further that, if the original maturity
of
such short-term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating of
such
institution shall be A-1+ in the case of S&P if S&P is the Rating
Agency; and (B) any other demand or time deposit or deposit which is fully
insured by the FDIC;
(3) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated A-1+ or higher by S&P and A2 or
higher by ▇▇▇▇▇’▇, provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause (i) above
and
must (A) be valued daily at current market prices plus accrued interest, (B)
pursuant to such valuation, be equal, at all times, to 105% of the cash
transferred by the Trustee in exchange for such collateral and (C) be delivered
to the Trustee or, if the Trustee is supplying the collateral, an agent for
the
Trustee, in such a manner as to accomplish perfection of a security interest
in
the collateral by possession of certificated securities;
(4) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by a Rating Agency in its highest long-term unsecured rating
category at the time of such investment or contractual commitment providing
for
such investment;
(5) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by a Rating
Agency rating such paper in its highest short-term unsecured debt rating
available at the time of such investment;
(6) units
of
money market funds, including those managed or advised by the Trust
Administrator or its Affiliates, that have been rated “AAA” by S&P and “Aaa”
by ▇▇▇▇▇’▇; and
(7) if
previously confirmed in writing to the Trustee and the Trust Administrator
and
consented to by the NIMS Insurer, any other demand, money market or time
deposit, or any other obligation, security or investment (provided that such
investments are money-market or other relatively risk-free instruments without
options and with maturities no later than the expected Distribution Date) as
may
be acceptable to the Rating Agencies in writing as a permitted investment of
funds backing securities having ratings equivalent to its highest initial rating
of the Class A Certificates;
provided,
that no instrument described hereunder shall evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
“Permitted
Transferee”: Any Transferee of a Residual Certificate other than a Disqualified
Organization or Non-United States Person.
“Person”:
Any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Prepayment Period, any prepayment premium, fee,
penalty or charge payable by a Mortgagor in connection with any full or partial
Principal Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note (other than any Servicer Prepayment Charge Payment
Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans included in REMIC I on such date, attached hereto as Schedule 2 (including
the Prepayment Charge Summary attached thereto). The Prepayment Charge Schedule
shall set forth the following information with respect to each related Mortgage
Loan:
(1) the
Mortgage Loan identifying number;
(2) a
code
indicating the type of Prepayment Charge;
(3) the
state
of origination of the related Mortgage Loan;
(4) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(5) the
term
of the related Mortgage Loan; and
(6) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
The
Prepayment Charge Schedule shall be amended from time to time by the Depositor
in accordance with the provisions of this Agreement and a copy of such amended
Prepayment Charge Schedule shall be furnished by the Depositor to the NIMS
Insurer and the Servicer.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full during the portion of
the
related Prepayment Period commencing on the first day of the calendar month
in
which the Distribution Date occurs and ending on the last day of the related
Prepayment Period, an amount equal to interest (to the extent received) at
the
applicable Net Mortgage Rate on the amount of such Principal Prepayment for
the
number of days commencing on the first day of the calendar month in which such
Distribution Date occurs and ending on the date on which such prepayment is
so
applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a Principal Prepayment during the portion of the
related Prepayment Period commencing on the first day of the related Prepayment
Period and ending on the last day of the calendar month preceding the month
in
which such Distribution Date occurs, an amount equal to interest on the Mortgage
Loan at the applicable Net Mortgage Rate on the amount of such Principal
Prepayment for the number of days commencing on the date such Principal
Prepayment was applied and ending on the last day of the calendar month
preceding the month in which such Distribution Date occurs.
“Prepayment
Period”: With respect to any Distribution
Date and any Principal Prepayment in full, the period commencing on the
16th
day of
the calendar month preceding the calendar month in which such Distribution
Date
occurs (or, in the case of the first Distribution Date, commencing on
February
1,
2006)
and ending on the 15th
day of
the calendar month in which such Distribution Date occurs and for any
Distribution Date and any Principal Prepayment in part, the calendar month
preceding the month in which such Distribution Date occurs.
“Principal
Balance”: As to any Mortgage Loan other than a Liquidated Mortgage Loan, and any
day, the related Cut-off Date Principal Balance, minus all collections credited
against the Cut-off Date Principal Balance of any such Mortgage Loan. For
purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have
a Principal Balance equal to the Principal Balance of the related Mortgage
Loan
as of the final recovery of related Liquidation Proceeds and a Principal Balance
of zero thereafter. As to any REO Property and any day, the Principal Balance
of
the related Mortgage Loan immediately prior to such Mortgage Loan becoming
REO
Property minus any REO Principal Amortization received with respect thereto
on
or prior to such day.
“Principal
Distribution Amount”: With respect to any Distribution Date, the sum of (i) the
Basic Principal Distribution Amount for such Distribution Date and (ii) the
Extra Principal Distribution Amount for such Distribution Date.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount of scheduled
interest due on any Due Date in any month or months subsequent to the month
of
prepayment.
“Principal
Remittance Amount”: With respect to any Distribution Date, the sum of (i) each
scheduled payment of principal collected or advanced by the Servicer that were
due during the related Due Period, (ii) the principal portion of all partial
and
full Principal Prepayments applied by the Servicer during the related Prepayment
Period, (iii) the principal portion of all related Net Liquidation Proceeds,
Insurance Proceeds and Subsequent Recoveries received during such Prepayment
Period, (iv) that portion of the Purchase Price, representing principal of
any
repurchased Mortgage Loan, deposited to the Distribution Account during such
Prepayment Period, (v) the principal portion of any related Substitution
Adjustment Amounts deposited in the Distribution Account during such Prepayment
Period and (vi) on the Distribution Date on which the Trust Fund is to be
terminated pursuant to Section 9.01, that portion of the Termination Price,
in respect of principal.
“Prospectus
Supplement”: That certain Prospectus Supplement dated February 17, 2006 relating
to the public offering of the Class A Certificates and the Mezzanine
Certificates (other than the Class M-5 Certificates, the Class M-6 Certificates,
the Class M-7 Certificates and the Class M-12 Certificates).
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 9.01, and as confirmed by an Officers’ Certificate from the
Servicer and to the Trustee an amount equal to the sum of (i) 100% of the Stated
Principal Balance thereof as of the date of purchase (or such other price as
provided in Section 9.01), (ii) in the case of (x) a Mortgage Loan, accrued
interest on such Stated Principal Balance at the applicable Net Mortgage Rate
in
effect from time to time from the Due Date as to which interest was last covered
by a payment by the Mortgagor or an Advance, which payment or Advance had as
of
the date of purchase been distributed pursuant to Section 4.01, through the
end of the calendar month in which the purchase is to be effected and (y) an
REO
Property, the sum of (1) accrued interest on such Stated Principal Balance
at
the applicable Net Mortgage Rate in effect from time to time from the Due Date
as to which interest was last covered by a payment by the Mortgagor or an
Advance by the Servicer through the end of the calendar month immediately
preceding the calendar month in which such REO Property was acquired, plus
(2)
REO Imputed Interest for such REO Property for each calendar month commencing
with the calendar month in which such REO Property was acquired and ending
with
the calendar month in which such purchase is to be effected, net of the total
of
all net rental income, Insurance Proceeds, Liquidation Proceeds and Advances
that as of the date of purchase had been distributed as or to cover REO Imputed
Interest pursuant to Section 4.01, (iii) any unreimbursed Servicing
Advances and Advances (including Nonrecoverable Advances and Nonrecoverable
Servicing Advances) and any unpaid Servicing Fees allocable to such Mortgage
Loan or REO Property, (iv) any amounts previously withdrawn from the Collection
Account pursuant to Section 3.11(a)(9) and Section 3.16(b) or the Distribution
Account in respect of such Mortgage Loan or REO Property, and (v) in the case
of
a Mortgage Loan required to be purchased pursuant to Section 2.03, expenses
reasonably incurred or to be incurred by the Servicer, the Master Servicer,
the
NIMS Insurer, the Trust Administrator or the Trustee in respect of the breach
or
defect giving rise to the purchase obligation including any costs and damages
incurred by the Trust in connection with any violation by such loan of any
predatory or abusive lending law. With respect to the Originator and any
Mortgage Loan or REO Property to be purchased pursuant to or as contemplated
by
Section 2.03 or 10.01, and as confirmed by a certificate of a Servicing
Officer to the Trustee and the Master Servicer, an amount equal to the amount
set forth pursuant to the terms of the Originator Master Agreement.
“Qualified
Substitute Mortgage Loan”: With respect to the Seller, a mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement
which must, on the date of such substitution, (i) have an outstanding Stated
Principal Balance (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate Stated Principal Balance), after
application of all scheduled payments of principal and interest due during
or
prior to the month of substitution, not in excess of, and not more than 5%
less
than, the outstanding Stated Principal Balance of the Deleted Mortgage Loan
as
of the Due Date in the calendar month during which the substitution occurs,
(ii)
have a Mortgage Rate not less than (and not more than one percentage point
in
excess of) the Mortgage Rate of the Deleted Mortgage Loan, (iii) if the
Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have
a
Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the Deleted
Mortgage Loan, (iv) if the Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a Minimum Mortgage Rate not less than the
Minimum Mortgage Rate of the Deleted Mortgage Loan, (v) if the Qualified
Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have a Gross
Margin equal to or greater than the Gross Margin of the Deleted Mortgage Loan,
(vi) if the Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage
Loan, have a next Adjustment Date not more than two months later than the next
Adjustment Date on the Deleted Mortgage Loan, (vii) reserved, (viii) have a
remaining term to maturity not greater than (and not more than one year less
than) that of the Deleted Mortgage Loan, (ix) be current as of the date of
substitution, (x) have a Loan-to-Value Ratio or Combined Loan-to-Value Ratio,
as
applicable, as of the date of substitution equal to or lower than the
Loan-to-Value Ratio or Combined Loan-to-Value Ratio of the Deleted Mortgage
Loan
as of such date, (xi) have a risk grading determined by the related Originator
at least equal to the risk grading assigned on the Deleted Mortgage Loan, (xii)
have been underwritten or reunderwritten by the Originator in accordance with
the same underwriting criteria and guidelines as the Deleted Mortgage Loan
and
(xiii) conform to each representation and warranty assigned to the Depositor
pursuant to the Assignment Agreement. In the event that one or more mortgage
loans are substituted for one or more Deleted Mortgage Loans, the amounts
described in clause (i) hereof shall be determined on the basis of aggregate
Stated Principal Balance, the Mortgage Rates described in clauses (ii) through
(vi) hereof shall be satisfied for each such mortgage loan, the risk gradings
described in clause (xi) hereof shall be satisfied as to each such mortgage
loan, the terms described in clause (viii) hereof shall be determined on the
basis of weighted average remaining term to maturity (provided that no such
mortgage loan may have a remaining term to maturity longer than the Deleted
Mortgage Loan), the Loan-to-Value Ratios or Combined Loan-to-Value Ratios
described in clause (x) hereof shall be satisfied as to each such mortgage
loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (xiii) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as
the case may be. With respect to the Originator, a mortgage loan substituted
for
a Deleted Mortgage Loan pursuant to the terms of the Originator Master Agreement
which must, on the date of such substitution conform to the terms set forth
in
the Originator Master Agreement.
“Rating
Agency” or “Rating Agencies”: ▇▇▇▇▇’▇ and S&P or their successors. If such
agencies or their successors are no longer in existence, “Rating Agencies” shall
be such nationally recognized statistical rating agencies, or other comparable
Persons, designated by the Depositor, notice of which designation shall be
given
to the Trustee and the Master Servicer.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan or any Mortgage Loan charged
off by the Servicer pursuant to this Agreement, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage Loan.
If
the Servicer receives Subsequent Recoveries with respect to any Mortgage Loan,
the amount of the Realized Loss with respect to that Mortgage Loan will be
reduced to the extent such recoveries are applied to principal distributions
on
any Distribution Date.
“Record
Date”: With respect to each Distribution Date and any Book-Entry Certificate,
the Business Day immediately preceding such Distribution Date. With respect
to
each Distribution Date and any other Certificates, including any Definitive
Certificates, the last Business Day of the month immediately preceding the
month
in which such Distribution Date occurs.
“Reference
Banks”: Deutsche Bank AG, Barclay’s Bank PLC, The Tokyo Mitsubishi Bank and
National Westminster Bank PLC and their successors in interest; provided,
however, that if any of the foregoing banks are not suitable to serve as a
Reference Bank, then any leading banks selected by the Trust Administrator
(after consultation with the NIMS Insurer) which are engaged in transactions
in
Eurodollar deposits in the international Eurocurrency market (i) with an
established place of business in London, (ii) not controlling, under the control
of or under common control with the Depositor or any Affiliate thereof and
(iii)
which have been designated as such by the Trust Administrator.
“Refinanced
Mortgage Loan”: A Mortgage Loan the proceeds of which were not used to purchase
the related Mortgaged Property.
“Regular
Certificate”: Any Class A Certificate, Mezzanine Certificate, Class CE
Certificate or Class P Certificate.
“Regular
Interest”: A “regular interest” in a REMIC within the meaning of
Section 860G(a)(1) of the Code.
“Regulation
AB”: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Relevant
Servicing Criteria”: The Servicing Criteria applicable to the various parties,
as set forth on Exhibit O attached hereto. For clarification purposes, multiple
parties can have responsibility for the same Relevant Servicing
Criteria.
“Relief
Act”: The Servicemembers Civil Relief Act and any similar state
laws.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date and any Mortgage
Loan, any reduction in the amount of interest collectible on such Mortgage
Loan
for the most recently ended calendar month as a result of the application of
the
Relief Act or any similar state or local law.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
“REMIC
I”: The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made, consisting of: (i) such Mortgage Loans and Prepayment
Charges as from time to time are subject to this Agreement, together with the
Mortgage Files relating thereto, and together with all collections thereon
and
proceeds thereof; (ii) any REO Property, together with all collections thereon
and proceeds thereof; (iii) the Trustee’s rights with respect to the Mortgage
Loans under all insurance policies, required to be maintained pursuant to this
Agreement and any proceeds thereof; (iv) the Depositor’s rights under the
Originator Master Agreement (assigned to the Depositor pursuant to the
Assignment Agreement); (v) the Collection Account (other than any amounts
representing any Servicer Prepayment Charge Payment Amounts), the Distribution
Account (other than any amounts representing any Servicer Prepayment Charge
Payment Amounts) and any REO Account, and such assets that are deposited therein
from time to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto. Notwithstanding the foregoing,
however, REMIC I specifically excludes the Net WAC Rate Carryover Reserve
Account, the Interest Rate Swap Agreement, the Cap Contract, the Cap Account,
the Swap Account, the Supplemental Interest Trust, any Servicer Prepayment
Charge Payment Amounts, all payments and other collections of principal and
interest due on the Mortgage Loans on or before the Cut-off Date and all
Prepayment Charges payable in connection with Principal Prepayments made before
the Cut-off Date.
“REMIC
I
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto. The designations for the respective
REMIC I Regular Interests are set forth in the Preliminary Statement hereto.
“REMIC
I
Remittance Rate”: With respect to REMIC I Regular Interest I and REMIC I Regular
Interest P, a per annum rate equal to the weighted average Adjusted Net Mortgage
Rate of the Mortgage Loans. With respect to each REMIC I Regular Interest ending
with the designation “A”, a per annum rate equal to the weighted average
Adjusted Net Mortgage Rate of the Mortgage Loans multiplied by 2, subject to
a
maximum rate of 9.510%. With respect to each REMIC I Regular Interest ending
with the designation “B”, the greater of (x) a per annum rate equal to the
excess, if any, of (i) 2 multiplied by the weighted average Net Mortgage Rate
of
the Mortgage Loans over (ii) 9.510% and (y) 0.00%.
“REMIC
II”: The segregated pool of assets consisting of all of the REMIC I Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC II
Certificateholders pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
II
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount (subject to adjustment based on the actual number of days elapsed in
the
respective Accrual Periods for the indicated Regular Interests for such
Distribution Date) equal to (a) the product of the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties then outstanding and (ii)
the
REMIC II Remittance Rate for REMIC II Regular Interest II-LTAA minus the Marker
Rate, divided by (b) 12.
“REMIC
II
Overcollateralized Amount”: With respect to any date of determination, (i) 1% of
the aggregate Uncertificated Balance of the REMIC II Regular Interests (other
than REMIC II Regular Interest II-LTP and REMIC II Regular Interest II-LTIO)
minus (ii) the aggregate Uncertificated Balance of REMIC II Regular Interest
II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3,
REMIC II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC
II
Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest
II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8,
REMIC II Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC
II
Regular Interest II-LTM11 and REMIC II Regular Interest II-LTM12, in each case
as of such date of determination.
“REMIC
II
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to the product of (i) the aggregate Stated Principal Balance of
the
Mortgage Loans and REO Properties then outstanding and (ii) 1 minus a fraction,
the numerator of which is two times the aggregate Uncertificated Balance of
REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC
II
Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular
Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5,
REMIC II Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC
II
Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular
Interest II-LTM10, REMIC II Regular Interest II-LTM11, REMIC II Regular Interest
II-LTM12 and the denominator of which is the aggregate Uncertificated Balance
of
REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC
II
Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular
Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5,
REMIC II Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC
II
Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular
Interest II-LTM10, REMIC II Regular Interest II-LTM11, REMIC II Regular Interest
II-LTM12, and REMIC II Regular Interest II-LTZZ.
“REMIC
II
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a “regular interest” in
REMIC II. Each REMIC II Regular Interest shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal (other than REMIC II Regular Interest II-LTIO),
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement hereto.
The REMIC II Regular Interests are as follows: REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2,
REMIC II Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC
II
Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular
Interest II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular Interest
II-LTM5, REMIC II Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7,
REMIC II Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC
II
Regular Interest II-LTM10, REMIC II Regular Interest II-LTM11, REMIC II Regular
Interest II-LTM12, REMIC II Regular Interest II-LTP, REMIC II Regular Interest
I-TLZZ and REMIC II Regular Interest II-LTIO. REMIC II Regular Interest II-LTP
shall also be entitled to any Prepayment Charges received by the Trust
Fund.
“REMIC
II
Remittance Rate”: With respect to REMIC II Regular Interest II-LTAA, REMIC II
Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular
Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular Interest
II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3,
REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC
II
Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular
Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular Interest
II-LTM10, REMIC II Regular Interest II-LTM11, REMIC II Regular Interest
II-LTM12, REMIC II Regular Interest II-LTZZ, REMIC II Regular Interest II-LTP,
a
per annum rate (but not less than zero) equal to the weighted average of (w)
with respect to REMIC I Regular Interests ending with the designation “B”, the
weighted average of the REMIC I Remittance Rates for such REMIC I Regular
Interests, weighted on the basis of the Uncertificated Principal Balance of
such
REMIC I Regular Interests for each such Distribution Date and (x) with respect
to REMIC I Regular Interests ending with the designation “A”, for each
Distribution Date listed below, the weighted average of the rates listed below
for each such REMIC I Regular Interest listed below, weighted on the basis
of
the Uncertificated Principal Balance of each such REMIC I Regular Interest
for
each such Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
2
|
I-2-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
|
REMIC
I Remittance Rate
|
|
|
3
|
I-3-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
and I-2-A
|
REMIC
I Remittance Rate
|
|
|
4
|
I-4-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-3-A
|
REMIC
I Remittance Rate
|
|
|
5
|
I-5-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-4-A
|
REMIC
I Remittance Rate
|
|
|
6
|
I-6-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-5-A
|
REMIC
I Remittance Rate
|
|
|
7
|
I-7-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-6-A
|
REMIC
I Remittance Rate
|
|
|
8
|
I-8-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-7-A
|
REMIC
I Remittance Rate
|
|
|
9
|
I-9-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-8-A
|
REMIC
I Remittance Rate
|
|
|
10
|
I-10-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-9-A
|
REMIC
I Remittance Rate
|
|
|
11
|
I-11-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-10-A
|
REMIC
I Remittance Rate
|
|
|
12
|
I-12-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-11-A
|
REMIC
I Remittance Rate
|
|
|
13
|
I-13-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-12-A
|
REMIC
I Remittance Rate
|
|
|
14
|
I-14-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-13-A
|
REMIC
I Remittance Rate
|
|
|
15
|
I-15-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-14-A
|
REMIC
I Remittance Rate
|
|
|
16
|
I-16-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-15-A
|
REMIC
I Remittance Rate
|
|
|
17
|
I-17-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-16-A
|
REMIC
I Remittance Rate
|
|
|
18
|
I-18-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-17-A
|
REMIC
I Remittance Rate
|
|
|
19
|
I-19-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-18-A
|
REMIC
I Remittance Rate
|
|
|
20
|
I-20-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-19-A
|
REMIC
I Remittance Rate
|
|
|
21
|
I-21-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-20-A
|
REMIC
I Remittance Rate
|
|
|
22
|
I-22-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-21-A
|
REMIC
I Remittance Rate
|
|
|
23
|
I-23-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-22-A
|
REMIC
I Remittance Rate
|
|
|
24
|
I-24-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-23-A
|
REMIC
I Remittance Rate
|
|
|
25
|
I-25-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-24-A
|
REMIC
I Remittance Rate
|
|
|
26
|
I-26-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-25-A
|
REMIC
I Remittance Rate
|
|
|
27
|
I-27-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-26-A
|
REMIC
I Remittance Rate
|
|
|
28
|
I-28-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-27-A
|
REMIC
I Remittance Rate
|
|
|
29
|
I-29-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-28-A
|
REMIC
I Remittance Rate
|
|
|
30
|
I-30-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-29-A
|
REMIC
I Remittance Rate
|
|
|
31
|
I-31-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-30-A
|
REMIC
I Remittance Rate
|
|
|
32
|
I-32-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-31-A
|
REMIC
I Remittance Rate
|
|
|
33
|
I-33-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-32-A
|
REMIC
I Remittance Rate
|
|
|
34
|
I-34-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-33-A
|
REMIC
I Remittance Rate
|
|
|
35
|
I-35-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-34-A
|
REMIC
I Remittance Rate
|
|
|
36
|
I-36-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-35-A
|
REMIC
I Remittance Rate
|
|
|
37
|
I-37-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-36-A
|
REMIC
I Remittance Rate
|
|
|
38
|
I-38-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-37-A
|
REMIC
I Remittance Rate
|
|
|
39
|
I-39-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-38-A
|
REMIC
I Remittance Rate
|
|
|
40
|
I-40-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-39-A
|
REMIC
I Remittance Rate
|
|
|
41
|
I-41-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-40-A
|
REMIC
I Remittance Rate
|
|
|
42
|
I-42-A
and I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-41-A
|
REMIC
I Remittance Rate
|
|
|
43
|
I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-42-A
|
REMIC
I Remittance Rate
|
|
|
thereafter
|
I-41-A
through I-43-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
With
respect to REMIC 2 Regular Interest LT-IO, the excess of (i) the weighted
average of the REMIC I Remittance Rates for REMIC I Regular Interests ending
with the designation “A”, over (ii) 2 multiplied by Swap LIBOR.
“REMIC
II
Required Overcollateralized Amount”: 1.00% of the Overcollateralization Target
Amount.
“REMIC
III”: The segregated pool of assets consisting of all of the REMIC II Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC III
Certificateholders pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
III Certificate”: Any Regular Certificate (other than a Class CE Certificate or
Class P Certificate) or Class R Certificate.
“REMIC
III Certificateholder”: The Holder of any REMIC III Certificate.
“REMIC
III Regular Interest”: Any Class A Certificate, Mezzanine Certificate, the Class
CE Interest, the Class P Interest or the SWAP-IO Interest.
“REMIC
IV”: The segregated pool of assets consisting of all of the Class CE Interest
conveyed in trust to the Trustee, for the benefit of the Holders of the Class
CE
Certificates and the Class R-X Certificate (in respect of the Class R-IV
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
V”: The segregated pool of assets consisting of all of the Class P Interest
conveyed in trust to the Trustee, for the benefit of the Holders of the Class
P
Certificates and the Class R-X Certificate (in respect of the Class R-V
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
VI”: The segregated pool of assets consisting of the Class SWAP-IO Interest
conveyed in trust to the Trustee, for the benefit of the Holders of REMIC VI
Regular Interest SWAP-IO and the Class R-X Certificate (in respect of the Class
R-VI Interest), pursuant to Article II hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
“REMIC
VI
Regular Interest”: REMIC VI Regular Interest SWAP-IO.
“REMIC
Provisions”: Provisions of the federal income tax law relating to REMICs which
appear at Section 860A through 860G of the Code, and related provisions,
and proposed, temporary and final regulations and published rulings, notices
and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
“REMIC
Regular Interest”: Any REMIC I Regular Interest, REMIC II Regular Interest,
REMIC III Regular Interest or REMIC VI Regular Interest SWAP-IO.
“REMIC
Remittance Rate”: The REMIC I Remittance Rate or the REMIC II Remittance
Rate.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Trust
Administrator and the NIMS Insurer pursuant to Section 4.03.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code as being included in the
term “rents from real property.”
“REO
Account”: The account or accounts maintained, or caused to be maintained, by the
Servicer in respect of an REO Property pursuant to Section 3.23.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of
REMIC I.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of REMIC I, one month’s interest at the
applicable Net Mortgage Rate on the Stated Principal Balance of such REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan, if appropriate) as of the close of business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 9.01 that is allocable to such
REO Property) or otherwise, net of any portion of such amounts (i) payable
pursuant to Section 3.23(c) in respect of the proper operation, management
and
maintenance of such REO Property or (ii) payable or reimbursable to the Servicer
pursuant to Section 3.23(d) for unpaid Servicing Fees in respect of the related
Mortgage Loan and unreimbursed Servicing Advances and Advances in respect of
such REO Property or the related Mortgage Loan, over (b) the REO Imputed
Interest in respect of such REO Property for such calendar month.
“REO
Property”: A Mortgaged Property acquired by the Servicer on behalf of REMIC I
through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23.
“Reportable
Event”: The meaning set forth in Section 4.06(a)(iii).
“Request
for Release”: A request for release in such electronic or other format as shall
be mutually agreeable by the Trust Administrator and the Servicer, in
substantially the form of Exhibit E attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trust Administrator determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of 1/16%)
of
the one-month U.S. dollar lending rates which New York City banks selected
by
the Trust Administrator are quoting on the relevant Interest Determination
Date
to the principal London offices of leading banks in the London interbank market
or (ii) in the event that the Trust Administrator can determine no such
arithmetic mean, the lowest one-month U.S. dollar lending rate which New York
City banks selected by the Trust Administrator are quoting on such Interest
Determination Date to leading European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
▇▇▇▇▇▇ ▇▇▇ eligible condominium project, (iv) a manufactured home, or (v) a
detached one-family dwelling in a planned unit development, none of which is
a
co-operative or mobile home.
“Residual
Certificate”: Any one of the Class R Certificates and the Class R-X
Certificates.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee or the Trust Administrator, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the Chairman
or
Vice Chairman of the Executive or Standing Committee of the Board of Directors
or Trustees, the President, the Chairman of the Committee on Trust Matters,
any
vice president, any assistant vice president, the Secretary, any assistant
secretary, the Treasurer, any assistant treasurer, the Cashier, any assistant
cashier, any trust officer or assistant trust officer, the Controller and any
assistant controller or any other officer of the Trustee or the Trust
Administrator, as applicable, customarily performing functions similar to those
performed by any of the above designated officers, in each case, having direct
responsibility for the administration of this Agreement and, with respect to
a
particular matter relating to this Agreement, to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject.
“S&P”:
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., or its successor in interest.
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”: The ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (including any interpretations thereof by
the
Commission’s staff).
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”: The meaning set forth in Section 4.06(a)(iv).
“Securities
Act”: The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Seller”:
Ocwen Mortgage Asset Trust I, or its successor in interest, in its capacity
as
assignor under the Assignment Agreement.
“Senior
Principal Distribution Amount”: The excess of (x) the aggregate Certificate
Principal Balance of the Class A Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 52.30% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) over $2,119,059.05.
“Servicer”:
Ocwen Loan Servicing, LLC or its successor in interest, in its capacity as
servicer hereunder.
“Servicer
Event of Default”: One or more of the events described in Section
7.01(a).
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by the Servicer in
respect of any waived Prepayment Charges pursuant to Section
2.05(a).
“Servicer
Remittance Date”: With respect to any Distribution Date, the 18th
day of
the calendar month in which such Distribution Date occurs or, if such
18th
day is
not a Business Day, the Business Day immediately preceding such 18th
day.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and disbursements), other than
Advances, incurred by the Servicer or a prior servicer (to be reimbursed by
the
Servicer) prior to, on or after the Cut-off Date in the performance of its
servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of the Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures, in respect
of a particular Mortgage Loan, (iii) the management and liquidation of the
REO
Property (including any fees of an independent contractor (such as a real estate
broker) engaged by the Servicer in connection with such activity), (iv) taxes,
assessments, water rates, sewer rents and other charges which are or may become
a lien upon the Mortgaged Property and (v) obtaining any legal documentation
required to be included in the Mortgage File and/or correcting any outstanding
title issues (i.e. any lien or encumbrance on the Mortgaged Property that
prevents the effective enforcement of the intended lien position) reasonably
necessary for the Servicer to perform its obligations under this Agreement.
Servicing Advances also include any reasonable “out-of-pocket” costs and
expenses (including legal fees) incurred by the Servicer in connection with
executing and recording instruments of satisfaction, deeds of reconveyance
or
Assignments of Mortgage in connection with any foreclosure in respect of any
Mortgage Loan to the extent not recovered from the related Mortgagor or
otherwise payable under this Agreement. The Servicer shall not be required
to
make any Servicing Advance that would be a Nonrecoverable Servicing
Advance.
“Servicing
Fee”: With respect to each Mortgage Loan and for any calendar month, an amount
equal to one-twelfth of the Servicing Fee Rate (without regards to the words
“per annum” in the definition thereof) multiplied by the Stated Principal
Balance of the Mortgage Loans as of the first day of the related Due
Period.
“Servicing
Fee Rate”: 0.50% per annum.
“Servicing
Officer”: Any officer of the Servicer involved in or responsible for the
administration and servicing of the Mortgage Loans, whose name appears on a
list
of servicing officers furnished by the Servicer to the Master Servicer, the
Trust Administrator and the Trustee, upon request, as such list may from time
to
time be amended. With respect to the Master Servicer, any officer of the Master
Servicer involved in or responsible for, the administration and master servicing
of the Mortgage Loans whose name appears on a list of master servicing officers
furnished by the Master Servicer to the Trust Administrator and the Trustee
upon
request, as such list may from time to time be amended.
“Servicing
Transfer Costs”: Shall mean all reasonable out-of-pocket costs and expenses
incurred by the Master Servicer in connection with the transfer of servicing
from a predecessor servicer, including, without limitation, any reasonable
costs
or expenses associated with the complete transfer of all servicing data and
the
completion, correction or manipulation of such servicing data as may be required
by the Master Servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the Master Servicer to service the Mortgage Loans
properly and effectively.
“Significance
Percentage”: The percentage equivalent of a fraction, the numerator of which is
the net present value of the estimated future amounts payable under the Interest
Rate Swap Agreement and the denominator of which is the aggregate Certificate
Principal Balance of the Class A Certificates, the Mezzanine Certificates and
the Class CE Certificates on such Distribution Date (after giving effect to
all
distributions on such Distribution Date), in each case as determined pursuant
to
Section 4.02(b).
“Single
Certificate”: With respect to any Class of Certificates (other than the Class P
Certificates and the Residual Certificates), a hypothetical Certificate of
such
Class evidencing a Percentage Interest for such Class corresponding to an
initial Certificate Principal Balance of $1,000. With respect to the Class
P
Certificates and the Residual Certificates, a hypothetical Certificate of such
Class evidencing a 100% Percentage Interest in such Class.
“Startup
Day”: With respect to each Trust REMIC, the day designated as such pursuant to
Section 10.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the Cut-off Date Principal Balance of such Mortgage Loan,
as shown in the Mortgage Loan Schedule, minus the sum of (i) the principal
portion of each Monthly Payment due on a Due Date subsequent to the Cut-off
Date, to the extent received from the Mortgagor or advanced by the Servicer
and
distributed pursuant to Section 4.01 on or before such date of
determination, (ii) all Principal Prepayments received after the Cut-off Date,
to the extent distributed pursuant to Section 4.01 on or before such date
of determination, (iii) all Liquidation Proceeds and Insurance Proceeds applied
by the Servicer as recoveries of principal in accordance with the provisions
of
Section 3.16, to the extent distributed pursuant to Section 4.01 on or
before such date of determination, and (iv) any Realized Loss incurred with
respect thereto as a result of a Deficient Valuation made during or prior to
the
Prepayment Period for the most recent Distribution Date coinciding with or
preceding such date of determination; and (b) as of any date of determination
coinciding with or subsequent to the Distribution Date on which the proceeds,
if
any, of a Liquidation Event with respect to such Mortgage Loan would be
distributed, zero. With respect to any REO Property: (a) as of any date of
determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property
would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of REMIC I, minus the sum of (i) if such REO Property
was
acquired before the Distribution Date in any calendar month, the principal
portion of the Monthly Payment due on the Due Date in the calendar month of
acquisition, to the extent advanced by the Servicer and distributed pursuant
to
Section 4.01 on or before such date of determination, and (ii) the
aggregate amount of REO Principal Amortization in respect of such REO Property
for all previously ended calendar months, to the extent distributed pursuant
to
Section 4.01 on or before such date of determination; and (b) as of any
date of determination coinciding with or subsequent to the Distribution Date
on
which the proceeds, if any, of a Liquidation Event with respect to such REO
Property would be distributed, zero.
“Stepdown
Date”: The earlier to occur of (i) the Distribution Date on which the aggregate
Certificate Principal Balance of the Class A Certificates has been reduced
to
zero and (ii) the later to occur of (x) the Distribution Date occurring in
March
2009 and (y) the first Distribution Date on which the Credit Enhancement
Percentage (calculated for this purpose only after taking into account payments
of principal on the Mortgage Loans but prior to distribution of the Principal
Distribution Amount to the Certificates then entitled to distributions of
principal on such Distribution Date) is equal to or greater than
47.70%.
“Sub-Servicer”:
Any Person with which the Servicer has entered into a Sub-Servicing
Agreement.
“Sub-Servicing
Account”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the
Servicer.
“Sub-Servicing
Agreement”: The written contract between the Servicer and a Sub-Servicer
relating to servicing and administration of certain Mortgage Loans meeting
the
requirements set forth in Section 3.02.
“Subsequent
Recoveries”: As of any Distribution Date, unexpected amounts received by the
Servicer (net of any related expenses permitted to be reimbursed to the Servicer
or the Master Servicer) specifically related to a Mortgage Loan that was the
subject of a liquidation or an REO Disposition prior to the related Prepayment
Period that resulted in a Realized Loss.
“Substitution
Adjustment Amount”: As defined in Section 2.03(b).
“Supplemental
Interest Trust”: As defined in Section 4.08(a).
“Supplemental
Interest Trust Trustee”: ▇▇▇▇▇ Fargo Bank, N.A., a national banking association,
not in its individual capacity but solely in its capacity as supplemental
interest trust trustee, and any successor thereto.
“Swap
Account”: The account or accounts created and maintained pursuant to Section
4.08. The Swap Account must be an Eligible Account.
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due to a
discrepancy between the Uncertificated Notional Amount of the Class SWAP-IO
Interest and the scheduled notional amount pursuant to the Interest Rate Swap
Agreement.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by the Swap Provider under
the Swap Agreement.
“Swap
Provider”: Bear
▇▇▇▇▇▇▇ Financial Products, Inc.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party.
“Swap
Termination Payment”: The payment due under the Interest Rate Swap Agreement
upon the early termination of the Interest Rate Swap Agreement.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on
behalf of the Trust Fund due to the classification of portions thereof as REMICs
under the REMIC Provisions, together with any and all other information reports
or returns that may be required to be furnished to the Certificateholders or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local tax
laws.
“Telerate
Page 3750”: The display designated as page “3750” on the Dow ▇▇▇▇▇ Telerate
Capital Markets Report (or such other page as may replace page 3750 on that
report for the purpose of displaying London interbank offered rates of major
banks).
“Termination
Price”: As defined in Section 9.01.
“Terminator”:
As defined in Section 9.01.
“Transfer”:
Any direct or indirect transfer, sale, pledge, hypothecation, or other form
of
assignment of any Ownership Interest in a Certificate.
“Transferee”:
Any Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”:
Any Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date on or
after the Stepdown Date if:
(a) the
Delinquency Percentage exceeds 33.54% of the Credit Enhancement Percentage;
or
(b) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (reduced by the aggregate amount of
Subsequent Recoveries received since the Cut-off Date through the last day
of
the related Due Period) divided by the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Cut-off Date exceeds the applicable percentages set
forth below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
March
2008 through February 2009
|
1.55%,
plus 1/12th
of
1.95% for each month thereafter
|
|
March
2009 through February 2010
|
3.50%,
plus 1/12th
of
1.25% for each month thereafter
|
|
March
2010 through February 2011
|
4.75%,
plus 1/12th
of
1.00% for each month thereafter
|
|
March
2011 through February 2012
|
5.75%,
plus 1/12th
of
0.25% for each month thereafter
|
|
March
2012 and thereafter
|
6.00%
|
“Trust
Administrator”: ▇▇▇▇▇ Fargo Bank, N.A., or any successor in interest, or any
successor trust administrator appointed as herein provided.
“Trust
Fund”: Collectively, all of the assets of REMIC I, REMIC II, REMIC III, REMIC
IV, REMIC V, REMIC VI, the Net WAC Rate Carryover Reserve Account, the Cap
Contract, the Cap Account, the Interest Rate Swap Agreement, the Swap Account
and the other assets conveyed by the Depositor to the Trustee pursuant to
Section 2.01.
“Trust
REMIC”: Any of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V or REMIC
VI.
“Trustee”:
U.S. Bank National Association, a national banking association, or its successor
in interest, or any successor trustee appointed as herein provided.
“Uncertificated
Balance”: The amount of any REMIC Regular Interest (other than REMIC II Regular
Interest II-LTIO) outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Balance of each REMIC Regular Interest (other than
REMIC II Regular Interest II-LTIO) shall equal the amount set forth in the
Preliminary Statement hereto as its initial uncertificated balance. On each
Distribution Date, the Uncertificated Balance of each REMIC Regular Interest
(other than REMIC II Regular Interest II-LTIO) shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.01 and, if and to the extent
necessary and appropriate, shall be further reduced on such Distribution Date
by
Realized Losses as provided in Section 4.04. The Uncertificated Balance of
REMIC II Regular Interest II-LTZZ shall be increased by interest deferrals
as
provided in Section 4.01(a)(1). The Uncertificated Balance of each REMIC
Regular Interest (other than REMIC II Regular Interest II-LTIO) shall never
be
less than zero. With respect to the Class CE Interest as of any date of
determination, an amount equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests over (B)
the
then aggregate Certificate Principal Balances of the Class A Certificates,
Mezzanine Certificates and the Class P Interest then outstanding.
“Uncertificated
Interest”: With respect to any REMIC Regular Interest for any Distribution Date,
one month’s interest at the REMIC Remittance Rate applicable to such REMIC
Regular Interest for such Distribution Date, accrued on the Uncertificated
Balance or Uncertificated Notional Amount thereof immediately prior to such
Distribution Date. Uncertificated Interest in respect of any REMIC I Regular
Interest shall accrue on the basis of a 360-day year consisting of twelve 30-day
months. Uncertificated Interest with respect to each Distribution Date, as
to
any REMIC Regular Interest, shall be reduced by an amount equal to the sum
of
(a) the aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date to the extent not covered by Compensating Interest and (b) the aggregate
amount of any Relief Act Interest Shortfall, if any allocated, in each case,
to
such REMIC Regular Interest pursuant to Section 1.02. In addition,
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
Regular Interest shall be reduced by Realized Losses, if any, allocated to
such
REMIC Regular Interest pursuant to Section 1.02 and
Section 4.04.
“Uncertificated
Notional Amount”: With respect to REMIC II Regular Interest II-LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC I Regular Interests ending with the designation “A” listed below:
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
1
|
I-1-A
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through I-43-A
|
|
10
|
I-10-A
through I-43-A
|
|
11
|
I-11-A
through I-43-A
|
|
12
|
I-12-A
through I-43-A
|
|
13
|
I-13-A
through I-43-A
|
|
14
|
I-14-A
through I-43-A
|
|
15
|
I-15-A
through I-43-A
|
|
16
|
I-16-A
through I-43-A
|
|
17
|
I-17-A
through I-43-A
|
|
18
|
I-18-A
through I-43-A
|
|
19
|
I-19-A
through I-43-A
|
|
20
|
I-20-A
through I-43-A
|
|
21
|
I-21-A
through I-43-A
|
|
22
|
I-22-A
through I-43-A
|
|
23
|
I-23-A
through I-43-A
|
|
24
|
I-24-A
through I-43-A
|
|
25
|
I-25-A
through I-43-A
|
|
26
|
I-26-A
through I-43-A
|
|
27
|
I-27-A
through I-43-A
|
|
28
|
I-28-A
through I-43-A
|
|
29
|
I-29-A
through I-43-A
|
|
30
|
I-30-A
through I-43-A
|
|
31
|
I-31-A
through I-43-A
|
|
32
|
I-32-A
through I-43-A
|
|
33
|
I-33-A
through I-43-A
|
|
34
|
I-34-A
through I-43-A
|
|
35
|
I-35-A
through I-43-A
|
|
36
|
I-36-A
through I-43-A
|
|
37
|
I-37-A
through I-43-A
|
|
38
|
I-38-A
through I-43-A
|
|
39
|
I-39-A
through I-43-A
|
|
40
|
I-40-A
through I-43-A
|
|
41
|
I-41-A
through I-43-A
|
|
42
|
I-42-A
and I-43-A
|
|
43
|
I-43-A
|
|
thereafter
|
$0.00
|
With
respect to the SWAP-IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC II Regular Interest
II-LTIO.
“Uninsured
Cause”: Any cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the hazard insurance
policies required to be maintained pursuant to Section 3.14.
“United
States Person”: A citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of,
the
United States, any state thereof or, the District of Columbia (except, in the
case of a partnership, to the extent provided in regulations) provided that,
for
purposes solely of the restrictions on the transfer of Class R Certificates,
no
partnership or other entity treated as a partnership for United States federal
income tax purposes shall be treated as a United States Person unless all
persons that own an interest in such partnership either directly or through
any
entity that is not a corporation for United States federal income tax purposes
are required by the applicable operative agreement to be United States Persons
or an estate whose income is subject to United States federal income tax
regardless of its source, or a trust if a court within the United States is
able
to exercise primary supervision over the administration of the trust and one
or
more United States persons have the authority to control all substantial
decisions of the trust. To the extent prescribed in regulations by the Secretary
of the Treasury, a trust which was in existence on August 20, 1996 (other than
a
trust treated as owned by the grantor under subpart E of part I of subchapter
J
of chapter 1 of the Code), and which was treated as a United States person
on
August 20, 1996 may elect to continue to be treated as a United States person
notwithstanding the previous sentence. The term “United States” shall have the
meaning set forth in Section 7701 of the Code.
“Unpaid
Interest Shortfall Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and (i) the first Distribution Date, zero, and (ii)
any
Distribution Date after the first Distribution Date, the amount, if any, by
which (a) the sum of (1) the Monthly Interest Distributable Amount for such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such Class
in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not paid
on
the Certificates of such Class on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate for such Class for the related
Accrual Period.
“Value”:
With respect to any Mortgage Loan, and the related Mortgaged Property, the
lesser of:
|
(1)
|
the
value thereof as determined by an appraisal made for the originator
of the
Mortgage Loan at the time of origination of the Mortgage Loan by
an
appraiser who met the minimum requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇
Mac;
and
|
|
(2)
|
the
purchase price paid for the related Mortgaged Property by the Mortgagor
with the proceeds of the Mortgage Loan; provided, however, that in
the
case of a refinanced Mortgage Loan (which is a Mortgage Loan the
proceeds
of which were not used to purchase the related Mortgaged
Property).
|
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. With respect to any date of determination, 98%
of
all Voting Rights will be allocated among the holders of the Class A
Certificates, the Mezzanine Certificates and the Class CE Certificates in
proportion to the then outstanding Certificate Principal Balances of their
respective Certificates, 1% of all Voting Rights will be allocated to the
holders of the Class P Certificates and 1% of all Voting Rights will be
allocated among the holders of the Residual Certificates. The Voting Rights
allocated to each Class of Certificate shall be allocated among Holders of
each
such Class in accordance with their respective Percentage Interests as of the
most recent Record Date. Notwithstanding the foregoing, to the extent that
the
Servicer or any of its Affiliates is a beneficial owner of any Certificates,
the
Percentage Interest in such Certificates held by the Servicer or its Affiliate
shall not be entitled to any Voting Rights.
SECTION
1.02. Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of the Monthly Interest Distributable Amount
for the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates for any Distribution Date, (1) the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by Compensating
Interest payments by the Servicer or the Master Servicer) and any Relief Act
Interest Shortfall incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to the Class CE Certificates based
on, and to the extent of, one month’s interest at the then applicable respective
Pass-Through Rate on the respective Notional Amount of each such Certificate
and, thereafter, among the Class A Certificates and the Mezzanine Certificates
on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate and (2) the aggregate amount of any Realized Losses and
Net WAC Rate Carryover Amounts incurred for any Distribution Date shall be
allocated to the Class CE Certificates based on, and to the extent of, one
month’s interest at the then applicable respective Pass-Through Rate on the
respective Notional Amount of each such Certificate.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
I
Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to REMIC
I
Regular Interest I and to the REMIC I Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Balances of each
such
REMIC I Regular Interest, and then, to REMIC I Regular Interests ending with
the
designation “A”, pro rata based on, and to the extent of, one month’s interest
at the then applicable respective REMIC I Remittance Rates on the respective
Uncertificated Balances of each such REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
II
Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans for any Distribution Date shall be allocated
among REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTA1,
REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3, REMIC
II
Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest II-LTM6,
REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC
II
Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC II Regular
Interest II-LTM11, REMIC II Regular Interest II-LTM12 and REMIC II Regular
Interest II-LTZZ, pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC II Remittance Rates on the respective Uncertificated Balances of each
such
REMIC II Regular Interest.
SECTION
1.03. Rights
of
the NIMS Insurer.
Each
of
the rights of the NIMS Insurer set forth in this Agreement shall exist so long
as (i) the NIMS Insurer has undertaken to guarantee certain payments of notes
issued pursuant to the Indenture and (ii) the notes issued pursuant to the
Indenture remain outstanding or the NIMS Insurer is owed amounts in respect
of
its guarantee of payment on such notes; provided, however, the NIMS Insurer
shall not have any rights hereunder (except pursuant to Section 11.01 and
any rights to indemnification hereunder in the case of clause (ii) below) so
long as (i) the NIMS Insurer has not undertaken to guarantee certain payments
of
notes issued pursuant to the Indenture or (ii) any default has occurred and
is
continuing under the insurance policy issued by the NIMS Insurer with respect
to
such notes.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of the Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse,
for the benefit of the Certificateholders, all the right, title and interest
of
the Depositor, including any security interest therein for the benefit of the
Depositor, in and to the Mortgage Loans identified on the Mortgage Loan
Schedule, the rights of the Depositor under the Originator Master Agreement
(as
assigned to the Depositor pursuant to the Assignment Agreement), the Interest
Rate Swap Agreement, the Swap Account, the Cap Contract, the Cap Account and
all
other assets included or to be included in REMIC I. Such assignment includes
all
interest and principal received by the Depositor or the Servicer on or with
respect to the Mortgage Loans (other than payments of principal and interest
due
on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith
delivers to the Trustee an execution copy of the Originator Master
Agreement.
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, the Trustee (or the Custodian on behalf of the Trustee),
with respect the related Mortgage Loans, the following documents or instruments
with respect to each Mortgage Loan so transferred and assigned (a “Mortgage
File”):
(i) the
original Mortgage Note, endorsed in blank or in the following form: “Pay to the
order of U.S. Bank National Association, as Trustee under the applicable
agreement, without recourse,” with all prior and intervening endorsements
showing a complete chain of endorsement from the Originator to the Person so
endorsing to the Trustee;
(ii) the
original Mortgage, noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is
a MOM Loan, with evidence of recording thereon, and the original recorded power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon;
(iii) unless
the Mortgage Loan is registered on the MERS® System, an original Assignment in
blank;
(iv) the
original recorded Assignment or Assignments showing a complete chain of
assignment from the Originator to the Person assigning the Mortgage to the
Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and
noting the presence of the MIN) as contemplated by the immediately preceding
clause (iii);
(v) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any; and
(vi) the
original lender’s title insurance policy, together with all endorsements or
riders that were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first or second lien on the Mortgaged
Property represented therein as a fee interest vested in the Mortgagor, or
in
the event such original title policy is unavailable, a written commitment or
uniform binder or preliminary report of title issued by the title insurance
or
escrow company.
If
any
original Mortgage Note referred to in Section 2.01(i) above cannot be
located, the obligations of the Depositor to deliver such documents shall be
deemed to be satisfied upon delivery to the Trustee (or the Custodian on behalf
of the Trustee) of a photocopy of such Mortgage Note, if available, with a
lost
note affidavit substantially in the form of Exhibit I attached hereto. If any
of
the original Mortgage Notes for which a lost note affidavit was delivered to
the
Trustee (or the Custodian on behalf of the Trustee) with respect to the related
Mortgage Files, is subsequently located, such original Mortgage Note shall
be
delivered to the Trustee (or the Custodian on behalf of the Trusete) within
three Business Days.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage
or on a properly recorded assignment of the Mortgage as the mortgagee of record,
the Trustee (upon receipt of notice from the Custodian) shall promptly (within
sixty Business Days following the later of the Closing Date and the date of
receipt by such party of the recording information for a Mortgage, but in no
event later than ninety days following the Closing Date) enforce the obligations
of the Originator pursuant to the terms of the Originator Master Agreement
to
submit or cause to be submitted for recording, at no expense to the Trust Fund,
the Trust Administrator, the Trustee, the Custodian, the Servicer, the Master
Servicer or the Depositor, in the appropriate public office for real property
records, each Assignment referred to in Sections 2.01(iii) and (iv) above
and in connection therewith, the Trustee shall enforce the obligation of the
Originator pursuant to the terms of the Originator Master Agreement to execute
each original Assignment in the following form: “U.S. Bank National Association,
as Trustee under the applicable agreement.” In the event that any such
Assignment is lost or returned unrecorded because of a defect therein, the
Trustee (upon receipt of notice from the Custodian) shall enforce the obligation
of the Originator
pursuant to the terms of the Originator Master Agreement to
promptly prepare or cause to be prepared a substitute Assignment or cure or
cause to be cured such defect, as the case may be, and thereafter cause each
such Assignment to be duly recorded.
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Depositor further agrees that it will cause, within 30 Business
Days
after the Closing Date, the MERS® System to indicate that such Mortgage Loans
have been assigned by the Depositor to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files (a) the code in the field which identifies
the
specific Trustee and (b) the code in the field “Pool Field” which identifies the
series of the Certificates issued in connection with such Mortgage Loans. The
Depositor further agrees that it will not, and will not permit the Servicer
to,
and the Servicer agrees that it will not, alter the codes referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance wit the terms
of this Agreement.
If
any of
the documents referred to in Sections 2.01(ii), (iii) or (iv) has, as of
the Closing Date, been submitted for recording but either (x) has not been
returned from the applicable public recording office or (y) has been lost or
such public recording office has retained the original of such document, the
obligations of the Depositor to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee (or the Custodian on behalf of the
Trustee) of a copy of each such document certified by the related Originator
or
the Seller in the case of (x) above or the applicable public recording office
in
the case of (y) above to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the Originator,
delivery to the Trustee (or the Custodian on behalf of the Trustee) promptly
upon receipt thereof of either the original or a copy of such document certified
by the applicable public recording office to be a true and complete copy of
the
original.
If
the
original lender’s title insurance policy was not delivered pursuant to
Section 2.01(vi) above, the Depositor shall deliver or cause to be
delivered to the Trustee (or the Custodian on behalf of the Trustee) promptly
after receipt thereof, the original lender’s title insurance policy with a copy
thereof to the Servicer. The Depositor shall deliver or cause to be delivered
to
the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt
thereof any other original documents constituting a part of a Mortgage File
received with respect to any Mortgage Loan, including, but not limited to,
any
original documents evidencing an assumption or modification of any Mortgage
Loan
with a copy thereof to the Servicer.
The
Depositor shall deliver or cause the Seller, the Originator, the Trustee or
the
Custodian to deliver to the Servicer copies of all trailing documents required
to be included in the servicing file at the same time the originals or certified
copies thereof are delivered to the Trustee (or the Custodian on behalf of
the
Trustee), such documents including but not limited to the mortgagee policy
of
title insurance and any mortgage loan documents upon return from the recording
office. The Servicer shall not be responsible for any custodian fees or other
costs incurring in obtaining such documents and the Depositor shall cause the
Servicer to be reimbursed for any such costs it may incur in connection with
performing its obligations under this Agreement. Subject to Section 6.03(a),
the
Servicer shall have no liability as a result of an inability to service any
Mortgage Loan due to its failure to receive any documents missing from the
Mortgage File or servicing file.
All
original documents relating to the Mortgage Loans that are not delivered to
the
Trustee (or the Custodian on behalf of the Trustee) are and shall be held by
or
on behalf of the Originator, the Seller, the Depositor, the Servicer or the
Master Servicer, as the case may be, in trust for the benefit of the Trustee
on
behalf of the Certificateholders. In the event that any such original document
is required pursuant to the terms of this Section 2.01 to be a part of a
Mortgage File, such document shall be delivered promptly to the Trustee (or
the
Custodian on behalf of the Trustee). Any such original document delivered to
or
held by the Depositor that is not required pursuant to the terms of this
Section to be a part of a Mortgage File, shall be delivered promptly to the
Servicer.
The
Depositor and the Trustee hereto understand and agree that it is not intended
that any Mortgage Loan be included in the Trust that is a “High-Cost Home Loan”
as defined by the Homeownership and Equity Protection Act of 1994 or any other
applicable predatory or abusive lending laws.
The
Depositor hereby directs the Trust
Administrator to
execute, deliver and perform its obligations under the Interest Rate Swap
Agreement and the Cap Contract. The Seller, the Depositor, the Servicer and
the
Holders of the Class A Certificates and the Mezzanine Certificates by their
acceptance of such Certificates acknowledge and agree that the Trust
Administrator shall execute, deliver and perform its obligations under the
Interest Rate Swap Agreement and the Cap Contract and shall do so solely in
its
capacity as Trust Administrator, and not in its individual capacity. Every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trust Administrator shall apply to the Trust
Administrator’s execution of the Interest Rate Swap Agreement and the Cap
Contract, and the performance of its duties and satisfaction of its obligations
thereunder.
SECTION
2.02. Acceptance
of REMIC I by Trustee.
The
Trustee acknowledges receipt (or receipt by the Custodian on behalf of the
Trustee), subject to the provisions of Section 2.01 and subject to any
exceptions noted on the exception report described in the next paragraph below,
of the documents referred to in Section 2.01 (other than such documents
described in Section 2.01(v)) above and all other assets included in the
definition of “REMIC I” under clauses (i), (iii), (iv) and (v) (to the extent of
amounts deposited into the Distribution Account) and declares that it holds
and
will hold such documents and the other documents delivered to it constituting
a
Mortgage File, and that it holds or will hold all such assets and such other
assets included in the definition of “REMIC I” in trust for the exclusive use
and benefit of all present and future Certificateholders.
The
Trustee (or the Custodian on behalf of the Trustee) agrees, for the benefit
of
the Certificateholders and the NIMS Insurer, to review the Mortgage Files held
by such party and, to certify on the Closing Date (in substantially the form
of
the Initial Certification attached to the Custodial Agreement) that, as to
each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan
paid in full or any Mortgage Loan specifically identified in the exception
report annexed thereto as not being covered by such certification), (i) all
documents constituting part of such Mortgage File (other than such documents
described in Section 2.01(v)) required to be delivered to it pursuant to
this Agreement are in its possession, (ii) such documents have been reviewed
by
it and appear regular on their face and relate to such Mortgage Loan and (iii)
based on its examination and only as to the foregoing, the information set
forth
in the Mortgage Loan Schedule that corresponds to items (i), (iii), (xi), (xii),
(xv) and (xviii) of the definition of “Mortgage Loan Schedule” accurately
reflects information set forth in the Mortgage File. It is herein acknowledged
that, in conducting such review, the Trustee (or the Custodian on behalf of
the
Trustee) is under no duty or obligation (i) to inspect, review or examine any
such documents, instruments, certificates or other papers to determine whether
they are genuine, enforceable, or appropriate for the represented purpose or
whether they have actually been recorded or that they are other than what they
purport to be on their face or (ii) to determine whether any Mortgage File
should include any of the documents specified in clause (v) of
Section 2.01.
Prior
to
the first anniversary date of this Agreement, the Trustee shall deliver (or
cause the Custodian to deliver) to the Depositor, the NIMS Insurer, the Trustee,
the Servicer and the Master Servicer a final certification (in substantially
the
form of th Final Certification attached to the Custodial Agreement) evidencing
the completeness of such Mortgage Files, with any applicable exceptions noted
thereon and the Servicer shall forward a copy thereof to any
Sub-Servicer.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the case
may
be, the certifications referred to above, the Trustee (or the Custodian on
behalf of the Trustee) finds any document or documents constituting a part
of a
Mortgage File to be missing or defective in any material respect, at the
conclusion of its review, the Trustee (or the Custodian on behalf of the
Trustee) shall so notify the Depositor, the NIMS Insurer, the Trustee, the
Servicer and the Master Servicer. In addition, upon the discovery by the
Depositor, the NIMS Insurer, the Servicer or the Master Servicer of a breach
of
any of the representations and warranties made by the Originator in the
Originator Master Agreement or the Seller in the Assignment
Agreement,
in
respect of any Mortgage Loan which materially adversely affects such Mortgage
Loan or the interests of the related Certificateholders in such Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties.
The
Trustee shall (or shall cause the Custodian on behalf of the Trustee) provide,
at the written request and expense of any Certificateholder, a written report
to
the Trust Administrator for forwarding to such Certificateholder of all related
Mortgage Files released to the Servicer for servicing purposes.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee in trust for the
benefit of the Certificateholders and that such property not be part of the
Depositor’s estate or property of the Depositor in the event of any insolvency
by the Depositor. In the event that such conveyance is deemed to be, or to
be
made as security for, a loan, the parties intend that the Depositor shall be
deemed to have granted and does hereby grant to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in and to the Mortgage Loans, the related Mortgage Notes and the related
documents, and that this Agreement shall constitute a security agreement under
applicable law.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of the Mortgage Files and other documentation pursuant to Section
2.01, 2.02 and 2.03 and preparation and delivery of the certifications required
under such sections shall be performed by the Custodian pursuant to the terms
and conditions of the Custodial Agreement.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans by the Originator or the Seller.
(a) Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File or of the breach by the Originator
or the Seller of any representation, warranty or covenant under the Originator
Master Agreement or the Assignment Agreement, as applicable, (including any
representation, warranty or covenant regarding the Prepayment Charge Schedule)
in respect of any Mortgage Loan that materially adversely affects the value
of
such Mortgage Loan or the interest therein of the Certificateholders, the Trust
Administrator shall
promptly notify the Originator, the NIMS Insurer, the Seller, the Servicer,
the
Trustee and the Master Servicer of such defect, missing document or breach
and
request that the Originator or the Seller, as applicable, deliver such missing
document or cure such defect or breach within 90 days from the date the
Originator or the Seller, as applicable, was notified of such missing document,
defect or breach, and if the Originator or the Seller, as applicable, does
not
deliver such missing
document or cure such defect or breach in all material respects during such
period, the Trustee, upon receipt of written notice of such failure from the
Trust Administrator or the Servicer, shall enforce the obligations of the
Originator or the Seller, as applicable, under the Originator Master Agreement
or the Assignment Agreement, as applicable, to repurchase such Mortgage Loan
from REMIC I at the Purchase Price. The Purchase Price for the repurchased
Mortgage Loan shall be remitted to the Servicer for deposit into the Collection
Account and the Trustee (or the Custodian on behalf of the Trustee) upon receipt
of written notice from the Servicer of such deposit, shall release to the
Originator or the Seller, as applicable, the related Mortgage File and such
party shall execute and deliver such instruments of transfer or assignment,
in
each case without recourse, as the Originator or the Seller, as applicable,
shall furnish to it and as shall be necessary to vest in the Originator or
the
Seller, as applicable, any Mortgage Loan released pursuant hereto. In
furtherance of the foregoing, if the Originator or the Seller, as applicable,
is
not a member of MERS and repurchases a Mortgage Loan which is registered on
the
MERS® System, the Originator or the Seller, as applicable, at its own expense
and without any right of reimbursement, shall cause MERS to execute and deliver
an assignment of the Mortgage in recordable form to transfer the Mortgage from
MERS to the Originator or the Seller, as applicable, and shall cause such
Mortgage to be removed from registration on the MERS® System in accordance with
MERS’ rules and regulations. The Trust Administrator, the Trustee or the
Custodian, as applicable shall not have any further responsibility with regard
to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as
provided above, if so provided in the Originator Master Agreement or the
Assignment Agreement, the Originator or the Seller, as applicable, may cause
such Mortgage Loan to be removed from REMIC I (in which case it shall become
a
Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage
Loans in the manner and subject to the limitations set forth in
Section 2.03(b); provided, however, the Originator or the Seller, as
applicable, may not substitute a Qualified Substitute Mortgage Loan for any
Deleted Mortgage Loan that violates any predatory or abusive lending law. It
is
understood and agreed that the obligation of the Originator or the Seller,
as
applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan
as
to which a document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing shall
constitute the sole remedy respecting such omission, defect or breach available
to the Trustee and the Certificateholders.
(b) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) must be effected prior to the date which
is two years after the Startup Day for REMIC I.
As
to any
Deleted Mortgage Loan for which the Originator or the Seller, as applicable,
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by the Originator or the Seller, as applicable, delivering
to
the Trustee (or the Custodian on behalf of the Trustee) for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
Assignment in blank or to the Trustee, and such other documents and agreements,
with all necessary endorsements thereon, as are required by Section 2.01,
together with an Officers’ Certificate providing that each such Qualified
Substitute Mortgage Loan satisfies the definition thereof and specifying the
Substitution Adjustment Amount (as described below), if any, in connection
with
such substitution. The Trustee (or the Custodian on behalf of the Trustee)
shall
acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and,
within ten Business Days thereafter, review such documents as specified in
Section 2.02 and deliver to the Depositor, the NIMS Insurer, the Servicer
and the Master Servicer, with respect to such Qualified Substitute Mortgage
Loan
or Loans, a certification (in substantially the form of the Initial
Certification attached to the Custodial Agreement), with any applicable
exceptions noted thereon. Within one year of the date of substitution, the
Trustee (or the Custodian on behalf of the Trustee) shall deliver to the
Depositor, the NIMS Insurer, the Servicer and the Master Servicer a
certification (in substantially the form of the Final Certification attached
to
the Custodial Agreement) with respect to such Qualified Substitute Mortgage
Loan
or Loans, with any applicable exceptions noted thereon. Monthly Payments due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
are not part of REMIC I and will be retained by the Originator or the Seller,
as
applicable. For the month of substitution, distributions to Certificateholders
will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before
the Due Date in the month of substitution, and the Originator or the Seller,
as
applicable, shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Mortgage Loan. The Depositor shall give
or
cause to be given written notice to the Certificateholders and the NIMS Insurer
that such substitution has taken place, shall amend the Mortgage Loan Schedule
to reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage Loan or
Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the
Master Servicer, the Trust Administrator, the Custodian, the Servicer and the
NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan
or
Loans shall constitute part of the Mortgage Pool and shall be subject in all
respects to the terms of this Agreement, the Originator Master Agreement and
the
Assignment Agreement, as applicable, including, all applicable representations
and warranties thereof included in the Originator Master Agreement and the
Assignment Agreement.
For
any
month in which the Originator or the Seller, as applicable, substitutes one
or
more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Servicer will determine the amount (the “Substitution Adjustment Amount”),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage
Loans
exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan,
the Stated Principal Balance thereof as of the date of substitution, together
with one month’s interest on such Stated Principal Balance at the applicable Net
Mortgage Rate, plus all outstanding Advances and Servicing Advances (including
Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto.
On the date of such substitution, the Originator or the Seller, as applicable,
will deliver or cause to be delivered to the Servicer for deposit in the
Collection Account an amount equal to the Substitution Adjustment Amount, if
any, and the Trustee (or the Custodian on behalf of the Trustee) upon receipt
of
the related Qualified Substitute Mortgage Loan or Loans and written notice
by
the Servicer of such deposit, shall release to the Originator or the Seller,
as
applicable, the related Mortgage File or Files and the
Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, to the Originator or the Seller, as applicable, as shall
be
necessary to vest therein any Deleted Mortgage Loan released pursuant
hereto.
In
addition, the Originator or the Seller, as applicable, shall obtain at its
own
expense and deliver to the Trustee, the Trust Administrator and the NIMS Insurer
an Opinion of Counsel to the effect that such substitution will not cause (a)
any federal tax to be imposed on any Trust REMIC, including without limitation,
any federal tax imposed on “prohibited transactions” under
Section 860F(a)(1) of the Code or on “contributions after the startup date”
under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Upon
discovery by the Depositor, the NIMS Insurer, an Originator, the Seller, the
Master Servicer or the Trust Administrator that any Mortgage Loan does not
constitute a “qualified mortgage” within the meaning of Section 860G(a)(3)
of the Code, the party discovering such fact shall within two Business Days
give
written notice thereof to the other parties hereto and the Trust Administrator
shall give written notice to the Originator and the Seller. In connection
therewith, the Originator or the Seller shall repurchase or, subject to the
limitations set forth in Section 2.03(b), substitute one or more Qualified
Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of
the
earlier of discovery or receipt of such notice with respect to such affected
Mortgage Loan. Such repurchase or substitution shall be made by (i) the
Originator or the Seller, as the case may be, if the affected Mortgage Loan’s
status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Originator or the Seller,
as
the case may be, under the Originator Master Agreement or the Assignment
Agreement, as applicable, or (ii) the Seller, if the affected Mortgage Loan’s
status as a non-qualified mortgage is a breach of no representation or warranty.
Any such repurchase or substitution shall be made in the same manner as set
forth in Section 2.03(a). The Trustee shall reconvey to the Originator or
the Seller, as the case may be, the Mortgage Loan to be released pursuant hereto
in the same manner, and on the same terms and conditions, as it would a Mortgage
Loan repurchased for breach of a representation or warranty.
SECTION
2.04. Reserved.
SECTION
2.05. Representations,
Warranties and Covenants of the Servicer and the Master Servicer.
(a) The
Servicer hereby represents, warrants and covenants to the Trustee and the Trust
Administrator, for the benefit of each of the Trustee, the Trust Administrator
and the Certificateholders, and to the Depositor that as of the Closing Date
or
as of such date specifically provided herein:
(1) The
Servicer is a limited liability company duly organized and validly existing
under the laws of the State of Delaware and is duly authorized and qualified
to
transact any and all business contemplated by this Agreement to be conducted
by
the Servicer in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification and,
in
any event, is in compliance with the doing business laws of any such State,
to
the extent necessary to ensure its ability to enforce each Mortgage Loan and
to
service the Mortgage Loans in accordance with the terms of this
Agreement;
(2) The
Servicer has the full power and authority to conduct its business as presently
conducted by it and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Servicer has
duly authorized the execution, delivery and performance of this Agreement,
has
duly executed and delivered this Agreement, and this Agreement, assuming due
authorization, execution and delivery by the other parties hereto, constitutes
a
legal, valid and binding obligation of the Servicer, enforceable against it
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, reorganization or similar laws affecting the enforcement
of creditors’ rights generally and by general principles of equity;
(3) The
execution and delivery of this Agreement by the Servicer, the servicing of
the
Mortgage Loans by the Servicer hereunder, the consummation by the Servicer
of
any other of the transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business of
the
Servicer and will not (A) result in a breach of any term or provision of the
certificate of formation or limited liability company agreement of the Servicer
or (B) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which the Servicer is a party or by which it may be bound, or
any
statute, order or regulation applicable to the Servicer of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Servicer; and the Servicer is not a party to, bound by, or in breach or
violation of any indenture or other agreement or instrument, or subject to
or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects or, to the Servicer’s knowledge, would in the
future materially and adversely affect, (x) the ability of the Servicer to
perform its obligations under this Agreement or (y) the business, operations,
financial condition, properties or assets of the Servicer taken as a
whole;
(4) The
Servicer is a HUD approved servicer. No event has occurred, including but not
limited to a change in insurance coverage, that would make the Servicer unable
to comply with HUD eligibility requirements or that would require notification
to HUD;
(5) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant made by it and contained in this
Agreement;
(6) No
information, certificate of an officer, statement furnished in writing or report
delivered to the Trustee by the Servicer in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits
to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading (except to the extent that any such information, statement or report
has been corrected or superseded in writing by the Servicer as of the Closing
Date, it being understood (i) that the Servicer has delivered no certificate
of
an officer prior to the Closing Date and (ii) that any representations,
warranties and indemnifications as to the accuracy and completeness of the
Prospectus Supplement made by the Servicer in agreements and Officers’
Certificates delivered by the Servicer on the Closing Date in connection with
the transactions contemplated by this Agreement shall be interpreted such that
the information in the Prospectus Supplement provided by the Servicer is deemed
to correct and/or supersede as of the Closing Date, within the meaning of this
parenthetical, any information, statement or report delivered by the Servicer
to
the Trustee prior to the Closing Date that is inconsistent with the information
in the Prospectus Supplement or that was omitted from such information,
statement or report delivered prior to the Closing Date);
(7) No
litigation is pending against the Servicer that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or the
ability of the Servicer to service the Mortgage Loans or to perform any of
its
other obligations hereunder in accordance with the terms hereof;
(8) There
are
no actions or proceedings against, or investigations known to it of, the
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the
Servicer of its obligations under, or validity or enforceability of, this
Agreement;
(9) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of,
or compliance by the Servicer with, this Agreement or the consummation by it
of
the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
(10) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section 3.01; and
(11) With
respect to each Mortgage Loan, the Servicer has fully and accurately furnished
with respect to the period in which it serviced the Mortgage Loans, and will
continue to fully and accurately furnish, complete information on the related
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company, in accordance with the Fair Credit Reporting Act and its implementing
regulations.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the
Trustee or the Custodian and shall inure to the benefit of the Trustee, the
Depositor and the Certificateholders. Upon discovery by any of the Depositor,
the Servicer, the NIMS Insurer, the Trust Administrator or the Trustee of a
breach of any of the foregoing representations, warranties and covenants which
materially and adversely affects the value of any Mortgage Loan or the interests
therein of the Certificateholders, the party discovering such breach shall
give
prompt written notice (but in no event later than two Business Days following
such discovery) to the Servicer, the NIMS Insurer, the Trust Administrator
and
the Trustee. Notwithstanding the foregoing, within 90 days of the earlier of
discovery by the Servicer or receipt of notice by the Servicer of the breach
of
the representation or covenant of the Servicer set forth in Section 2.05(a)(10)
above which materially and adversely affects the interests of the Holders of
the
Class P Certificates in any Prepayment Charge, the Servicer must pay the amount
of such waived Prepayment Charge, for the benefit of the Holders of the Class
P
Certificates, by depositing such amount into the Collection Account. The
foregoing shall not, however, limit any remedies available to the
Certificateholders, the Depositor, the Trust Administrator or the Trustee on
behalf of the Certificateholders, pursuant to the Originator Master Agreement
respecting a breach of the representations, warranties and covenants of the
Originator made in its capacity as a party to the Originator Master
Agreement.
(b) The
Master Servicer hereby represents, warrants and covenants to the Trustee, for
the benefit of each of the Trustee and the Certificateholders, and to the
Servicer and the Depositor that as of the Closing Date or as of such date
specifically provided herein:
(1) The
Master Servicer is a national banking association duly formed, 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;
(2) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Depositor and the
Trustee, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity;
(3) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a 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 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 a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, the
ability of the Master Servicer to perform its obligations under this
Agreement;
(4) The
Master Servicer or an Affiliate thereof is an approved seller/servicer for
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac in good standing and is a HUD approved mortgagee
pursuant to Section 203 of the National Housing Act;
(5) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
(6) No
litigation is pending 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 perform any of its other obligations
hereunder in accordance with the terms hereof,
(7) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(8) 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 by this Agreement, except for
such
consents, approvals, authorizations or orders, if any, that have been obtained
prior to the Closing Date.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the Trust Administrator, the Trustee or the Custodian, as applicable and shall
inure to the benefit of the Trustee, the Depositor and the Certificateholders.
Upon discovery by any of the Depositor, the Servicer, the Master Servicer,
the
NIMS Insurer or the Trustee of a breach of any of the foregoing representations,
warranties and covenants which materially and adversely affects the value of
any
Mortgage Loan or the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice (but in no event later
than two Business Days following such discovery) to other parties to this
Agreement.
SECTION
2.06. Conveyance
of REMIC Regular Interests and Acceptance of REMIC I, REMIC II, REMIC III,
REMIC IV, REMIC V and REMIC VI by the Trustee; Issuance of
Certificates.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC I for the benefit of the Holders of the
REMIC I Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-I Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC I and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC I Regular Interests and the Class R Certificates (in
respect of the Class R-I Interest). The interests evidenced by the Class R-I
Interest, together with the REMIC I Regular Interests, constitute the entire
beneficial ownership interest in REMIC I.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests (which are uncertificated) for the benefit of the Holders
of
the REMIC II Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-II Interest). The Trustee acknowledges
receipt of the REMIC I Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of the Holders of
the
REMIC II Regular Interests and the Class R Certificates (in respect of the
Class
R-II Interest). The interests evidenced by the Class R-II Interest, together
with the REMIC II Regular Interests, constitute the entire beneficial ownership
interest in REMIC II.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests (which are uncertificated) for the benefit of the Holders
of the REMIC III Regular Interests and the Class R Certificates (in respect
of
the Class R-III Interest). The Trustee acknowledges receipt of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust
for
the exclusive use and benefit of the Holders of the REMIC III Regular Interests
and the Class R Certificates (in respect of the Class R-III Interest). The
interests evidenced by the Class R-III Interest, together with the Regular
Certificates (other than the Class CE Certificates and the Class P
Certificates), the Class CE Interest, the Class P Interest and the SWAP-IO
Interest, constitute the entire beneficial ownership interest in REMIC
III.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
CE Interest (which is uncertificated) for the benefit of the Holders of the
Class CE Certificates and the Class R-X Certificates (in respect of the Class
R-IV Interest). The Trustee acknowledges receipt of the Class CE Interest and
declares that it holds and will hold the same in trust for the exclusive use
and
benefit of the Holders of the Class CE Certificates and the Class R-X
Certificates (in respect of the Class R-IV Interest). The interests evidenced
by
the Class R-IV Interest, together with the Class CE Certificates, constitute
the
entire beneficial ownership interest in REMIC IV.
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
P Interest (which is uncertificated) for the benefit of the Holders of the
Class
P Certificates and the Class R-X Certificates (in respect of the Class R-V
Interest). The Trustee acknowledges receipt of the Class P Interest and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the Holders of the Class P Certificates and the Class R-X Certificates (in
respect of the Class R-V Interest). The interests evidenced by the Class R-V
Interest, together with the Class P Certificates, constitute the entire
beneficial ownership interest in REMIC V.
(f) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
SWAP-IO Interest (which is uncertificated) for the benefit of the Holders of
REMIC VI Regular Interest SWAP -IO and the Class R-X Certificates (in respect
of
the Class R-VI Interest). The Trustee acknowledges receipt of the Class Swap-IO
Interest and declares that it holds and shall hold the same in trust for the
exclusive use and benefit of the Holders of REMIC VI Regular Interest SWAP
-IO
and the Class R-X Certificates (in respect of the Class R-VI Interest). The
interests evidenced by the Class R-VI Interest, together with REMIC VI Regular
Interest SWAP-IO, constitute the entire beneficial ownership interest in REMIC
VI.
SECTION
2.07. Issuance
of Class R Certificates and Class R-X Certificates.
(a) The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and
REMIC II Regular Interests and, concurrently therewith and in exchange therefor,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, the Trustee has executed, authenticated and delivered to or upon
the
order of the Depositor, the Class R Certificates in authorized denominations.
The interests evidenced by the Class R Certificates (in respect of the Class
R-III Interest), together with the REMIC III Certificates, the Class CE
Interest, the Class P Interest and the SWAP-IO Interest, constitute the entire
beneficial ownership interest in REMIC III.
(b) The
Trustee acknowledges the assignment to it of the Class CE Interest, the Class
P
Interest and the Class Swap-IO Interest, concurrently therewith and in exchange
therefor, pursuant to the written request of the Depositor executed by an
officer of the Depositor, the Trustee has executed, authenticated and delivered
to or upon the order of the Depositor, the Class R-X Certificates in authorized
denominations. The interests evidenced by the Class R-X Certificates, together
with the Class CE Certificates, the Class P Certificates and REMIC VI Regular
Interest SWAP-IO constitute the entire beneficial ownership interest in REMIC
IV, REMIC V and REMIC VI.
SECTION
2.08. Purposes
of the Trust.
The
Trust
formed hereunder is a common law trust, the purpose of which is to engage in
the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; provided, however,
that neither the Servicer nor the Trustee shall, under any circumstance, be
permitted to sell any Mortgage Loan hereunder (other than with respect to the
exercise of an optional purchase pursuant to Section 3.16 or a termination
pursuant to Section 9.01); and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
Trust
is hereby authorized to engage in the foregoing activities. Neither the Trustee
nor the Trust Administrator shall cause the Trust to engage in any activity
other than in connection with the foregoing or other than as required or
authorized by the terms of this Agreement while any Certificate is outstanding,
and this Section 2.08 may not be amended, without the consent of the
Certificateholders evidencing 51% or more of the aggregate Voting Rights of
the
Certificates.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
SECTION
3.01. Servicer
to Act as Servicer.
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
Fund and in the best interests of and for the benefit of the Certificateholders
(as determined by the Servicer in its reasonable judgment) in accordance with
the terms of this Agreement and the respective Mortgage Loans and, to the extent
consistent with such terms, in the same manner in which it services and
administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans but without regard
to:
(1) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(2) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(3) the
Servicer’s obligation to make Advances or Servicing Advances; or
(4) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer (a) shall seek to maximize
the timely and complete recovery of principal and interest on the Mortgage
Notes
and (b) shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge
only
under the following circumstances: (i) such waiver is standard and customary
in
servicing similar mortgage loans and such waiver relates to a default or a
reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value
of
such Prepayment Charge and the related Mortgage Loan, (ii) the collection of
such Prepayment Charge would be in violation of applicable laws, (iii) the
amount of the Prepayment Charge set forth on the Prepayment Charge Schedule
is
not consistent with the related Mortgage Note or is otherwise unenforceable
or
(iv) the collection of such Prepayment Charge would be considered “predatory”
pursuant to written guidance published or issued by any applicable federal,
state or local regulatory authority acting in its official capacity and having
jurisdiction over such matters. If a Prepayment Charge is waived as permitted
by
meeting the standard described in clauses (ii), (iii) or (iv) above, then the
Trustee (upon receipt of written notice from the Servicer that such waiver
has
occurred) shall enforce the obligation of the Originator to pay the amount
of
such waived Prepayment Charge to the Trust Administrator for deposit in the
Distribution Account for the benefit of the Holders of the Class P Certificates.
Subject only to the above-described servicing standards and the terms of this
Agreement and of the Mortgage Loans, the Servicer shall have full power and
authority, acting alone or through Sub-Servicers as provided in Section 3.02,
to
do or cause to be done any and all things in connection with such servicing
and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Servicer in its own name or in the name of
a
Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer
believes it appropriate in its best judgment in accordance with the servicing
standards set forth above, to execute and deliver, on behalf of the
Certificateholders and the Trustee, and upon notice to the Trustee, any and
all
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings
or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee and Certificateholders. The Servicer shall service and administer
the Mortgage Loans in accordance with applicable state and federal law and
shall
provide to the Mortgagors any reports required to be provided to them thereby.
The Servicer shall also comply in the performance of this Agreement with all
reasonable rules and requirements of each insurer under any standard hazard
insurance policy. Subject to Section 3.17, within 15 days of the Closing Date,
the Trustee shall execute, at the written request of the Servicer, and furnish
to the Servicer and any Sub-Servicer any special or limited powers of attorney
and other documents necessary or appropriate to enable the Servicer or any
Sub-Servicer to carry out their servicing and administrative duties hereunder
and the Trustee shall not be liable for the actions of the Servicer or any
Sub-Servicers under such powers of attorney.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on
the MERS® System, or cause the removal from the registration of any Mortgage
Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment
and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses incurred in connection with
the
actions described in the preceding sentence or as a result of MERS discontinuing
or becoming unable to continue operations in connection with the MERS® System,
shall be reimbursable to the Servicer by withdrawal from the Collection Account
pursuant to Section 3.11.
Subject
to Section 3.09, in accordance with the standards of the preceding paragraph,
the Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the timely payment of taxes and assessments on the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable
in
the first instance from related collections from the Mortgagors pursuant to
Section 3.09, and further as provided in Section 3.11. Any cost incurred by
the
Servicer or by Sub-Servicers in effecting the timely payment of taxes and
assessments on a Mortgaged Property shall not, for the purpose of calculating
distributions to Certificateholders, be added to the unpaid Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
advances with respect to a Mortgage Loan (except as provided in Section 4.03)
and the Servicer shall not (i) permit any modification with respect to any
Mortgage Loan that would change the Mortgage Rate, reduce or increase the Stated
Principal Balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (unless,
as
provided in Section 3.07, the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term
of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder) and (B) cause any REMIC created hereunder to fail to
qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions after the startup date” under the REMIC
Provisions.
Notwithstanding
anything in this Agreement to the contrary and notwithstanding its ability
to do
so pursuant to the terms of the related Mortgage Note, the Servicer shall not
be
required to enforce any provision in any Mortgage Note the enforcement of which
would violate federal, state or local laws or ordinances designed to discourage
predatory lending practices.
The
Servicer may delegate its responsibilities under this Agreement; provided,
however, that no such delegation shall release the Servicer from the
responsibilities or liabilities arising under this Agreement.
SECTION
3.02. Sub-Servicing
Agreements Between Servicer and Sub-Servicers.
(a) The
Servicer may enter into Sub-Servicing Agreements with Sub-Servicers for the
servicing and administration of the Mortgage Loans; provided, however, that
(i)
each such sub-servicing arrangement and the terms of the related Sub-Servicing
Agreement must provide for the servicing of the Mortgage Loans in a manner
consistent with the servicing arrangement contemplated hereunder and (ii) the
NIMS Insurer shall have consented to such Sub-Servicing Agreement. The Trustee
is hereby authorized to acknowledge, at the request of the Servicer, any
Sub-Servicing Agreement that meets the requirements applicable to Sub-Servicing
Agreements set forth in this Agreement and that is otherwise permitted under
this Agreement.
Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
where the related Mortgaged Properties it is to service are situated, if and
to
the extent required by applicable law to enable the Sub-Servicer to perform
its
obligations hereunder and under the Sub-Servicing Agreement and (ii) a ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇ Mae approved mortgage servicer. Each Sub-Servicing Agreement
must
impose on the Sub-Servicer all applicable requirements conforming to the
provisions set forth in Section 3.08, Section 3.20, Section 3.21 and Section
4.06 and provide for servicing of the Mortgage Loans consistent with the terms
of this Agreement. The Servicer will examine each Sub-Servicing Agreement and
will be familiar with the terms thereof. The terms of any Sub-Servicing
Agreement will not be inconsistent with any of the provisions of this Agreement.
The Servicer and the Sub-Servicers may enter into and make amendments to the
Sub-Servicing Agreements or enter into different forms of Sub-Servicing
Agreements; provided, however, that any such amendments or different forms
shall
be consistent with and not violate the provisions of this Agreement, and that
no
such amendment or different form shall be made or entered into which could
be
reasonably expected to be materially adverse to the interests of the
Certificateholders without the consent of the Holders of Certificates entitled
to at least 66% of the Voting Rights; provided, further, that the consent of
the
Holders of Certificates entitled to at least 66% of the Voting Rights shall
not
be required (i) to cure any ambiguity or defect in a Sub-Servicing Agreement,
(ii) to correct, modify or supplement any provisions of a Sub-Servicing
Agreement, or (iii) to make any other provisions with respect to matters or
questions arising under a Sub-Servicing Agreement, which, in each case, shall
not be inconsistent with the provisions of this Agreement. Any variation without
the consent of the Holders of Certificates entitled to at least 66% of the
Voting Rights from the provisions set forth in Section 3.08 (relating to
insurance or priority requirements of Sub-Servicing Accounts, or credits and
charges to the Sub-Servicing Accounts or the timing and amount of remittances
by
the Sub-Servicers to the Servicer), Section 3.20 or Section 3.21, are
conclusively deemed to be inconsistent with this Agreement and therefore
prohibited. The Servicer shall deliver to the Trustee, the Trust Administrator,
the Master Servicer and the NIMS Insurer copies of all Sub-Servicing Agreements,
and any amendments or modifications thereof, promptly upon the Servicer’s
execution and delivery of such instruments.
(b) As
part
of its servicing activities hereunder, the Servicer, for the benefit of the
Trustee and the Certificateholders, shall enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement, including, without
limitation, any obligation of a Sub-Servicer to make advances in respect of
delinquent payments as required by a Sub-Servicing Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, termination
of
Sub-Servicing Agreements, and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the
Servicer, in its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor only (i) from
a
general recovery resulting from such enforcement, to the extent, if any, that
such recovery exceeds all amounts due in respect of the related Mortgage Loans,
or (ii) from a specific recovery of costs, expenses or attorneys’fees against
the party against whom such enforcement is directed.
SECTION
3.03. Successor
Sub-Servicers.
The
Servicer, with the consent of the NIMS Insurer, shall be entitled to terminate
any Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement. In the event of termination of
any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall be assumed
simultaneously by the Servicer without any act or deed on the part of such
Sub-Servicer or the Servicer, and the Servicer either shall service directly
the
related Mortgage Loans or shall enter into a Sub-Servicing Agreement with a
successor Sub-Servicer which qualifies under Section 3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Master Servicer (if the Master Servicer is acting
as Servicer) without fee, in accordance with the terms of this Agreement, in
the
event that the Servicer (or the Master Servicer, if it is then acting as
Servicer) shall, for any reason, no longer be the Servicer (including
termination due to a Servicer Event of Default).
SECTION
3.04. Liability
of the Servicer.
Notwithstanding
any Sub-Servicing Agreement or the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Sub-Servicer or reference
to actions taken through a Sub-Servicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee and the Certificateholders for
the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability
by
virtue of such Sub-Servicing Agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and under the
same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. The Servicer shall be entitled to enter into any agreement
with a Sub-Servicer for indemnification of the Servicer by such Sub-Servicer
and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
SECTION
3.05. No
Contractual Relationship Between Sub-Servicers and the Trustee, the NIMS Insurer
or Certificateholders.
Any
Sub-Servicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer alone,
and the Trustee, the Master Servicer, the Trust Administrator, the NIMS Insurer
and the Certificateholders shall not be deemed parties thereto and shall have
no
claims, rights, obligations, duties or liabilities with respect to the
Sub-Servicer except as set forth in Section 3.06. The Servicer shall be solely
liable for all fees owed by it to any Sub-Servicer, irrespective of whether
the
Servicer’s compensation pursuant to this Agreement is sufficient to pay such
fees.
SECTION
3.06. Assumption
or Termination of Sub-Servicing Agreements by Master Servicer.
In
the
event the Servicer shall for any reason no longer be the Servicer (including
by
reason of the occurrence of a Servicer Event of Default), the Master Servicer
(or the successor servicer appointed pursuant to Section 7.02) shall thereupon
assume all of the rights and obligations of the Servicer under each
Sub-Servicing Agreement that the Servicer may have entered into, unless the
Master Servicer elects to terminate any Sub-Servicing Agreement in accordance
with its terms as provided in Section 3.03. Upon such assumption, the Master
Servicer (or the successor servicer appointed pursuant to Section 7.02) shall
be
deemed, subject to Section 3.03, to have assumed all of the departing Servicer’s
interest therein and to have replaced the departing Servicer as a party to
each
Sub-Servicing Agreement to the same extent as if each Sub-Servicing Agreement
had been assigned to the assuming party, except that (i) the departing Servicer
shall not thereby be relieved of any liability or obligations under any
Sub-Servicing Agreement that arose before it ceased to be the Servicer and
(ii)
neither the Master Servicer nor any successor servicer shall be deemed to have
assumed any liability or obligation of the Servicer that arose before it ceased
to be the Servicer.
The
Servicer at its expense shall, upon request of the Master Servicer, deliver
to
the assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreements to the assuming party.
SECTION
3.07. Collection
of Certain Mortgage Loan Payments.
The
Servicer shall diligently collect all payments called for under the terms and
provisions of the Mortgage Loans, and shall, to the extent such procedures
shall
be consistent with this Agreement and the terms and provisions of any applicable
insurance policies provided to the Servicer, follow such collection procedures
as it would follow with respect to mortgage loans comparable to the Mortgage
Loans and held for its own account. Consistent with the foregoing, the Servicer
may in its discretion (i) waive any late payment charge or, if applicable,
any
penalty interest, (ii) waive any provisions of any Mortgage Loan requiring
the
related Mortgagor to submit to mandatory arbitration with respect to disputes
arising thereunder or (iii) extend the due dates for the Monthly Payments due
on
a Mortgage Note for a period of not greater than 180 days; provided, however,
that any extension pursuant to clause (ii) above shall not affect the
amortization schedule of any Mortgage Loan for purposes of any computation
hereunder, except as provided below; provided further that the NIMS Insurer’s
prior written consent shall be required for any modification, waiver or
amendment if the aggregate number of outstanding Mortgage Loans which have
been
modified, waived or amended exceeds 5% of the number of Mortgage Loans as of
the
Cut-off Date. In the event of any such arrangement pursuant to clause (iii)
above, the Servicer shall make timely Advances on such Mortgage Loan during
such
extension pursuant to Section 4.03 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangement. Notwithstanding the foregoing, in the event that any Mortgage
Loan
is in default or, in the judgment of the Servicer, such default is reasonably
foreseeable, the Servicer, consistent with the standards set forth in Section
3.01, may also waive, modify or vary any term of such Mortgage Loan (including
modifications that would change the Mortgage Rate, forgive the payment of
principal or interest or extend the final maturity date of such Mortgage Loan),
accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of such Mortgage Loan (such payment,
a
“Short Pay-off”), or consent to the postponement of strict compliance with any
such term or otherwise grant indulgence to any Mortgagor without the prior
written consent of the NIMS Insurer.
SECTION
3.08. Sub-Servicing
Accounts.
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall comply with all
requirements of this Agreement relating to the Collection Account. The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the Servicer for deposit in the Collection Account not later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
SECTION
3.09. Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
The
Servicer shall establish and maintain, or cause to be established and
maintained, one or more accounts (the “Servicing Accounts”), into which all
collections from the Mortgagors (or related advances from Sub-Servicers) for
the
payment of taxes, assessments, hazard insurance premiums and comparable items
for the account of the Mortgagors (“Escrow Payments”) shall be deposited and
retained. Servicing Accounts shall be Eligible Accounts. The Servicer shall
deposit in the clearing account in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Servicer’s receipt thereof, all Escrow Payments collected on account of the
Mortgage Loans and shall thereafter deposit such Escrow Payments in the
Servicing Accounts, in no event more than two Business Days after the receipt
of
such Escrow Payments, all Escrow Payments collected on account of the Mortgage
Loans for the purpose of effecting the timely payment of any such items as
required under the terms of this Agreement. Withdrawals of amounts from a
Servicing Account may be made only to (i) effect payment of taxes, assessments,
hazard insurance premiums, and comparable items in a manner and at a time that
assures that the lien priority of the Mortgage is not jeopardized (or, with
respect to the payment of taxes, in a manner and at a time that avoids the
loss
of the Mortgaged Property due to a tax sale or the foreclosure as a result
of a
tax lien); (ii) reimburse the Servicer (or a Sub-Servicer to the extent provided
in the related Sub-Servicing Agreement) out of related collections for any
advances made pursuant to Section 3.01 (with respect to taxes and assessments)
and Section 3.14 (with respect to hazard insurance); (iii) refund to Mortgagors
any sums as may be determined to be overages; (iv) pay interest, if required
and
as described below, to Mortgagors on balances in the Servicing Account; or
(v)
clear and terminate the Servicing Account at the termination of the Servicer’s
obligations and responsibilities in respect of the Mortgage Loans under this
Agreement in accordance with Article IX. In the event the Servicer shall deposit
in a Servicing Account any amount not required to be deposited therein or any
amount previously deposited therein is unpaid by the related Mortgagor’s banking
institution, it may at any time withdraw such amount from such Servicing
Account, any provision herein to the contrary notwithstanding. As part of its
servicing duties, the Servicer or Sub-Servicers shall pay to the Mortgagors
interest on funds in the Servicing Accounts, to the extent required by law
and,
to the extent that interest earned on funds in the Servicing Accounts is
insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. The Servicer may pay to itself any excess interest
on
funds in the Servicing Accounts, to the extent such action is in conformity
with
the servicing standard set forth in Section 3.01, is permitted by law and such
amounts are not required to be paid to Mortgagors or used for any of the other
purposes set forth above.
SECTION
3.10. Collection
Account.
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (such account or accounts,
the
“Collection Account”), held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deposit
or
cause to be deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one Business
Day after the Servicer’s receipt thereof, and shall thereafter deposit in the
Collection Account, in no event more than two Business Days after the Servicer’s
receipt thereof, as and when received or as otherwise required hereunder, the
following payments and collections received or made by it subsequent to the
Cut-off Date (other than in respect of principal or interest on the Mortgage
Loans due on or before the Cut-off Date), or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to
a
Due Period subsequent thereto:
(1) all
payments on account of principal, including Principal Prepayments (but not
Prepayment Charges), on the Mortgage Loans;
(2) all
payments on account of interest (net of the Servicing Fee and any Prepayment
Interest Excess) on each Mortgage Loan;
(3) all
Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and condemnation
proceeds (other than proceeds collected in respect of any particular REO
Property and amounts paid in connection with a purchase of Mortgage Loans and
REO Properties pursuant to Section 9.01);
(4) any
amounts required to be deposited pursuant to Section 3.12 in connection with
any
losses realized on Permitted Investments with respect to funds held in the
Collection Account;
(5) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(6) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
Section 2.03, Section 3.16(c) or Section 9.01;
(7) all
amounts required to be deposited in connection with Substitution Adjustments
pursuant to Section 2.03; and
(8) all
Prepayment Charges collected by the Servicer in connection with the Principal
Prepayment of any of the Mortgage Loans and any Servicer Prepayment Charge
Payment Amounts.
The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of Servicing Fees, late payment charges,
Prepayment Interest Excess, assumption fees, insufficient funds charges and
ancillary income (other than Prepayment Charges) need not be deposited by the
Servicer in the Collection Account and may be retained by the Servicer as
additional compensation. In the event the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
(b) On
behalf
of the Trust Fund, the Servicer shall deliver to the Trust Administrator in
immediately available funds for deposit in the Distribution Account by 12:00
noon, New York time (i) on the Servicer Remittance Date, that portion of
Available Funds (calculated without regard to the references in clause (ii)
of
the definition thereof to amounts that may be withdrawn from the Distribution
Account) for the related Distribution Date then on deposit in the Collection
Account and the amount of all Prepayment Charges collected by the Servicer
in
connection with the Principal Prepayment of any of the Mortgage Loans and any
Servicer Prepayment Charge Payment Amounts then on deposit in the Collection
Account and the amount of any funds reimbursable to an Advancing Person pursuant
to Section 3.26 (unless such amounts are to be remitted in another manner as
specified in the documentation establishing the related Advance Facility) and
(ii) on each Business Day as of the commencement of which the balance on deposit
in the Collection Account exceeds $100,000 following any withdrawals pursuant
to
the next succeeding sentence, the amount of such excess, but only if the
Collection Account constitutes an Eligible Account solely pursuant to clause
(ii) of the definition of “Eligible Account.” If the balance on deposit in the
Collection Account exceeds $100,000 as of the commencement of business on any
Business Day and the Collection Account constitutes an Eligible Account solely
pursuant to clause (ii) of the definition of “Eligible Account,” the Servicer
shall, by 3:00 p.m. New York time on such Business Day, withdraw from the
Collection Account any and all amounts payable or reimbursable to the Depositor,
the Servicer, the Trustee, the Trust Administrator, the Master Servicer, the
Seller or any Sub-Servicer pursuant to Section 3.11 and shall pay such amounts
to the Persons entitled thereto.
With
respect to any remittance received by the Master Servicer after the day on
which
such payment was due, the Servicer shall pay to the Master Servicer interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted as
of
the date of each change, plus three percentage points, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall be
deposited in the Collection Account by the Servicer on the date such late
payment is made and shall cover the period commencing with the day the day
such
payment was due and ending with the Business Day on which such payment is made,
both inclusive. Such interest shall be remitted along with the distribution
payable on the next succeeding Remittance Date. The payment by the Servicer
of
any such interest shall not be deemed an extension of time for payment or a
waiver of any Sevicer Event of Default.
(c) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. The Servicer shall give written
notice to the Trustee, the Trust Administrator, the Master Servicer and the
NIMS
Insurer of the location of the Collection Account maintained by it when
established and prior to any change thereof.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
to
the Trust Administrator for deposit in an account (which may be the Distribution
Account and must satisfy the standards for the Distribution Account as set
forth
in the definition thereof) and for all purposes of this Agreement shall be
deemed to be a part of the Collection Account; provided, however, that the
Trust
Administrator shall have the sole authority to withdraw any funds held pursuant
to this subsection (d). In the event the Servicer shall deliver to the Trust
Administrator for deposit in the Distribution Account any amount not required
to
be deposited therein, it may at any time request that the Trust Administrator
withdraw such amount from the Distribution Account and remit to it any such
amount, any provision herein to the contrary notwithstanding. In addition,
the
Servicer shall deliver to the Trust Administrator from time to time for deposit,
and the Trust Administrator shall so deposit, in the Distribution
Account:
(1) any
Advances, as required pursuant to Section 4.03;
(2) any
amounts required to be deposited pursuant to Section 3.23(d) or (f) in
connection with any REO Property;
(3) any
amounts to be paid in connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section 9.01; and
(4) any
amounts required to be deposited pursuant to Section 3.24 in connection with
any
Prepayment Interest Shortfall;
(e) The
Servicer shall deposit in the Collection Account any amounts required to be
deposited pursuant to Section 3.12(b) in connection with losses realized on
Permitted Investments with respect to funds held in the Collection
Account.
SECTION
3.11. Withdrawals
from the Collection Account.
The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes, without priority, or as described in Section
4.03:
(1) to
remit
to the Trust Administrator for deposit in the Distribution Account the amounts
required to be so remitted pursuant to Section 3.10(b) or permitted to be so
remitted pursuant to the first sentence of Section 3.10(d);
(2) subject
to Section 3.16(d), to reimburse the Servicer for unreimbursed Advances, but
only to the extent of amounts received which represent Late Collections (net
of
the related Servicing Fees) on Mortgage Loans or REO Properties with respect
to
which such Advances were made in accordance with the provisions of Section
4.03;
(3) subject
to Section 3.16(d), to pay the Servicer or any Sub-Servicer (a) any unpaid
Servicing Fees, (b) any unreimbursed Servicing Advances with respect to each
Mortgage Loan, but only to the extent of any Late Collections, received with
respect to such Mortgage Loan or REO Property and (c) any Nonrecoverable
Servicing Advances with respect to the final liquidation of a Mortgage Loan,
but
only to the extent that Late Collections received with respect to such Mortgage
Loan are insufficient to reimburse the Servicer or any Sub-Servicer for
Servicing Advances;
(4) to
pay to
the Servicer as servicing compensation (in addition to the Servicing Fee) on
the
Servicer Remittance Date any interest or investment income earned on funds
deposited in the Collection Account;
(5) to
pay to
the Servicer, the Originator or the Seller, as the case may be, with respect
to
each Mortgage Loan that has previously been purchased or replaced pursuant
to
Section 2.03 or Section 3.16(c) all amounts received thereon subsequent to
the
date of purchase or substitution, as the case may be;
(6) (a)
to
reimburse the Servicer for any Advance or Servicing Advance previously made
which the Servicer has determined to be a Nonrecoverable Advance or
Nonrecoverable Servicing Advance in accordance with the provisions of Section
4.03 and (b) to pay to the Servicer any unpaid Servicing Fees to the extent
not
recoverable from Late Collections received with respect to the related Mortgage
Loan;
(7) to
reimburse the Servicer, the Master Servicer or the Depositor for expenses
incurred by or reimbursable to the Servicer, the Master Servicer or the
Depositor, as the case may be, pursuant to Section 6.03;
(8) to
reimburse the Servicer, the NIMS Insurer, the Trust Administrator, the Master
Servicer or the Trustee, as the case may be, for expenses reasonably incurred
in
connection with any breach or defect giving rise to the purchase obligation
under Section 2.03 of this Agreement, including any expenses arising out of
the
enforcement of the purchase obligation;
(9) to
pay,
or to reimburse the Servicer for Servicing Advances in respect of, expenses
incurred in connection with any Mortgage Loan pursuant to Section 3.16(b);
(10) to
withdraw amounts deposited therein in error;
(11) to
pay
itself any Prepayment Interest Excess (to the extent not otherwise retained);
and
(12) to
clear
and terminate the Collection Account pursuant to Section 9.01.
The
Servicer shall keep and maintain separate accounting, on a Mortgage
Loan-by-Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account, to the extent held by or on behalf of it, pursuant
to
subclauses (2), (3), (4), (5), (6), (8) and (9) above. The Servicer shall
provide written notification to the Trust Administrator and the NIMS Insurer
on
or prior to the next succeeding Servicer Remittance Date, upon making any
withdrawals from the Collection Account pursuant to subclauses 3(c) and (6)
above; provided that an Officers’ Certificate in the form described under
Section 4.03(d) shall suffice for such written notification to the Trust
Administrator in respect of clause (6) hereof.
SECTION
3.12. Investment
of Funds in the Collection Account.
(a) The
Servicer may direct any depository institution maintaining the Collection
Account and any REO Account (each, for purposes of this Section 3.12, an
“Investment Account”) to invest the funds in such Investment Account in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement, if a Person other than the Trust
Administrator is the obligor thereon or if such investment is managed or advised
by a Person other than the Trust Administrator or an Affiliate of the Trust
Administrator, and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the Trust
Administrator is the obligor thereon or if such investment is managed or advised
by the Trustee or any Affiliate. All such Permitted Investments shall be held
to
maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee (in its capacity as such),
or
in the name of a nominee of the Trustee. The Trust Administrator shall be
entitled to sole possession (except with respect to investment direction of
funds held in the Collection Account or any REO Account and any income and
gain
realized thereon) over each such investment, and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Trust Administrator or its agent, together with any document of transfer
necessary to transfer title to such investment to the Trust Administrator or
its
nominee. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Trust
Administrator shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trust Administrator that such Permitted Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account and any REO Account held by or on behalf of the Servicer
shall be for the benefit of the Servicer and shall be subject to its withdrawal
in accordance with Section 3.11 or Section 3.23, as applicable. The Servicer
shall deposit in the Collection Account and any REO Account, as applicable,
the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of
such
loss.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
may and, subject to Section 8.01 and Section 8.02(a)(v), upon the request of
the
NIMS Insurer or the Holders of Certificates representing more than 50% of the
Voting Rights allocated to any Class of Certificates, shall take such action
as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
SECTION
3.13. [Reserved].
SECTION
3.14. Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity Coverage.
(a) The
Servicer shall cause to be maintained for each Mortgage Loan fire insurance
with
extended coverage on the related Mortgaged Property in an amount which is at
least equal to the least of (i) the current Stated Principal Balance of such
Mortgage Loan (ii) the amount necessary to fully compensate for any damage
or
loss to the improvements that are a part of such property on a replacement
cost
basis and (iii) the maximum insurable value of the improvements which are part
of such Mortgaged Property, in each case in an amount not less than such amount
as is necessary to avoid the application of any coinsurance clause contained
in
the related hazard insurance policy. The Servicer shall also cause to be
maintained fire insurance with extended coverage on each REO Property in an
amount which is at least equal to the least of (i) the maximum insurable value
of the improvements which are a part of such property, (ii) the outstanding
Stated Principal Balance of the related Mortgage Loan at the time it became
an
REO Property and (iii) the maximum insurable value of the improvements which
are
part of such REO Property. The Servicer will comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under
any
such hazard policies. Any amounts to be collected by the Servicer under any
such
policies (other than amounts to be applied to the restoration or repair of
the
property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that the Servicer would follow
in
servicing loans held for its own account, subject to the terms and conditions
of
the related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11, if received in respect
of a Mortgage Loan, or in the REO Account, subject to withdrawal pursuant to
Section 3.23, if received in respect of an REO Property. Any cost incurred
by
the Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid Stated
Principal Balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. It is understood and agreed that no earthquake
or other additional insurance is to be required of any Mortgagor other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
or REO Property is at any time in an area identified in the Federal Register
by
the Federal Emergency Management Agency as having special flood hazards and
flood insurance has been made available, the Servicer will cause to be
maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the least of (i) the unpaid Stated Principal
Balance of the related Mortgage Loan, (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located
is
participating in such program) and (iii) the maximum insurable value of the
improvements which are part of such Mortgaged Property.
In
the
event that the Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy Rating of A:X or better in Best’s Key Rating
Guide (or such other rating that is comparable to such rating) or otherwise
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac insuring against hazard losses on all
of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first two sentences of this Section 3.14, it
being understood and agreed that such policy may contain a deductible clause,
in
which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 3.14, and there shall have been
one
or more losses which would have been covered by such policy, deposit to the
Collection Account from its own funds the amount not otherwise payable under
the
blanket policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy in a timely fashion
in
accordance with the terms of such policy.
(b) The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of the Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac. The Servicer shall provide the Trustee, the Master Servicer, the
Trust Administrator and the NIMS Insurer, upon request, with copies of such
insurance policies and fidelity bond. The Servicer shall also maintain a
fidelity bond in the form and amount that would meet the requirements of ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac, unless the Servicer has obtained a waiver of such
requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall be deemed to
have complied with this provision if an Affiliate of the Servicer has such
errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends
to
the Servicer. Any such errors and omissions policy and fidelity bond shall
by
its terms not be cancelable or materially modifiable without thirty days’ prior
written notice to the Trustee, the Master Servicer and the NIMS Insurer. The
Servicer shall also cause each Sub-Servicer to maintain a policy of insurance
covering errors and omissions and a fidelity bond which would meet such
requirements.
(c) The
Servicer shall provide to the Master Servicer, upon request, evidence of the
authorization of the person signing any certification or statement, copy or
other evidence of any fidelity bond, errors and omissions insurance policy,
financial information and reports, or such other information related to the
Servicer or any Sub-Servicer or to the Servicer’s or such Sub-Servicer’s
performance hereunder.
SECTION
3.15. Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
The
Servicer shall use its commercially reasonable best efforts to enforce any
“due-on-sale” provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about
to
be sold whether by absolute conveyance or by contract of sale, and whether
or
not the Mortgagor remains liable on the Mortgage and the Mortgage Note. When
the
Mortgaged Property has been conveyed by the Mortgagor, the Servicer shall,
to
the extent it has knowledge of such conveyance, exercise its rights to
accelerate the maturity of such Mortgage Loan under the “due-on-sale” clause
applicable thereto; provided, however, that the Servicer shall not exercise
such
rights if prohibited by law from doing so. If the Servicer reasonably believes
it is unable under applicable law to enforce such “due-on-sale” clause, the
Servicer shall enter into (a) an assumption and modification agreement with
the
person to whom such property has been conveyed, pursuant to which such person
becomes liable under the Mortgage Note and the original Mortgagor remains liable
thereon or (b) in the event the Servicer is unable under applicable law to
require that the original Mortgagor remain liable under the Mortgage Note and
the Servicer has the prior consent of the primary mortgage guaranty insurer,
if
any, a substitution of liability agreement with the purchaser of the Mortgaged
Property pursuant to which the original Mortgagor is released from liability
and
the purchaser of the Mortgaged Property is substituted as Mortgagor and becomes
liable under the Mortgage Note. If an assumption fee is collected by the
Servicer for entering into an assumption agreement the fee will be retained
by
the Servicer as additional servicing compensation. In connection with any such
assumption, neither the Mortgage Rate borne by the related Mortgage Note, the
term of the Mortgage Loan, the outstanding principal amount of the Mortgage
Loan
nor any other material terms shall be changed unless such change would be
consistent with accepted servicing practices. To the extent that any Mortgage
Loan is assumable, the Servicer shall inquire diligently into the
credit-worthiness of the proposed transferee, and shall apply such underwriting
standards and follow such practices and procedures as shall be normal and usual
in its general mortgage servicing activities and as it applies to other mortgage
loans owned solely by it. If the credit-worthiness of the proposed transferee
does not meet such underwriting standards, the Servicer diligently shall, to
the
extent permitted by the Mortgage or the Mortgage Note and by applicable law,
accelerate the maturity of the Mortgage Loan.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.15, the term “assumption” is deemed
to also include a sale (of the Mortgaged Property) subject to the Mortgage
that
is not accompanied by an assumption or substitution of liability
agreement.
SECTION
3.16. Realization
Upon Defaulted Mortgage Loans.
(a) The
Servicer shall use its best efforts, consistent with the servicing standards
set
forth in Section 3.01, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments pursuant to Section 3.07. The Servicer shall
be responsible for all costs and expenses incurred by it in any such
proceedings; provided, however, that such costs and expenses will be recoverable
as Servicing Advances by the Servicer as contemplated in Section 3.11 and
Section 3.23. The foregoing is subject to the provision that, in any case in
which a Mortgaged Property shall have suffered damage from an Uninsured Cause,
the Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion that
such restoration will increase the proceeds of liquidation of the related
Mortgage Loan after reimbursement to itself for such expenses. With respect
to
any second lien Mortgage Loan for which the related first lien mortgage loan
is
not included in the Trust Fund, if, after such Mortgage Loan becomes 180 days
or
more delinquent, the Servicer determines that a significant recovery is not
possible through foreclosure, such Mortgage Loan may be charged off and the
Mortgage Loan will be treated as a Liquidated Mortgage Loan giving rise to
a
Realized Loss.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Servicer has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or (ii)
otherwise acquire possession of, or take any other action with respect to,
such
Mortgaged Property, if, as a result of any such action, the Trustee, the Trust
Administrator, the Trust Fund or the Certificateholders would be considered
to
hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or
“operator” of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
from
time to time, or any comparable law, unless the Servicer has also previously
determined, based on its reasonable judgment and a report prepared by a Person
who regularly conducts environmental audits using customary industry standards,
that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
Notwithstanding
the foregoing, if such environmental audit reveals, or if the Servicer has
actual knowledge or notice, that such Mortgaged Property contains such toxic
or
hazardous wastes or substances, the Servicer shall not foreclose or accept
a
deed in lieu of foreclosure without the prior written consent of the NIMS
Insurer.
The
cost
of the environmental audit report contemplated by this Section 3.16 shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(9), such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund;
provided that any amounts disbursed by the Servicer pursuant to this Section
3.16(b) shall constitute Servicing Advances, subject to Section 4.03(d). The
cost of any such compliance, containment, clean-up or remediation shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Sections 3.11(a)(iii) and
(a)(ix), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Collection Account received
in
respect of the affected Mortgage Loan or other Mortgage Loans.
(c) The
Servicer or the NIMS Insurer may, at the option of each, purchase a Mortgage
Loan which has become 90 or more days delinquent or for which the Servicer
has
accepted a deed in lieu of foreclosure; provided, however, that the Servicer
may
only exercise this right on or before the last day of the calendar month in
which such Mortgage Loan became 90 days delinquent (such month, the “Eligible
Repurchase Month”); provided further, that any such Mortgage Loan which becomes
current but thereafter becomes delinquent may be purchased by the Servicer
pursuant to this Section in any ensuing Eligible Repurchase Month. Prior to
purchase pursuant to this Section 3.16(c), the Servicer shall be required to
continue to make Advances pursuant to Section 4.03. The Servicer or the NIMS
Insurer shall not use any procedure in selecting Mortgage Loans to be
repurchased which is materially adverse to the interests of the
Certificateholders. The Servicer or the NIMS Insurer shall purchase such
delinquent Mortgage Loan at a price equal to the Purchase Price of such Mortgage
Loan. Any such purchase of a Mortgage Loan pursuant to this Section 3.16(c)
shall be accomplished by remittance to the Servicer for deposit in the
Collection Account of the amount of the Purchase Price. Notwithstanding the
foregoing, the Servicer or the NIM Insurer shall purchase Mortgage Loans that
are delinquent the greatest number of days before it may purchase any that
are
delinquent any fewer number of days. The Trustee (or the Custodian on behalf
of
the Trustee) shall immediately effectuate the conveyance of such delinquent
Mortgage Loan to the Servicer or the NIMS Insurer, as applicable, to the extent
necessary to vest in the Servicer or the NIMS Insurer, as applicable, title
to
such Mortgage Loan, including the prompt delivery of all documentation to the
Servicer or the NIMS Insurer, as applicable.
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Liquidation
Proceeds or condemnation proceeds, in respect of any Mortgage Loan, will be
applied in the following order of priority: first, to unpaid Servicing Fees;
second, to reimburse the Servicer or any Sub-Servicer for any related
unreimbursed Servicing Advances pursuant to Section 3.11(a)(3) and Advances
pursuant to Section 3.11(a)(2; third, to accrued and unpaid interest on the
Mortgage Loan, to the date of the Final Recovery Determination, or to the Due
Date prior to the Distribution Date on which such amounts are to be distributed
if not in connection with a Final Recovery Determination; and fourth, as a
recovery of principal of the Mortgage Loan. The portion of the recovery so
allocated to unpaid Servicing Fees shall be reimbursed to the Servicer or any
Sub-Servicer pursuant to Section 3.11(a)(3)
SECTION
3.17. Trustee
to Cooperate; Release of Mortgage Files.
(a) Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer shall deliver to the Trustee (or the Custodian
on
its behalf), in written (with two executed copies) or electronic format, a
Request for Release in the form of Exhibit E hereto (which certification shall
include a statement to the effect that all amounts received or to be received
in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.10 have been or will be so deposited)
signed by a Servicing Officer (or in a mutually agreeable electronic format
that
will, in lieu of a signature on its face, originate from a Servicing Officer)
and shall request delivery to it of the Mortgage File. Upon receipt of such
certification and request, the Trustee (or the Custodian on behalf of the
Trustee) shall (pursuant
to the terms of the Custodial Agreement),
within
three Business Days, release and send by overnight mail, the related Mortgage
File to the Servicer and the Servicer is authorized to cause the removal from
the registration on the MERS® System of any such Mortgage Loan, if applicable.
The Trustee agrees to indemnify the Servicer, out of its own funds, for any
loss, liability or expense (other than special, indirect, punitive or
consequential damages which will not be paid by the Trustee) incurred by the
Servicer as a proximate result of the Trustee’s breach of its obligations
pursuant to this Section 3.17. Except as otherwise provided herein, no expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account or the Distribution
Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Trustee (or the Custodian on behalf of
the
Trustee) shall (pursuant to the terms of the Custodial Agreement), upon any
request made by or on behalf of the Servicer and delivery to the Trustee (or
the
Custodian on behalf of the Trustee), in written or electronic format, of a
Request for Release in the form of Exhibit E hereto signed by a Servicing
Officer (or in a mutually agreeable electronic format that will, in lieu of
a
signature on its face, originate from a Servicing Officer), release the related
Mortgage File within three Business Days to the Servicer, and shall, at the
direction of the Servicer, execute such documents as shall be necessary to
the
prosecution of any such proceedings. Such Request for Release shall obligate
the
Servicer to return each and every document previously requested from the
Mortgage File to the Custodian when the need therefor by the Servicer no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Collection
Account or the Mortgage File or such document has been delivered to an attorney,
or to a public trustee or other public official as required by law, for purposes
of initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Servicer
has delivered, or caused to be delivered, to the Trustee (or the Custodian
on
behalf of the Trustee) an additional Request for Release certifying as to such
liquidation or action or proceedings. Upon the request of the Trustee (or the
Custodian on behalf of the Trustee), the Servicer shall provide notice to the
Trustee (or the Custodian on behalf of the Trustee) of the name and address
of
the Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a Request for Release,
in
written or electronic format from, a Servicing Officer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received
in
connection with such liquidation that are required to be deposited into the
Collection Account have been so deposited, or that such Mortgage Loan has become
an REO Property, any outstanding Requests for Release with respect to such
Mortgage Loan shall be released by the Trustee (or the Custodian on behalf
of
the Trustee pursuant to the terms of the Custodial Agreement) to the Servicer
or
its designee.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer or the Sub-Servicer, as the case may be, any court
pleadings, requests for trustee’s sale or other documents necessary to the
foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note
or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or
rights provided by the Mortgage Note or Mortgage or otherwise available at
law
or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien
of the Mortgage, except for the termination of such a lien upon completion
of
the foreclosure or trustee’s sale.
SECTION
3.18. Servicing
Compensation.
As
compensation for the activities of the Servicer hereunder, the Servicer shall
be
entitled to the Servicing Fee with respect to each Mortgage Loan payable solely
from payments of interest in respect of such Mortgage Loan, subject to Section
3.24. In addition, the Servicer shall be entitled to recover unpaid Servicing
Fees (i) out of Insurance Proceeds, Liquidation Proceeds and condemnation
proceeds to the extent permitted by Section 3.11(a)(3), (ii) out of amounts
derived from the operation and sale of an REO Property to the extent permitted
by Section 3.23 and (iii) pursuant to Section 3.11(a)(6). Except as provided
in
Section 6.04, the right to receive the Servicing Fee may not be transferred
in
whole or in part except in connection with the transfer of all of the Servicer’s
responsibilities and obligations under this Agreement; provided, however, that
the Servicer may pay from the Servicing Fee any amounts due to a Sub-Servicer
pursuant to a Sub-Servicing Agreement entered into under Section 3.02. As part
of its servicing compensation, the Servicer shall also be entitled to Prepayment
Interest Excess.
Additional
servicing compensation in the form of assumption or modification fees, late
payment charges, insufficient funds charges, ancillary income or otherwise
(subject to Section 3.24 and other than Prepayment Charges) shall be retained
by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.11(a)(4)
to
withdraw from the Collection Account and pursuant to Section 3.23(b) to withdraw
from any REO Account, as additional servicing compensation, interest or other
income earned on deposits therein, subject to Section 3.12 and Section 3.24.
The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder (including premiums for the insurance
required by Section 3.14, to the extent such premiums are not paid by the
related Mortgagors or by a Sub-Servicer and servicing compensation of each
Sub-Servicer) and shall not be entitled to reimbursement therefor except as
specifically provided herein.
SECTION
3.19. Reports;
Collection Account Statements.
Not
later
than fifteen days after each Distribution Date, the Servicer shall forward,
upon
request, to the Trust Administrator, the NIMS Insurer and the Depositor the
most
current available bank statement for the Collection Account. Copies of such
statement shall be provided by the Trust Administrator to any Certificateholder
and to any Person identified to the Trust Administrator as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party; provided that such statement is delivered by the Servicer to the Trust
Administrator.
SECTION
3.20. Statement
as to Compliance.
The
Servicer will deliver to the Trust Administrator, not later than March
15th
of each
calendar year beginning in 2007, an Officers’ Certificate (an “Annual Statement
of Compliance”) stating, as to each signatory thereof, that (i) a review of the
activities of the Servicer during the preceding calendar year and of performance
under this Agreement has been made under such officer’s supervision and (ii) to
the best of such officer’s knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement in all material respects
throughout such year, or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officer and the nature and status of cure provisions thereof. Such Annual
Statement of Compliance shall contain no restrictions or limitations on its
use.
The Servicer shall deliver a similar Annual Statement of Compliance by any
Sub-Servicer to which the Servicer has delegated any servicing responsibilites
with respect to the Mortgage Loans or subcontractor or other Person engaged
by
it and satisfying any of the criteria set forth in Item 1108(a)(i)-(iii) of
Regulation AB, to the Trust Administrator as described above as and when
required with respect to the Servicer.
Failure
of the Servicer to timely comply with this Section 3.20 shall be deemed a
Servicer Event of Default, and the Trustee or the Master Servicer, as
applicable, may, in addition to whatever rights the Trustee or the Master
Servicer, as applicable, may have under this Agreement and at law or equity
or
to damages, including injunctive relief and specific performance, upon notice
immediately terminate (as provided in Section 7.01(a)) all the rights and
obligations of the Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof without compensating the Servicer for the same.
This paragraph shall supersede any other provision in this Agreement or any
other agreement to the contrary.
Each
of
the Master Servicer and the Trust Administrator shall also provide an Annual
Statement of Compliance, as and when provided above.
Each
of
the Servicer, the Master Servicer and the Trust Administrator (each, an
“Indemnifying Party”) shall indemnify and hold harmless the Depositor, the
Master Servicer, the Trust Administrator and their officers, directors and
Affiliates, as applicable, from and against any actual losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses that such Person may sustain
based
upon a breach of the obligations of such Indemnifying Party under this Section
3.20.
SECTION
3.21. Assessments
of Compliance and Attestation Reports.
The
Servicer shall service and administer the Mortgage Loans in accordance with
all
applicable requirements of the Relevant Servicing Criteria (as set forth in
Exhibit N hereto). Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act
and
Item 1122 of Regulation AB, the Servicer shall deliver to the Trust
Administrator on or before March 15th
of each
calendar year beginning in 2007, a report regarding the Servicer’s assessment of
compliance (an “Assessment of Compliance”) with the Servicing Criteria during
the preceding calendar year. The Assessment of Compliance must be reasonably
satisfactory to the Trust Administrator, and as set forth in Regulation AB,
the
Assessment of Compliance must contain the following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Relevant Servicing Criteria applicable to the Servicer;
(b) A
statement by such officer that such officer used the Relevant Servicing
Criteria, and which will also be attached to the Assement of Compliance, to
assess compliance with the Relevant Servicing Criteria applicable to the
Servicer;
(c) An
assessment by such officer of the Servicer’s compliance with the Relevant
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Relevant Servicing Criteria, if any, are not
applicable to the Servicer, which statement shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Relevant Servicing Criteria
specified on Exhibit N hereto which are indicated as applicable to the
Servicer.
On
or
before March 15th
of each
calendar year beginning in 2007, the Servicer shall furnish to the Trust
Administrator a report (an “Attestation Report”) by a registered public
accounting firm that attests to, and reports on, the Assessment of Compliance
made by the Servicer, as required by Rules 13a-18 and 15d-18 of the Exchange
Act
and Item 1122(b) of Regulation AB, which Attestation Report must be made in
accordance with standards for attestation reports issued or adopted by the
Public Company Accounting Oversight Board.
The
Servicer shall cause each Sub-Servicer, subcontractor or other Person determined
to be “participating in the servicing function” within the meaning of Item 1122
of Regulation AB (subject to the threshold limitation set forth in Instruction
2
thereof), to deliver to the Trust Administrator and the Depositor an Assessment
of Compliance and Attestation Report as and when provided above.
Such
Assessment of Compliance, as to each Sub-Servicer, subcontractor or other Person
determined to be “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, shall address any applicable Servicing Criteria
of
the party engaging such Sub-Servicer, subcontractor or other Person, as
specified on Exhibit N. Notwithstanding the foregoing, as to any subcontractor,
an Assessment of Compliance is not required to be delivered unless it is
required as part of a Form 10-K with respect to the Trust Fund.
Failure
of the Servicer to timely comply with this Section 3.21 shall be deemed a
Servicer Event of Default, and the Trustee or the Master Servicer, as
applicable, may, in addition to whatever rights the Trustee or the Master
Servicer, as applicable, may have under this Agreement and at law or in equity,
including injunctive relief and specific performance, upon notice immediately
terminate (as provided in Section 7.01(a)) all the rights and obligations of
the
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Servicer for the same. This paragraph shall
supersede any other provision in this Agreement or any other agreement to the
contrary.
Each
of
the Master Servicer and the Trust Administrator shall also provide an Assessment
of Compliance and Attestation Report, as and when provided above, which shall
at
a minimum address each of the Relevant Servicing Criteria specified on Exhibit
N
hereto which are indicated as applicable to each such party.
Each
of
the Servicer, the Master Servicer and the Trust Administrator shall indemnify
and hold harmless the Depositor, the Master Servicer and the Trust Administrator
and its respective officers, directors and Affiliates from and against any
actual losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses that such
Person may sustain based upon a breach of the obligations of such Indemnifying
Party under this Section 3.21.
SECTION
3.22. Access
to
Certain Documentation.
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to the documentation
in
the Servicer’s possession regarding the Mortgage Loans required by applicable
laws and regulations. Such access shall be afforded without charge, but only
upon reasonable request and during normal business hours at the offices of
the
Servicer designated by it. In addition, access to the documentation in the
Servicer’s possession regarding the Mortgage Loans will be provided to the
Trustee on behalf of the Certificateholders, the Trust Administrator, the Master
Servicer and the NIMS Insurer upon reasonable request during normal business
hours at the offices of the Servicer designated by it at the expense of the
Person requesting such access; provided however that providing access to such
Person will not violate any applicable laws. Nothing in this Section shall
limit
the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors (absent proof that it is
in
compliance with applicable law) and the failure of the Servicer to provide
access as provided in this Section as a result of such obligation shall not
constitute a breach of this Section. Nothing in this Section 3.22 shall require
the Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. The Servicer shall
not be required to make copies of or ship documents to any party unless
provisions have been made for the reimbursement of the costs
thereof.
SECTION
3.23. Title,
Management and Disposition of REO Property.
(a) In
the
event that title to an REO Property is acquired in foreclosure or by deed in
lieu of foreclosure, the deed or certificate of sale shall be taken (pursuant
to
a limited power of attorney to be provided by the Trustee to the Servicer)
in
the name of the Trustee or a nominee thereof, on behalf of the
Certificateholders, or in the event the Trustee or a nominee thereof is not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Servicer from an attorney
duly licensed to practice law in the state where the REO Property is located.
Any Person or Persons holding such title other than the Trustee shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Trustee. The Trustee’s name shall be placed on the title to such REO
Property solely as the Trustee hereunder and not in its individual capacity.
The
Servicer shall ensure that the title to such REO Property references this
Agreement and the Trustee’s capacity hereunder. The Servicer, on behalf of REMIC
I, shall sell any REO Property as soon as practicable and in any event no later
than the end of the third full taxable year after the taxable year in which
such
REMIC acquires ownership of such REO Property for purposes of Section 860G(a)(8)
of the Code or request from the Internal Revenue Service, no later than 60
days
before the day on which the three-year grace period would otherwise expire,
an
extension of such three-year period, unless the Servicer shall have delivered
to
the Trustee, the Trust Administrator and the NIMS Insurer an Opinion of Counsel
acceptable to the NIMS Insurer and addressed to the Trustee, the Trust
Administrator, the NIMS Insurer and the Depositor, to the effect that the
holding by the REMIC of such REO Property subsequent to three years after its
acquisition will not result in the imposition on the REMIC of taxes on
“prohibited transactions” thereof, as defined in Section 860F of the Code, or
cause any of the REMICs created hereunder to fail to qualify as a REMIC under
Federal law at any time that any Certificates are outstanding. The Servicer
shall manage, conserve, protect and operate each REO Property for the
Certificateholders solely for the purpose of its prompt disposition and sale
in
a manner which does not cause such REO Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by any of the REMICs created hereunder of any “income from
non-permitted assets” within the meaning of Section 860F(a)(2)(B) of the Code,
or any “net income from foreclosure property” which is subject to taxation under
the REMIC Provisions.
(b) The
Servicer shall separately account for all funds collected and received in
connection with the operation of any REO Property and shall establish and
maintain, or cause to be established and maintained, with respect to REO
Properties an account held in trust for the Trustee for the benefit of the
Certificateholders (the “REO Account”), which shall be an Eligible Account. The
Servicer shall be permitted to allow the Collection Account to serve as the
REO
Account, subject to separate ledgers for each REO Property. The Servicer shall
be entitled to retain or withdraw any interest income paid on funds deposited
in
the REO Account.
(c) The
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which
the
Servicer manages and operates similar property owned by the Servicer or any
of
its Affiliates, all on such terms and for such period (subject to the
requirement of prompt disposition set forth in Section 3.23(a)) as the Servicer
deems to be in the best interests of Certificateholders. In connection
therewith, the Servicer shall deposit, or cause to be deposited in the clearing
account in which it customarily deposits payments and collections on mortgage
loans in connection with its mortgage loan servicing activities on a daily
basis, and in no event more than one Business Day after the Servicer’s receipt
thereof, and shall thereafter deposit in the REO Account, in no event more
than
two Business Days after the Servicer’s receipt thereof, all revenues received by
it with respect to an REO Property and shall withdraw therefrom funds necessary
for the proper operation, management and maintenance of such REO Property
including, without limitation:
(1) all
insurance premiums due and payable in respect of such REO Property;
(2) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(3) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if,
the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Notwithstanding
the foregoing, neither the Servicer nor the Trustee shall:
(a) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property, if the New Lease by its terms will give rise to any income that
does not constitute Rents from Real Property;
(b) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(c) authorize
any construction on any REO Property, other than the completion of a building
or
other improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed before default
on the related Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(d) authorize
any Person to Directly Operate any REO Property on any date more than 90 days
after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel, provided
to
the Trustee, the Trust Administrator, the Master Servicer and the NIMS Insurer,
to the effect that such action will not cause such REO Property to fail to
qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the REMIC, in which case the Servicer
may take such actions as are specified in such Opinion of Counsel.
The
Servicer may contract with any Independent Contractor for the operation and
management of any REO Property; provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the Servicer
as soon as practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none
of
the provisions of this Section 3.23(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
the Servicer of any of its duties and obligations to the Trustee on behalf
of
the Certificateholders with respect to the operation and management of any
such
REO Property; and the Servicer shall be obligated with respect thereto to the
same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.18 is sufficient to pay such fees; provided,
however, that to the extent that any payments made by such Independent
Contractor would constitute Servicing Advances if made by the Servicer, such
amounts shall be reimbursable as Servicing Advances made by the
Servicer.
(d) In
addition to the withdrawals permitted under Section 3.23(c), the Servicer may
from time to time make withdrawals from the REO Account for any REO Property:
(i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect of the
related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for
unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, the
Servicer shall withdraw from each REO Account maintained by it and remit to
the
Trust Administrator for deposit into the Distribution Account in accordance
with
Section 3.10(d)(2), for distribution on the related Distribution Date in
accordance with Section 4.01, the income from the related REO Property received
during the prior calendar month, net of any withdrawals made pursuant to Section
3.23(c) or this Section 3.23(d).
(e) Subject
to the time constraints set forth in Section 3.23(a), each REO Disposition
shall
be carried out by the Servicer at such price and upon such terms and conditions
as the Servicer shall deem necessary or advisable, as shall be normal and usual
in the servicing standards set forth in Section 3.01.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above, shall
be
deposited in the Distribution Account in accordance with Section 3.10(d)(ii)
on
the Servicer Remittance Date in the month following the receipt thereof for
distribution on the related Distribution Date in accordance with Section 4.01.
Any REO Disposition shall be for cash only (unless changes in the REMIC
Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(g) The
Servicer shall file information returns with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness income
with respect to any Mortgaged Property as required by Sections 6050H, 6050J
and
6050P of the Code, respectively. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
SECTION
3.24. Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls.
The
Servicer shall deliver to the Trust Administrator for deposit into the
Distribution Account by 12:00 noon, New York time on the Servicer Remittance
Date from its own funds an amount (“Compensating Interest”) equal to the lesser
of (i) the aggregate of the Prepayment Interest Shortfalls for the related
Distribution Date resulting from full Principal Prepayments during the related
Prepayment Period and (ii) the aggregate Servicing Fee received in the related
Due Period. The Servicer shall not be obligated to pay Compensating Interest
with respect to Relief Act Interest Shortfalls. Any amounts paid by the Servicer
pursuant to this Section 3.24 shall not be reimbursed by REMIC I.
SECTION
3.25. Obligations
of the Servicer in Respect of Mortgage Rates and Monthly Payments.
In
the
event that a shortfall in any collection on or liability with respect to the
Mortgage Loans in the aggregate results from or is attributable to adjustments
to Mortgage Rates, Monthly Payments or Stated Principal Balances that were
made
by the Servicer in a manner not consistent with the terms of the related
Mortgage Note and this Agreement, the Servicer, upon discovery or receipt of
notice thereof, immediately shall deposit in the Collection Account from its
own
funds the amount of any such shortfall and shall indemnify and hold harmless
the
Trust Fund, the Trustee, the Trust Administrator, the Master Servicer, the
Depositor and any successor servicer in respect of any such liability. Such
indemnities shall survive the termination or discharge of this Agreement.
Notwithstanding the foregoing, this Section 3.25 shall not limit the ability
of
the Servicer to seek recovery of any such amounts from the related Mortgagor
under the terms of the related Mortgage Note, as permitted by law.
SECTION
3.26. Advance
Facility
(a) Notwithstanding
anything to the contrary contained herein, (i) the Servicer is hereby
authorized to enter into an advance facility (“Advance
Facility”)
under
which (A) the Servicer sells, assigns or pledges to another Person
(together with such person’s successors and assigns, an “Advancing Person”) the
Servicer’s rights under this Agreement to be reimbursed for any Advances or
Servicing Advances and/or (B) an Advancing Person agrees to fund some or
all Advances or Servicing Advances required to be made by the Servicer pursuant
to this Agreement and (ii) the Servicer is hereby authorized to assign its
rights to the Servicing Fee; it being understood that neither the Trust Fund
nor
any party hereto shall have a right or claim (including without limitation
any
right of offset) to the portion of the Servicing Fee so assigned. No
consent of the Trustee, Trust Administrator, Master Servicer, Certificateholders
or any other party is required before the Servicer may enter into an Advance
Facility. Notwithstanding the existence of any Advance Facility under which
an
Advancing Person agrees to fund Advances and/or Servicing Advances on the
Servicer’s behalf, the Servicer shall remain obligated pursuant to this
Agreement to make Advances and Servicing Advances pursuant to and as required
by
this Agreement, and shall not be relieved of such obligations by virtue of
such
Advance Facility. If the Servicer enters into an Advance Facility, and for
so
long as an Advancing Person remains entitled to receive reimbursement for any
Advances including Nonrecoverable Advances related thereto (“Advance
Reimbursement Amounts”) and/or Servicing Advances, including Nonrecoverable
Servicing Advances related thereto (“Servicing Advance Reimbursement Amounts”
and, together with Advance Reimbursement Amounts, “Reimbursement Amounts”) (in
each case to the extent that such type of Reimbursement Amount is included
in
the Advance Facility), then the Servicer shall identify such Reimbursement
Amounts as received, consistently with the reimbursement rights set forth in
this Agreement, and shall remit such Reimbursement Amounts in accordance with
the documentation establishing the Advance Facility to such Advancing Person
or
to a trustee, agent or custodian (an “Advance Facility Trustee”) designated by
such Advancing Person. Notwithstanding the foregoing, if so required pursuant
to
the terms of the Advance Facility, the Servicer may direct the Trust
Administrator to, and if so directed the Trust Administrator is hereby
authorized to and shall, pay to the Advancing Person or the Advance Facility
Trustee the Reimbursement Amounts identified pursuant to the preceding sentence.
Notwithstanding anything to the contrary herein, in no event shall Reimbursement
Amounts be included in Available Funds or distributed to
Certificateholders.
If
the
Servicer enters into an Advance Facility, the Servicer and the related Advancing
Person shall deliver to the Trustee and the Trust Administrator a written notice
of the existence of such Advance Facility (an “Advance Facility Notice”),
stating the identity of the Advancing Person and any related Advance Facility
Trustee. An Advance Facility Notice may only be terminated by the joint written
direction of the Servicer and the related Advancing Person as described in
Section 3.26(h) below.
(b) Reimbursement
Amounts shall consist solely of amounts in respect of Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would
be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer had made the related Advance(s) and/or Servicing Advance(s).
Neither the Trustee nor the Trust Administrator shall have any duty or liability
with respect to the calculation of any Reimbursement Amount, nor shall the
Trustee or Trust Administrator have any responsibility to track or monitor
the
administration of the Advance Facility or the payment of Reimbursement Amounts
to the related Advancing Person or Advance Facility Trustee. The Servicer shall
maintain and provide to any successor servicer a detailed accounting on a loan
by loan basis as to amounts advanced by, pledged or assigned to, and reimbursed
to any Advancing Person. The successor servicer shall be entitled to rely on
any
such information provided by the predecessor Servicer, and the successor
servicer shall not be liable for any errors in such information.
(c) An
Advancing Person who receives an assignment or pledge of the rights to be
reimbursed for Advances and/or Servicing Advances, and/or whose obligations
are
limited to the making or funding of Advances will not be deemed to be a
Sub-servicer under this Agreement or be required to meet the criteria for
qualification as a Sub-servicer under this Agreement.
(d) Reimbursement
Amounts allocated to reimburse Advances or Servicing Advances made with respect
to any particular Mortgage Loan shall be allocated to the reimbursement of
the
unreimbursed Advances or Servicing Advances (as the case may be) made with
respect to that Mortgage Loan on a “first-in, first out” (“FIFO”) basis, such
that the Reimbursement Amounts shall be applied to reimburse the Advance or
Servicing Advance (as the case may be) for that Mortgage Loan that was disbursed
earliest in time first, and to reimburse the Advance or Servicing Advance (as
the case may be) for that Mortgage Loan that was disbursed latest in time last.
Liquidation Proceeds with respect to a Mortgage Loan shall be applied to
reimburse Servicing Advances outstanding with respect to that Mortgage Loan
before being applied to reimburse Advances outstanding with respect to that
Mortgage Loan. The Servicer shall provide to the related Advancing Person or
Advance Facility Trustee loan-by-loan information with respect to each
Reimbursement Amount remitted to such Advancing Person or Advance Facility
Trustee, to enable the Advancing Person or Advance Facility Trustee to make
the
FIFO allocation of each such Reimbursement Amount with respect to each Mortgage
Loan.
(e) The
Servicer who enters into an Advance Facility shall indemnify the Trustee, the
Trust Administrator, the Master Servicer, the Trust Fund, the Depositor and
any
successor servicer for any claim, loss, liability or damage resulting from
any
claim by the related Advancing Person, except to the extent that such claim,
loss, liability or damage (i) in the case of the Depositor, was incurred by
reason of the Depositor’s willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of its reckless disregard of
obligations and duties hereunder, (ii) in the case of a successor servicer,
was
incurred by reason of such successor servicer’s willful misfeasance, bad faith
or negligence in the performance of duties hereunder or by reason of its
reckless disregard of obligations and duties hereunder or by reason of a breach
of such successor servicer’s obligations and duties under this Agreement or
(iii) in the case of the Trustee, the Trust Administrator, the Master Servicer
or the Trust Fund, (A) resulted from a breach of the Servicer’s or a successor
servicer’s obligations and duties under this Agreement for which any such party
is indemnified under Section 6.03(a) or (B) was incurred by reason of willful
misfeasance, bad faith or negligence of any such party in the performance of
its
duties hereunder or by reason of such party’s reckless disregard of obligations
and duties hereunder or as a result of a breach of such party’s obligations
under Article VIII hereof. Notwithstanding the foregoing, the exclusions set
forth in clauses (i), (ii) and (iii) above from the Servicer’s obligation to
indemnify the Depositor, any successor servicer, the Trustee, the Trust
Administrator, the Master Servicer and the Trust Fund shall not be applicable,
in any case, to the extent the applicable claim, loss, liability or damage
was
incurred by reason of the Servicer’s willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of its reckless
disregard of obligations and duties hereunder or by reason of a breach of the
Servicer’s obligations and duties under this Agreement.
(f) Any
amendment to this Section 3.26 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 3.26, including amendments to add provisions
relating to a successor servicer, may be entered into by the Depositor, the
Trustee, the Trust Administrator, the Master Servicer and the Servicer without
the consent of any Certificateholder, notwithstanding anything to the contrary
in this Agreement.
(g) Any
rights of set-off that the Trust Fund, the Trustee, the Trust Administrator,
the
Master Servicer, the Depositor, any successor servicer or any other Person
might
otherwise have against the Servicer under this Agreement shall not attach to
any
rights to be reimbursed for Advances or Servicing Advances that have been sold,
transferred, pledged, conveyed or assigned to any Advancing Person.
(h) At
any
time when an Advancing Person shall have ceased funding Advances and/or
Servicing Advances (as the case may be) and the Advancing Person or related
Advance Facility Trustee shall have received Reimbursement Amounts sufficient
in
the aggregate to reimburse all Advances and/or Servicing Advances (as the case
may be) the right to reimbursement for which were assigned to the Advancing
Person, then upon the delivery of a written notice signed by the Advancing
Person and the Servicer to the Trustee and the Trust Administrator terminating
the Advance Facility Notice (the “Notice of Facility Termination”), the Servicer
shall again be entitled to withdraw and retain the related Reimbursement Amounts
from the Collection Account pursuant to the applicable Sections of this
Agreement.
(i) After
delivery of any Advance Facility Notice, and until any such Advance Facility
Notice has been terminated by a Notice of Facility Termination, this
Section 3.26 may not be amended or otherwise modified without the prior
written consent of the related Advancing Person.
ARTICLE
IIIA
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
|
SECTION
3A.01.
|
Master
Servicer to Act as Master Servicer
|
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicer to service and administer the Mortgage Loans in accordance with the
terms of this 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. In performing its obligations hereunder,
the Master Servicer shall act in a manner consistent with Accepted Master
Servicing Practices. Furthermore, the Master Servicer shall oversee and consult
with the 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 the
Servicer and shall cause the Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by the Servicer under
this Agreement. The Master Servicer shall independently monitor the Servicer’s
servicing activities with respect to each 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 Servicer’s and Master
Servicer’s records, and based on such reconciled and corrected information, the
Master Servicer shall provide such information to the Trust Administrator as
shall be necessary in order for it to prepare the statements specified in
Section 4.02, and prepare any other information and statements required to
be forwarded by the Master Servicer hereunder. The Master Servicer shall
reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicer to the Collection Account pursuant to Section
3.10.
The
Trustee shall furnish the Servicer and the Master Servicer with any powers
of
attorney and other documents in form as provided to it necessary or appropriate
to enable the Servicer and the Master Servicer to service and administer the
Mortgage Loans and REO Properties.
The
Trustee and the Trust Administrator shall provide access to the records and
documentation in possession of the Trustee or the Trust Administrator, as
applicable, regarding the Mortgage Loans and REO Properties and the servicing
thereof to the Certificateholders, the FDIC, and the supervisory agents and
examiners of the FDIC, such access being afforded only upon reasonable prior
written request and during normal business hours at the office of the Trustee
or
the Trust Administrator, as applicable; provided, however, that, unless
otherwise required by law, neither the Trustee nor the Trust Administrator
shall
be required to provide access to such records and documentation if the provision
thereof would violate the legal right to privacy of any Mortgagor. The Trustee
and the Trust Administrator shall allow representatives of the above entities
to
photocopy any of the records and documentation and shall provide equipment
for
that purpose at a charge that covers the Trustee’s or Trust Administrator’s, as
applicable, actual costs.
The
Trustee shall execute and deliver to the Servicer and the Master Servicer any
court pleadings, requests for trustee’s sale or other documents necessary or
desirable to (i) the foreclosure or trustee’s sale with respect to a Mortgaged
Property; (ii) any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Security Instrument; (iii) obtain a deficiency judgment
against the Mortgagor; or (iv) enforce any other rights or remedies provided
by
the Mortgage Note or Mortgage or otherwise available at law or
equity.
|
SECTION
3A.02.
|
[Reserved].
|
|
SECTION
3A.03.
|
Monitoring
of Servicer.
|
(a) The
Master Servicer shall be responsible for reporting to the Trustee, the Trust
Administrator and the Depositor the compliance by the Servicer with its duties
under this Agreement. In the review of the Servicer’s activities, the Master
Servicer may rely upon an Officers’ Certificate of the Servicer (or similar
document signed by a Servicing Officer of the Servicer) with regard to the
Servicer’s compliance with the terms of this Agreement. In the event that the
Master Servicer, in its judgment, determines that the Servicer should be
terminated in accordance with the terms hereof, or that a notice should be
sent
pursuant to the terms hereof with respect to the occurrence of an event that,
unless cured, would constitute grounds for such termination, the Master Servicer
shall notify the Depositor, the Trust Administrator and the Trustee thereof
and
the Master Servicer shall issue such notice or take such other action as it
deems appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicer under this Agreement, and shall,
in the event that the Servicer fails to perform its obligations in accordance
with this Agreement, subject to the preceding paragraph, terminate the rights
and obligations of the Servicer hereunder in accordance with the provisions
of
Article VII and act as Servicer of the Mortgage Loans or appoint a successor
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 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
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 the Servicer, appointment of a successor servicer or the transfer
and assumption of servicing by the Master Servicer (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 a Servicer Event of Default and (ii) all costs and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the successor servicer to service the Mortgage Loans in accordance with
this 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 Distribution Account.
(d) The
Master Servicer shall require the Servicer to comply with the remittance
requirements and other obligations set forth in this Agreement.
(e) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the Servicer that it replaces.
|
SECTION
3A.04.
|
Fidelity
Bond
|
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master Servicer or
trustees.
|
SECTION
3A.05.
|
Power
to Act; Procedures.
|
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
case, in accordance with the provisions of this Agreement; provided, however,
that the Master Servicer shall not (and, consistent with its responsibilities
under Article X, shall not permit any Servicer to) knowingly or intentionally
take any action, or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, would cause the Trust REMIC to fail to qualify as a REMIC or result
in the imposition of a tax upon the Trust Fund (including but not limited to
the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the Master Servicer has received an Opinion of Counsel (but not
at
the expense of the Master Servicer) to the effect that the contemplated action
would not cause any REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC. The Trustee shall furnish the Master
Servicer or the Servicer, upon written request from a Servicing Officer, with
any powers of attorney empowering the Master Servicer or the Servicer to execute
and deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to
the
Mortgage Loans or the Mortgaged Property, in accordance with this Agreement,
and
the Trustee shall execute and deliver such other documents, as the Master
Servicer may request, to enable the Master Servicer to master service and
administer the Mortgage Loans and carry out its duties hereunder, in each case
in accordance with Accepted Master Servicing Practices (and the Trustee shall
have no liability for misuse of any such powers of attorney by the Master
Servicer or the Servicer). If the Master Servicer or the Trustee has been
advised that it is likely that the laws of the state in which action is to
be
taken prohibit such action if taken in the name of the Trustee or that the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, the Master Servicer shall join
with the Trustee in the appointment of a co-trustee pursuant to
Section 8.10 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action in the name of the Trustee, be deemed to
be
the agent of the Trustee.
|
SECTION
3A.06.
|
Due
on Sale Clauses; Assumption
Agreements.
|
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicer to enforce such clauses in accordance with
this Agreement. If applicable law prohibits the enforcement of a due-on-sale
clause or such clause is otherwise not enforced in accordance with this
Agreement, and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be released from liability in accordance with this
Agreement.
SECTION
3A.07. [Reserved].
|
SECTION
3A.08.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
(a) The
Master Servicer and the Servicer shall transmit to the Trustee (or the Custodian
on behalf of the Trustee) such documents and instruments coming into the
possession of the Master Servicer or the Servicer from time to time as are
required by the terms hereof to be delivered to the Trustee, the Trust
Administrator or the Custodian. Any funds received by the Master Servicer or
by
the Servicer in respect of any Mortgage Loan or which otherwise are collected
by
the Master Servicer or by the Servicer as Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan shall be held for the benefit of the
Trustee and the Certificateholders subject to the Master Servicer’s right to
retain or withdraw from the Distribution Account the Master Servicing
Compensation and other amounts provided in this Agreement, and to the right
of
the Servicer to retain its Servicing Fee and other amounts as provided in this
Agreement. The Master Servicer shall, and subject to Section 3.22 shall cause
the Servicer to, provide access to information and documentation regarding
the
Mortgage Loans to the Trust Administrator, its agents and accountants at any
time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan associations, banks or insurance
companies, the Office of Thrift Supervision, the FDIC and the supervisory agents
and examiners of such Office and Corporation or examiners of any other federal
or state banking or insurance regulatory authority if so required by applicable
regulations of the Office of Thrift Supervision or other regulatory authority,
such access to be afforded without charge but only upon reasonable request
in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not
be
responsible for determining the sufficiency of such information.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer or the Servicer, in respect of any Mortgage Loans, whether
from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Servicer or the Master Servicer,
as
applicable, for and on behalf of the Trustee and the Certificateholders and
shall be and remain the sole and exclusive property of the Trustee; provided,
however, that the Master Servicer and the Servicer shall be entitled to setoff
against, and deduct from, any such funds any amounts that are properly due
and
payable to the Master Servicer or the Servicer under this
Agreement.
|
SECTION
3A.09.
|
Compensation
for the Master Servicer.
|
The
Master Servicer will be entitled to all income and gain realized from any
investment of funds in the Distribution Account, pursuant to Section 3A.11
and Section 3A.12, for the performance of its activities hereunder (the
“Master Servicing Compensation”). Servicing compensation in the form of
assumption fees, if any, late payment charges, as collected, if any, or
otherwise shall be retained by the Servicer in accordance with Section 3.18.
The
Master Servicer shall be required to pay all expenses incurred by it in
connection with the performance of its duties hereunder and shall not be
entitled to reimbursement therefor except as provided in this
Agreement.
|
SECTION
3A.10.
|
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
In
the
event of a Prepayment Interest Shortfall, the Master Servicer shall remit to
the
Trust Administrator, from its own funds and without right of reimbursement
(except as described below), not later than the related Distribution Date,
Compensating Interest in an amount equal to the lesser of (i) the aggregate
amounts in respect of Compensating Interest required to be paid by the Servicer
pursuant to Section 3.24 with respect to Prepayment Interest Shortfalls
attributable to Principal Prepayments in full on the Mortgage Loans for the
related Distribution Date and not so paid by the Servicer and (ii) the aggregate
Administration Fee payable to the Trust Administrator for such Distribution
Date. In the event the Master Servicer pays any amount in respect of such
Compensating Interest prior to the time it shall have succeeded as successor
servicer, the Master Servicer shall be subrograted to the Trust Fund’s right to
receive such amount from the Servicer. In the event the Trust Fund receives
from
the Servicer all or any portion of amounts in respect of Compensating Interest
required to be paid by the Servicer pursuant to Section 3.24, not so paid by
the
Servicer when required, and paid by the Master Servicer pursuant to this
Section 3A.10, then the Master Servicer may reimburse itself for the amount
of Compensating Interest paid by the Master Servicer from such receipts by
the
Trust Fund.
|
SECTION
3A.11.
|
Distribution
Account.
|
(a) On
behalf
of the Trust Fund, the Trust Administrator shall establish and maintain one
or
more accounts (such account or accounts, the “Distribution Account”), held in
trust for the benefit of the Trustee and the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer will
deposit in the Distribution Account as identified by the Master Servicer and
as
received by the Master Servicer, the following amounts:
(1) Any
amounts remitted to the Master Servicer by the Servicer from the Collection
Account;
(2) Any
Advances and any payments of Compensating Interest received from the Servicer
or
made by the Master Servicer in its capacity as successor servicer (unless,
in
the case of the Servicer, such amounts are deposited by the Master Servicer
directly into the Distribution Account);
(3) Any
Insurance Proceeds or Net Liquidation Proceeds received by or on behalf of
the
Master Servicer or which were not deposited in the Collection
Account;
(4)
Any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(5) Any
other
amounts received by or on behalf of the Master Servicer and required to be
deposited in the Distribution Account pursuant to this Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Master
Servicer in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (A) late payment charges or
assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges and (B) the items
enumerated in Section 3A.12(a) (with respect the clearing and termination
of the Distribution Account and with respect to amounts deposited in error),
in
Section 3A.12(b) or in clauses (i), (ii), (iii) and (iv), (v) of
Section 3A.12(c), need not be credited by the Master Servicer to the
Distribution Account. In the event that the Master Servicer shall deposit or
cause to be deposited to the Distribution Account any amount not required to
be
credited thereto, the Trustee or the Trust Administrator, upon receipt of a
written request therefor signed by a Servicing Officer of the Master Servicer,
shall promptly transfer such amount to the Master Servicer, any provision herein
to the contrary notwithstanding.
(c) The
Trust
Administrator may direct any depository institution maintaining the Distribution
Account to invest the funds on deposit in such account or to hold such funds
uninvested. All investments pursuant to this Section 3A.11 shall be in one
or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if a Person other than the Trust
Administrator is the obligor thereon or if such investment is managed or advised
by a Person other than the Trust Administrator or an Affiliate of the Trust
Administrator, and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the Trust
Administrator is the obligor thereon or if such investment is managed or advised
by the Trust Administrator or any Affiliate. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds
in
the Distribution Account shall be made in the name of the Trustee, or in the
name of a nominee of the Trust Administrator. The Trust Administrator shall
be
entitled to sole possession over each such investment, and any certificate
or
other instrument evidencing any such investment shall be delivered directly
to
the Trust Administrator or its agent, together with any document of transfer
necessary to transfer title to such investment to the Trust Administrator or
its
nominee. In the event amounts on deposit in the Distribution Account are at
any
time invested in a Permitted Investment payable on demand, the Trust
Administrator shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trust Administrator that such Permitted Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Distribution Account.
(d) All
income and gain realized from the investment of funds deposited in the
Distribution Account shall be for the benefit of the Master Servicer. The Trust
Administrator shall deposit in the Distribution Account the amount of any loss
of principal incurred in respect of any such Permitted Investment made with
funds in such Account immediately upon realization of such loss.
|
SECTION
3A.12.
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
(a) The
Trust
Administrator will, from time to time on demand of the Master Servicer, the
Servicer or the Trustee, make or cause to be made such withdrawals or transfers
from the Distribution Account as the Master Servicer has designated for such
transfer or withdrawal pursuant to this Agreement. The Trust Administrator
may
clear and terminate the Distribution Account pursuant to Section 9.01 and
remove amounts from time to time deposited in error.
(b) On
an
ongoing basis, the Trust Administrator shall withdraw funds from the
Distribution Account to pay (i) any Extraordinary Trust Fund Expenses including
but not limited to amounts payable to the Servicer or the Depositor pursuant
to
Section 6.03(b) or Master Servicer pursuant to Section 6.03(c), and
(ii) any amounts expressly payable to the Master Servicer as set forth in
Section 3A.09.
(c) The
Trust
Administrator may withdraw from the Distribution Account any of the following
amounts (in the case of any such amount payable or reimbursable to the Servicer,
only to the extent the Servicer shall not have paid or reimbursed itself such
amount prior to making any remittance to the Master Servicer pursuant to the
terms of this Agreement):
(i) to
reimburse the Master Servicer for any Advance of its own funds, the right of
the
Master Servicer to reimbursement pursuant to this subclause (i) being limited
to
amounts received on a particular Mortgage Loan (including, for this purpose,
the
Purchase Price therefor, Insurance Proceeds, Liquidation Proceeds and Subsequent
Recoveries) which represent late payments or recoveries of the principal of
or
interest on such Mortgage Loan respecting which such Advance was
made;
(ii) to
reimburse the Master Servicer from Insurance Proceeds, Liquidation Proceeds
or
Subsequent Recoveries relating to a particular Mortgage Loan for amounts
expended by the Master Servicer in good faith in connection with the restoration
of the related Mortgaged Property which was damaged by an Uninsured Cause or
in
connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer from Insurance Proceeds relating to a particular
Mortgage Loan for insured expenses incurred with respect to such Mortgage Loan
and to reimburse the Master Servicer from Liquidation Proceeds and Subsequent
Recoveries from a particular Mortgage Loan for Liquidation Expenses incurred
with respect to such Mortgage Loan;
(iv) to
reimburse the Master Servicer for advances of funds (other than Advances) made
with respect to the Mortgage Loans, and the right to reimbursement pursuant
to
this subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and Subsequent Recoveries) which represent late recoveries
of the payments for which such advances were made;
(v) to
reimburse the Master Servicer for any Advance or Servicing Advance, after a
Realized Loss has been allocated with respect to the related Mortgage Loan
if
the Advance or Servicing Advance has not been reimbursed pursuant to clauses
(i)
through (iv);
(vi) to
make
distributions in accordance with Section 4.01;
(vii) to
pay to
the Trust Administrator on each Distribution Date the Administration
Fee;
(viii) to
pay
any amounts in respect of taxes pursuant to Section 10.01(g);
(ix) without
duplication of the amount set forth in clause (iii) above, to pay any
Extraordinary Trust Fund Expenses to the extent not paid by the Master Servicer
from the Distribution Account;
(x) without
duplication of any of the foregoing, to reimburse or pay the Servicer any such
amounts as are due thereto under this Agreement and have not been retained
by or
paid to the Servicer, to the extent provided in this Agreement and to refund
to
the Servicer any amount remitted by the Servicer to the Master Servicer in
error;
(xi) to
pay to
the Master Servicer, any interest or investment income earned on funds deposited
in the Distribution Account;
(xii) to
pay
the Credit Risk Manager the Credit Risk Manager Fee;
(xiii) to
withdraw any amount deposited in the Distribution Account in error;
and
(xiv) to
clear
and terminate the Distribution Account pursuant to
Section 9.01.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of accounting for any reimbursement
from
the Distribution Account pursuant to clauses (i) through (v) above or with
respect to any such amounts which would have been covered by such clauses had
the amounts not been retained by the Master Servicer without being deposited
in
the Distribution Account.
(d) On
or
before the Business Day prior to each Distribution Date, the Master Servicer
shall remit to the Distribution Account any Advances required to be made and
any
Compensating Interest required to be paid, in either such case by the Master
Servicer with respect to the Mortgage Loans.
ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS
SECTION
4.01. Distributions.
(a) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC I to REMIC II on account of the REMIC I Regular
Interests and distributed to the holders of the Class R Certificates (in respect
of the Class R-I Interest), as the case may be:
(1) to
Holders of REMIC I Regular Interest I-1-A through I-43-B, pro rata, in an amount
equal to (A) Uncertificated Interest for such REMIC I Regular Interests for
such
Distribution Date, plus (B) any amounts payable in respect thereof remaining
unpaid from previous Distribution Dates.
(2) to
the
extent of amounts remaining after the distributions made pursuant to clause
(1)
above, payments of principal shall be allocated as follows: first, to REMIC
I
Regular Interest I and then to REMIC I Regular Interests I-1-A through I-43-B
starting with the lowest numerical denomination until the Uncertificated Balance
of each such REMIC I Regular Interest is reduced to zero, provided that, for
REMIC I Regular Interests with the same numerical denomination, such payments
of
principal shall be allocated pro rata between such REMIC I Regular Interests,
and second, to the extent of any Overcollateralization Reduction Amounts, to
REMIC I Regular Interests I-1-A through I-40-B starting with the lowest
numerical denomination until the Uncertificated Balance of each such REMIC
I
Regular Interest is reduced to zero, provided that, for REMIC I Regular
Interests with the same numerical denomination, such Overcollateralization
Reduction Amounts shall be allocated pro rata between such REMIC I Regular
Interests.
(3) to
the
Holders of REMIC I Regular Interest I-LTP, (A) all amounts representing
Prepayment Charges in respect of the Mortgage Loans received during the related
Prepayment Period and (B) on the Distribution Date immediately following the
expiration of the latest Prepayment Charge as identified on the Prepayment
Charge Schedule or any Distribution Date thereafter until $100 has been
distributed pursuant to this clause.
(b) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests or withdrawn from the Distribution Account and distributed to the
holders of the Class R Certificates (in respect of the Class R-II Interest),
as
the case may be:
(1) to
the
Holders of REMIC II Regular Interest II-LTIO, in an amount equal to (a)
Uncertificated Accrued Interest for such REMIC II Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates.
(2) to
Holders of REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTA1,
REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3, REMIC
II
Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest II-LTM6,
REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC
II
Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC II Regular
Interest II-LTM11, REMIC II Regular Interest II-LTM12, REMIC II Regular Interest
II-LTZZ and REMIC II Regular Interest II-LTP, pro
rata,
in an
amount equal to (A) the Uncertificated Interest for such Distribution Date,
plus
(B) any amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Interest in respect of REMIC II Regular
Interest II-LTZZ shall be reduced and deferred when the REMIC II
Overcollateralized Amount is less than the REMIC II Required
Overcollateralization Amount, by the lesser of (x) the amount of such difference
and (y) the Maximum II-LTZZ Uncertificated Interest Deferral Amount and such
amount will be payable to the Holders of REMIC II Regular Interest II-LTA1,
REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3, REMIC
II
Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest II-LTM6,
REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC
II
Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC II Regular
Interest II-LTM11 and REMIC II Regular Interest II-LTM12 in the same proportion
as the Overcollateralization Deficiency Amount is allocated to the Corresponding
Certificates and the Uncertificated Balance of REMIC II Regular Interest II-LTZZ
shall be increased by such amount; and
(3) to
the
Holders of REMIC II Regular Interest II-LTP, (A) on each Distribution Date,
100%
of the amount paid in respect of Prepayment Charges and (B) on the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause;
(4) to
the
Holders of the REMIC II Regular Interests, in an amount equal to the remainder
of the Available Funds for such Distribution Date after the distributions made
pursuant to clauses (i), (ii) and (iii) above, allocated as
follows:
(a) 98.00%
of
such remainder to the Holders of REMIC II Regular Interest II-LTAA, until the
Uncertificated Balance of such REMIC II Regular Interest is reduced to
zero;
(b) 2.00%
of
such remainder, first to the Holders of REMIC II Regular Interest II-LTA1,
REMIC
II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3, REMIC II Regular
Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest
II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest II-LTM4,
REMIC II Regular Interest II-LTM5, REMIC II Regular Interest II-LTM6, REMIC
II
Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC II Regular
Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC II Regular Interest
II-LTM11 and REMIC II Regular Interest II-LTM12, equal to 1.00% of and in the
same proportion as principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Balances of such REMIC II Regular
Interests are reduced to zero and second, to the Holders of REMIC II Regular
Interest II-LTZZ, 1.00%, until the Uncertificated Balance of such REMIC II
Regular Interest is reduced to zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-II Interest);
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Release Amount shall be allocated
to
Holders of REMIC II Regular Interest II-LTAA and REMIC II Regular Interest
II-LTZZ, respectively.
Notwithstanding
the priorities and amounts of distribution of funds pursuant to this Section
4.01(a), actual distributions of Available Funds shall be made only in
accordance with Section 4.01(c) and (d).
On
each
Distribution Date, 100% of the amounts distributed on REMIC II Regular Interest
II-LTIO shall be deemed distributed by REMIC II to REMIC III in respect of
the
Class SWAP-LTIO Interest. Such amounts shall be deemed distributed by REMIC
III
to REMIC IV Regular Interest Swap-IO and from REMIC IV Regular Interest Swap-IO
to the Trust Administrator for deposit into the Swap Account.
(c) On
each
Distribution Date, the Trust Administrator shall withdraw from the Distribution
Account that portion of Available Funds for such Distribution Date consisting
of
the Interest Remittance Amount for such Distribution Date, and make the
following distributions in the order of priority described below, in each case
to the extent of the Interest Remittance Amount remaining for such Distribution
Date:
(1) concurrently,
to the Holders of the Class A Certificates, on a pro
rata
basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, for such Certificates
for such Distribution Date; and
(2) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certficates, the Class M-10 Certificates, the Class
M-11 Certificates and the Class M-12 Certificates, the Monthly Interest
Distributable Amount allocable to each such Class of Certificates.
(d) (I) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the
Principal Distribution Amount shall be made in the following amounts and order
of priority:
(1) to
the
Holders of the Class A Certificates (allocated among the Class A Certificates
in
the priority described below), until the Certificate Principal Balances thereof
have been reduced to zero; and
(2) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates, the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certficates, the Class M-10 Certificates, the Class
M-11 Certificates and the Class M-12 Certificates, in that order, until the
Certificate Principal Balances thereof have been reduced to zero.
(II) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Principal Distribution Amount shall be made in the following amounts and
order of priority:
(1) to
the
Holders of the Class A Certificates (allocated among the Class A Certificates
in
the priority described below), the Senior Principal Distribution Amount until
the Certificate Principal Balances thereof have been reduced to
zero;
(2) to
the
Holders of the Class M-1 Certificates, the Class M-1 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(3) to
the
Holders of the Class M-2 Certificates, the Class M-2 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(4) to
the
Holders of the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(5) to
the
Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(6) to
the
Holders of the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(7) to
the
Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(8) to
the
Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(9) to
the
Holders of the Class M-8 Certificates, the Class M-8 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(10) to
the
Holders of the Class M-9 Certificates, the Class M-9 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(11) to
the
Holders of the Class M-10 Certificates, the Class M-10 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(12) to
the
Holders of the Class M-11 Certificates, the Class M-11 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(13) to
the
Holders of the Class M-12 Certificates, the Class M-12 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero.
With
respect to the Class A Certificates, all principal distributions will be
distributed sequentially, to the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class A-4 Certificates, in
that
order, until their respective Certificate Principal Balances have been reduced
to zero; provided, however, on any Distribution Date on which the aggregate
Certificate Principal Balance of the Mezzanine Certificates and the Class CE
Certificates has been reduced to zero, all principal distributions to the Class
A Certificates will be distributed concurrently, to the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3 Certificates and the Class A-4
Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class.
(e) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed as
follows:
(1) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement or the Cap Contract, distributable to such
Holders as part of the Principal Distribution Amount, as applicable, as
described under Section 4.01(b) above;
(2) sequentially,
to the Holders of the Class M-1 Certificates, Class M-2 Certificates, Class
M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates, Class M-10 Certificates, Class M-11 Certificates and Class M-12
Certificates, in that order, in each case, first, up to the Unpaid Interest
Shortfall Amount for each such Class and second, up to the Allocated Realized
Loss Amount, for each such Class;
(3) to
the
Net WAC Rate Carryover Reserve Account, the amount of any Net WAC Rate Carryover
Amounts, without taking into account amounts, if any, received under the
Interest Rate Swap Agreement or the Cap Contract;
(4) to
the
Swap Provider, any Swap Termination Payments resulting from a Swap Provider
Trigger Event;
(5) to
the
Holders of the Class CE Certificates, (a) the Monthly Interest Distributable
Amount and any Overcollateralization Release Amount for such Distribution Date
and (b) on any Distribution Date on which the aggregate Certificate Principal
Balance of the Class A Certificates and the Mezzanine Certificates has been
reduced to zero, any remaining amounts in reduction of the Certificate Principal
Balance of the Class CE Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
(6) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero; and
(7) any
remaining amounts to the Holders of the Residual Certificates (in respect of
the
appropriate Class R Interest).
Without
limiting the provisions of Section 9.01(b), by acceptance of the Residual
Certificates the Holders of the Residual Certificates agree, and it is the
understanding of the parties hereto, that for so long as any of the notes issued
pursuant to the Indenture are outstanding or any amounts are reimbursable or
payable to the NIMS Insurer in accordance with the terms of the Indenture,
to
pledge their rights to receive any amounts otherwise distributable to the
Holders of the Class R Certificates (and such rights are hereby assigned and
transferred) to the Holders of the Class CE Certificates.
(f) On
each
Distribution Date, after making the distributions of the Available Funds as
set
forth above, the Trust Administrator will withdraw from the Net WAC Rate
Carryover Reserve Account, to the extent of amounts on deposit therein, the
amount of any Net WAC Rate Carryover Amount for such Distribution Date and
distribute such amount in the following order of priority:
(1)
concurrently, to the Class A Certificates, on a pro
rata
basis
based on the remaining Net WAC Rate Carryover Amount for each such Class;
and
(2) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class M-11 and Class M-12 Certificates,
in that order, the Net WAC Rate Carryover Amount for each such
Class.
On
each
Distribution Date, the Trust Administrator shall withdraw any amounts then
on
deposit in the Distribution Account that represent (i) Prepayment Charges
collected by the Servicer and remitted to the Master Servicer in connection
with
the Principal Prepayment of any of the Mortgage Loans or (ii) any Servicer
Prepayment Charge Payment Amounts, and shall distribute such amounts to the
Holders of the Class P Certificates. Such distributions shall not be applied
to
reduce the Certificate Principal Balance of the Class P
Certificates.
Following
the foregoing distributions, an amount equal to the amount of Subsequent
Recoveries remitted to the Master Servicer shall be applied to increase the
Certificate Principal Balance of the Class of Certificates with the Highest
Priority up to the extent of such Realized Losses previously allocated to that
Class of Certificates pursuant to Section 4.04. An amount equal to the
amount of any remaining Subsequent Recoveries shall be applied to increase
the
Certificate Principal Balance of the Class of Certificates with the next Highest
Priority, up to the amount of such Realized Losses previously allocated to
that
Class of Certificates pursuant to Section 4.04. Holders of such
Certificates will not be entitled to any distribution in respect of interest
on
the amount of such increases for any Accrual Period preceding the Distribution
Date on which such increase occurs. Any such increases shall be applied to
the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(g) On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow and amounts on deposit in the Net WAC Rate Carryover
Reserve Account as set forth above, the Trust Administrator shall distribute
the
amount on deposit in the Swap Account as follows:
(1) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement for such Distribution Date;
(2) to
the
Swap Provider, any Swap Termination Payment owed to the Swap Provider not due
to
a Swap Provider Trigger Event pursuant to the Interest Rate Swap
Agreement;
(3) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed after the distributions of the Interest Remittance Amount, on
a
pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(4) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class M-11 and Class M-12 Certificates,
in that order, the related Monthly Interest Distributable Amount and Unpaid
Interest Shortfall Amount, to the extent remaining undistributed after the
distributions of the Interest Remittance Amount and the Net Monthly Excess
Cashflow;
(5) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Principal Distribution Amount, remaining undistributed after distribution of
the
Net Monthly Excess Cashflow;
(6) sequentially
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class M-11 and Class M-12 Certificates,
in that order, in each case up to the related Allocated Realized Loss Amount
related to such Certificates for such Distribution Date remaining undistributed
after distribution of the Net Monthly Excess Cashflow;
(7) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, to the extent remaining undistributed after distributions are made
from
the Net WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(8) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class M-11 and Class M-12 Certificates,
in that order, the related Net WAC Rate Carryover Amount, to the extent
remaining undistributed after distributions are made from the Net WAC Rate
Carryover Reserve Account; and
(9) any
remaining amount to the Holders of the Class CE Certificates.
(h) On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow, amounts on deposit in the Net WAC Rate Carryover
Reserve Account and amounts on deposit in the Swap Account as set forth above,
the Trust Administrator shall distribute the amount on deposit in the Cap
Account as follows:
(1) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed after the distributions of the Interest Remittance Amount, on
a
pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(2) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class M-11 and Class M-12 Certificates,
in that order, the related Monthly Interest Distributable Amount and Unpaid
Interest Shortfall Amount, to the extent remaining undistributed after the
distributions of the Interest Remittance Amount and the Net Monthly Excess
Cashflow;
(3) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Principal Distribution Amount, remaining undistributed after distribution of
the
Net Monthly Excess Cashflow;
(4) sequentially
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class M-11 and Class M-12 Certificates,
in that order, in each case up to the related Allocated Realized Loss Amount
related to such Certificates for such Distribution Date remaining undistributed
after distribution of the Net Monthly Excess Cashflow;
(5) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, to the extent remaining undistributed after distributions are made
from
the Net WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(6) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class M-11 and Class M-12 Certificates,
in that order, the related Net WAC Rate Carryover Amount, to the extent
remaining undistributed after distributions are made from the Net WAC Rate
Carryover Reserve Account; and
(7) any
remaining amount to the Holders of the Class CE Certificates.
(i) Distributions
made with respect to each Class of Certificates on each Distribution Date shall
be allocated pro
rata
among
the outstanding Certificates in such Class based on their respective Percentage
Interests. Distributions in respect of each Class of Certificates on each
Distribution Date will be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in Section 4.01(d)
or Section 9.01 respecting the final distribution on such Class), based on
the aggregate Percentage Interest represented by their respective Certificates,
and shall be made by wire transfer of immediately available funds to the account
of any such Holder at a bank or other entity having appropriate facilities
therefor, if such Holder shall have so notified the Trust Administrator in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date and is the registered owner of Certificates having
an
initial aggregate Certificate Principal Balance or Notional Amount that is
in
excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the initial
Certificate Principal Balance or Notional Amount of such Class of Certificates,
or otherwise by check mailed by first class mail to the address of such Holder
appearing in the Certificate Register. The final distribution on each
Certificate will be made in like manner, but only upon presentment and surrender
of such Certificate at the Corporate Trust Office of the Trust Administrator
or
such other location specified in the notice to Certificateholders of such final
distribution.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Trust
Administrator, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(j) The
rights of the Certificateholders to receive distributions in respect of the
Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Agreement. None of the Holders of any Class of
Certificates, the Trustee, the Trust Administrator or the Master Servicer shall
in any way be responsible or liable to the Holders of any other Class of
Certificates in respect of amounts properly previously distributed on the
Certificates.
(k) Except
as
otherwise provided in Section 9.01, whenever the Trust Administrator
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Trust Administrator shall,
no
later than three (3) days before the related Distribution Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect
that:
(1) the
Trust
Administrator expects that the final distribution with respect to such Class
of
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Trust Administrator
therein specified, and
(2) no
interest shall accrue on such Certificates from and after the end of the related
Accrual Period.
Any
funds
not distributed to any Holder or Holders of Certificates of such Class on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust by the
Trust Administrator and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 4.01(e) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trust Administrator shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order
to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trust Administrator shall, directly or through an agent,
mail
a final notice to the remaining non-tendering Certificateholders concerning
surrender of their Certificates but shall continue to hold any remaining funds
for the benefit of non-tendering Certificateholders. The costs and expenses
of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in the Trust Fund. If within one year after
the final notice any such Certificates shall not have been surrendered for
cancellation, the Trust Administrator shall pay to UBS Securities LLC all such
amounts, and all rights of non-tendering Certificateholders in or to such
amounts shall thereupon cease. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trust Administrator as
a
result of such Certificateholder’s failure to surrender its Certificate(s) for
final payment thereof in accordance with this Section 4.01(d). Any such
amounts held in trust by the Trust Administrator shall be held in an Eligible
Account and the Trust Administrator may direct any depository institution
maintaining such account to invest the funds in one or more Permitted
Investments. All income and gain realized from the investment of funds deposited
in such accounts held in trust by the Trust Administrator shall be for the
benefit of the Trust Administrator; provided, however, that the Trust
Administrator shall deposit in such account the amount of any loss of principal
incurred in respect of any such Permitted Investment made with funds in such
accounts immediately upon the realization of such loss.
(l) Notwithstanding
anything to the contrary herein, (i) in no event shall the Certificate Principal
Balance of a Class A Certificate or a Mezzanine Certificate be reduced more
than
once in respect of any particular amount both (a) allocated to such Certificate
in respect of Realized Losses pursuant to Section 4.04 and (b) distributed
to the Holder of such Certificate in reduction of the Certificate Principal
Balance thereof pursuant to this Section 4.01 from Net Monthly Excess
Cashflow and (ii) in no event shall the Uncertificated Balance of a REMIC I
Regular Interest be reduced more than once in respect of any particular amount
both (a) allocated to such REMIC I Regular Interest in respect of Realized
Losses pursuant to Section 4.04 and (b) distributed on such REMIC I Regular
Interest in reduction of the Uncertificated Balance thereof pursuant to this
Section 4.01.
SECTION
4.02. Statements
to Certificateholders.
(a) On
each
Distribution Date, based, as applicable, on information provided to the Trust
Administrator by the Master Servicer (which in turn shall be based, as
applicable, on information provided to the Master Servicer by the Servicer),
the
Trust Administrator shall prepare and make available to each Holder of the
Regular Certificates, the Credit Risk Manager, the other parties hereto and
the
Rating Agencies, a statement as to the distributions to be made on such
Distribution Date containing the following information:
(1) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to principal, and the amount of the
distribution made on such Distribution Date to the Holders of the Class P
Certificates allocable to Prepayment Charges and Servicer Prepayment Charge
Payment Amounts;
(2) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to interest;
(3) the
fees
and expenses of the Trust accrued and paid on such Distribution Date and to
whom
such fees and expenses were paid;
(4) the
aggregate amount of Advances for such Distribution Date (including the general
purpose of such Advances);
(5) the
aggregate Stated Principal Balance of the Mortgage Loans and any REO Properties
as of the last day of the related Due Period or, with respect to any Mortgage
Loan as to which a Principal Prepayment is received, as of the last day of
the
related Prepayment Period;
(6) the
number, aggregate Stated Principal Balance, weighted average remaining term
to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of the
related Due Date;
(7) the
number and aggregate unpaid Stated Principal Balance of Mortgage Loans (a)
delinquent 30 to 59 days, (b) delinquent 60 to 89 days, (c) delinquent 90 or
more days, in each case, as of the last day of the preceding calendar month,
(d)
as to which foreclosure proceedings have been commenced and (e) with respect
to
which the related Mortgagor has filed for protection under applicable bankruptcy
laws, with respect to whom bankruptcy proceedings are pending or with respect
to
whom bankruptcy protection is in force;
(8) the
total
number and cumulative principal balance of all REO Properties as of the close
of
business on the last day of the preceding Prepayment Period;
(9) the
Delinquency Percentage;
(10) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(11) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, which will include the aggregate amount of Subsequent Recoveries
received during the Prepayment Period, the aggregate amount of Realized Losses
incurred since the Closing Date, which will include the cumulative amount of
Subsequent Recoveries received since the Closing Date;
(12) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(13) the
aggregate Certificate Principal Balance and Notional Amount, as applicable,
of
each Class of Certificates, after giving effect to the distributions, and
allocations of Realized Losses, made on such Distribution Date, separately
identifying any reduction thereof due to allocations of Realized
Losses;
(14) the
Certificate Factor for each such Class of Certificates applicable to such
Distribution Date;
(15) the
Monthly Interest Distributable Amount in respect of the Class A Certificates,
the Mezzanine Certificates and the Class CE Certificates for such Distribution
Date and the Unpaid Interest Shortfall Amount, if any, with respect to the
Class
A Certificates and the Mezzanine Certificates on such Distribution Date,
separately identifying any reduction thereof due to allocations of Realized
Losses, Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls;
(16) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the Servicer or the Master
Servicer;
(17) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(18) the
Net
Monthly Excess Cashflow, the Overcollateralization Target Amount, the
Overcollateralized Amount, the Overcollateralization Deficiency Amount and
the
Credit Enhancement Percentage for such Distribution Date;
(19) the
respective Pass-Through Rates applicable to the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates for such Distribution
Date
and the Pass-Through Rate applicable to the Class A Certificates and the
Mezzanine Certificates for the immediately succeeding Distribution
Date;
(20) the
Aggregate Loss Severity Percentage;
(21) whether
the Stepdown Date or a Trigger Event is in effect;
(22) the
total
cashflows received and the general sources thereof;
(23) the
Net
WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine
Certificates, if any, for such Distribution Date, the amount remaining unpaid
after reimbursements therefor on such Distribution Date;
(24) payments,
if any, made under the Cap Contract and the amount of any Net Swap Payments
or
Swap Termination Payments;
(25) if
applicable, material
modifications, extensions or waivers to Mortgage Loan terms, fees, penalties
or
payments during the preceding calendar month or that have become material over
time;
(26) the
applicable Record Dates, Accrual Periods and Determination Dates for calculating
distributions for such Distribution Date; and
(27) the
Significance Percentage.
The
Trust
Administrator will make such statement (and, at its option, any additional
files
containing the same information in an alternative format) available each month
to Certificateholders, the Master Servicer, the Servicer, the Depositor and
the
Rating Agencies via the Trust Administrator’s internet website. The Trust
Administrator’s internet website shall initially be located at
“▇▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling
the Trust Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that
are unable to use the above distribution options are entitled to have a paper
copy mailed to them via first class mail by calling the customer service desk
and indicating such. The Trust Administrator shall have the right to change
the
way such statements are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Trust
Administrator shall provide timely and adequate notification to all above
parties regarding any such changes. As a condition to access the Trust
Administrator’s internet website, the Trust Administrator may require
registration and the acceptance of a disclaimer. The Trust Administrator will
not be liable for the dissemination of information in accordance with this
Agreement. The Trust Administrator shall also be entitled to rely on but shall
not be responsible for the content or accuracy of any information provided
by
third parties for purposes of preparing the distribution date statement and
may
affix thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party
thereto).
In
the
case of information furnished pursuant to subclauses (1) and (2) above, the
amounts shall be expressed as a dollar amount per Single Certificate of the
relevant Class.
Within
a
reasonable period of time after the end of each calendar year, the Trust
Administrator shall, upon written request, forward to each Person who at any
time during the calendar year was a Holder of a Regular Certificate and the
NIMS
Insurer a statement containing the information set forth in subclauses (1)
and
(2) above, aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Trust
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trust
Administrator pursuant to any requirements of the Code as from time to time
are
in force.
Within
a
reasonable period of time after the end of each calendar year, the Trust
Administrator shall furnish to each Person who at any time during the calendar
year was a Holder of a Residual Certificate and the NIMS Insurer a statement
setting forth the amount, if any, actually distributed with respect to the
Residual Certificates, as appropriate, aggregated for such calendar year or
applicable portion thereof during which such Person was a
Certificateholder.
The
Trust
Administrator shall, upon request, furnish to each Certificateholder and the
NIMS Insurer, during the term of this Agreement, such periodic, special, or
other reports or information, whether or not provided for herein, as shall
be
reasonable with respect to the Certificateholder, or otherwise with respect
to
the purposes of this Agreement, all such reports or information to be provided
at the expense of the Certificateholder in accordance with such reasonable
and
explicit instructions and directions as the Certificateholder may provide.
For
purposes of this Section 4.02, the Trust Administrator’s duties are limited
to the extent that the Master Servicer receives timely reports as required
from
the Servicer.
On
each
Distribution Date the Trust Administrator shall provide Intex Solutions, Inc.
and Bloomberg Financial Markets, L.P. (“Bloomberg”) CUSIP level factors for each
class of Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Trust Administrator and Bloomberg.
(b) For
each
Distribution Date, through and including the Distribution Date in December
2006,
the Trust Administrator shall calculate the Significance Percentage of the
Interest Rate Swap Agreement. If on any such Distribution Date, the Significance
Percentage is equal to or greater than 9%, the Trust Administrator shall
promptly notify the Depositor and the Depositor, on behalf of the Trust
Administrator, shall obtain the financial information required to be delivered
by the Swap Provider pursuant to the terms of the Interest Rate Swap Agreement.
If, on any succeeding Distribution Date through and including the Distribution
Date in December 2006, the Significance Percentage is equal to or greater than
10%, the Trust Administrator shall promptly notify the Depositor and the
Depositor shall, within 5 Business Days of such Distribution Date, deliver
to
the Trust Administrator the financial information provided to it by the Swap
Provider for inclusion in the Form 10-D relating to such Distribution Date.
If
on any Distribution Date after December 2006, the Significance Percentage is
greater than 10%, the Trust Administrator shall include the Significance
Percentage on the statement to Certificateholders for the related Distribution
Date.
With
respect to any Distribution Date, for purposes of determining the numerator
of
the fraction that constitutes the Significance Percentage, the interest rate
used to project future amounts payable under the Interest Rate Swap Agreement
shall be equal to the highest rate reflected on the Implied Forwards Curve
available at Bloomberg Financial Markets, L.P. for the remaining term of the
Interest Rate Swap Agreement plus the percentage equivalent of a fraction,
the
numerator of which is 3.00% and the denominator of which is the number of
remaining Distribution Dates on which the Swap Administrator is entitled to
receive payments under the Interest Rate Swap Agreement. The discount rate
used
to determine the net present value of the estimated future amounts payable
shall
be equal to the lowest rate reflected on the Implied Forwards Curve. The Trust
Administrator shall obtain the Implied Forwards Curve from Bloomberg within
15
Business Days of the respective Distribution Date. To determine the Implied
Forwards Curve for such Distribution Date, the Trust Administrator shall take
the following steps on the Bloomberg terminal: (1) the following keystrokes
shall be entered: fwcv <enter>, 27 <enter>, 3 <enter>; (2) the
Forwards shall be set to “1-Mo”; (3) the Intervals shall be set to “1-Mo”; and
(4) the Points shall be set to equal the remaining term of the Interest Rate
Swap Agreement in months and the Trust Administrator shall click <enter>.
For purposes of estimating future amounts payable under the Interest Rate Swap
Agreement, the accrual period for both the Fixed Amounts and the Floating
Amounts (as defined in the Confirmation) shall be assumed to be a 30-day period
in a 360-day year.
SECTION
4.03. Remittance
Reports; Advances.
(a) Not
later
than the 17th
day of
each calendar month or if such 17th
day is
not a Business Day, the following Business Day, the Servicer shall deliver
to
the Trust Administrator, the Credit Risk Manager and the NIMS Insurer by
telecopy or electronic mail (or by such other means as the Servicer and the
Trust Administrator may agree from time to time) a Remittance Report in a format
attached as Exhibit Q-2 or in any other format as mutually agreed to between
the
Servicer and the Trust Administrator, containing such information regarding
the
Mortgage Loans as is needed by the Trust Administrator to perform its duties
as
set forth in Section 4.01 and 4.02 hereof. Such Remittance Report shall include
a delinquency report substantially in the form set forth in Exhibit Q-1 and
a
realized loss report substantially in the form set forth in Exhibit Q-3 (or
in
either case, such other format as mutually agreed to between the Servicer and
the Trust Administrator). Not later than the 17th
day of
each calendar month or if such 17th
day is
not a Business Day, the following Business Day, the Servicer shall deliver
or
cause to be delivered to the Trust Administrator in addition to the information
provided on the Remittance Report, such other information reasonably available
to it with respect to the Mortgage Loans as the Trust Administrator may
reasonably require to perform the calculations necessary to make the
distributions contemplated by Section 4.01 and to prepare the statements to
Certificateholders contemplated by Section 4.02. The Trust Administrator shall
not be responsible to recompute, recalculate or verify any information provided
to it by the Servicer.
(b) The
amount of Advances to be made by the Servicer for any Distribution Date shall
equal, subject to Section 4.03(d), the sum of (i) the aggregate amount of
Monthly Payments (net of the related Servicing Fee), due during the related
Due
Period in respect of the Mortgage Loans (other than with respect to any REO
Property or Balloon Mortgage Loan as described below), which Monthly Payments
were delinquent on a contractual basis as of the close of business on the
related Determination Date; and (ii) with respect to each REO Property, which
REO Property was acquired during or prior to the related Due Period and as
to
which REO Property an REO Disposition did not occur during the related Due
Period, an amount equal to the excess, if any, of the REO Imputed Interest
on
such REO Property for the most recently ended calendar month, over the net
income from such REO Property transferred to the Distribution Account pursuant
to Section 3.23 for distribution on such Distribution Date. For purposes of
the
preceding sentence, the Monthly Payment on each Balloon Mortgage Loan with
a
delinquent Balloon Payment is equal to the assumed monthly payment that would
have been due on the related Due Date based on the original principal
amortization schedule for such Balloon Mortgage Loan. In addition, the Servicer
shall not be required to advance any Relief Act Interest Shortfalls or to cover
Prepayment Interest Shortfalls in excess of its obligations under Section
3.24.
On
or
before 12:00 noon, New York time on the Servicer Remittance Date, the Servicer
shall remit in immediately available funds to the Trust Administrator for
deposit in the Distribution Account an amount equal to the aggregate amount
of
Advances, if any, to be made in respect of the Mortgage Loans and REO Properties
for the related Distribution Date either (i) from its own funds or (ii) from
the
Collection Account, to the extent of funds held therein for future distribution
(in which case it will cause to be made an appropriate entry in the records
of
Collection Account that amounts held for future distribution have been, as
permitted by this Section 4.03, used by the Servicer in discharge of any such
Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the
total amount of Advances to be made by the Servicer with respect to the Mortgage
Loans and REO Properties. Any amounts held for future distribution used by
the
Servicer to make an Advance as permitted in the preceding sentence shall be
appropriately reflected in the Servicer’s records and replaced by the Servicer
by deposit in the Collection Account on or before any future Servicer Remittance
Date to the extent that the Available Funds for the related Distribution Date
(determined without regard to Advances to be made on the Servicer Remittance
Date) shall be less than the total amount that would be distributed to the
Classes of Certificateholders pursuant to Section 4.01 on such Distribution
Date
if such amounts held for future distributions had not been so used to make
Advances. The Trust Administrator will provide notice to the Servicer and the
NIMS Insurer by telecopy by the close of business on any Servicer Remittance
Date in the event that the amount remitted by the Servicer to the Trust
Administrator on such date is less than the Advances required to be made by
the
Servicer for the related Distribution Date, as set forth in the related
Remittance Report.
(c) The
obligation of the Servicer to make such Advances is mandatory, notwithstanding
any other provision of this Agreement but subject to (d) below and, with respect
to any Mortgage Loan, shall continue until the Mortgage Loan is paid in full
or
until all Liquidation Proceeds thereon have been recovered, or a Final Recovery
Determination has been made thereon.
(d) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by the Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance or Nonrecoverable
Servicing Advance, respectively. The determination by the Servicer that it
has
made a Nonrecoverable Advance or a Nonrecoverable Servicing Advance or that
any
proposed Advance or Servicing Advance, if made, would constitute a
Nonrecoverable Advance or Nonrecoverable Servicing Advance, respectively, shall
be evidenced by an Officers’ Certificate of the Servicer delivered to the
Depositor, the NIMS Insurer, the Credit Risk Manager and the Trustee.
Furthermore, the Servicer shall not be required to advance Relief Act Interest
Shortfalls.
(e) In
the
event the Servicer fails to make any Advance required to be made by it pursuant
to this Section 4.03 and such failure is not remedied within the applicable
cure
period pursuant to Section 7.01(a), then, pursuant to Section 7.01(a), the
Servicer will be terminated and, in accordance with Sections 7.01(a) and 7.02,
the Master Servicer (in its capacity as successor servicer) or another successor
servicer shall be required to make such Advance on the Distribution Date with
respect to which the Servicer was required to make such Advance, subject to
the
Master Servicer’s (or other successor servicer’s) determination of
recoverability. The Master Servicer (or other successor servicer) shall not
be
required to make any Advance to cover any Relief Act Interest Shortfall on
any
Mortgage Loan. If the Master Servicer (or other successor servicer) is required
to make any Advances, such advances may be made by it in the manner set forth
under (b) above.
SECTION
4.04. Allocation
of Realized Losses.
(a) Not
later
than the 18th
day of
the calendar month in which such Distribution Date occurs or if such
18th
day is
not a Business Day, the following Business Day, the Servicer shall determine
as
to each Mortgage Loan and REO Property: (i) the total amount of Realized Losses,
if any, incurred in connection with any Final Recovery Determinations made
during the related Prepayment Period and (ii) the respective portions of such
Realized Losses allocable to interest and allocable to principal. Not later
than
the 18th
day of
the calendar month in which such Distribution Date occurs or if such
18th
day is
not a Business Day, the following Business Day, the Servicer shall also
determine as to each Mortgage Loan: (i) the total amount of Realized Losses,
if
any, incurred in connection with any Deficient Valuations made during the
related Prepayment Period and (ii) the total amount of Realized Losses, if
any,
incurred in connection with Debt Service Reductions in respect of Monthly
Payments due during the related Due Period. The information described in the
preceding sentence that is to be supplied by the Servicer shall be evidenced
by
an Officers’ Certificate delivered to the Trust Administrator by the Servicer
not later than the 18th
day of
the calendar month in which such Distribution Date occurs or if such eighteenth
day is not a Business Day, the following Business Day, immediately following
the
end of the Prepayment Period during which any such Realized Loss was
incurred.
(b) All
Realized Losses on the Mortgage Loans shall be allocated by the Trust
Administrator on each Distribution Date as follows: first, to Net Monthly Excess
Cashflow; second, to the Class CE Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; third, to the Class M-12 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero;
fourth, to the Class M-11 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; fifth, to the Class M-10 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; sixth,
to
the Class M-9 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; seventh, to the Class M-8 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eighth, to
the
Class M-7 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; ninth, to the Class M-6 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; tenth, to the Class M-5
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; eleventh, to the Class M-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; twelfth, to the Class M-3
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; thirteenth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and fourteenth, to the
Class
M-1 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero. All Realized Losses to be allocated to the Certificate
Principal Balances of all Classes on any Distribution Date shall be so allocated
after the actual distributions to be made on such date as provided above. All
references above to the Certificate Principal Balance of any Class of
Certificates shall be to the Certificate Principal Balance of such Class
immediately prior to the relevant Distribution Date, before reduction thereof
by
any Realized Losses, in each case to be allocated to such Class of Certificates,
on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof by
the
amount so allocated; any allocation of Realized Losses to a Class CE Certificate
shall be made by reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(a)(5)(iv). No allocations of any Realized Losses
shall be made to the Certificate Principal Balances of the Class A Certificates
or the Class P Certificates.
As
used
herein, an allocation of a Realized Loss on a “pro
rata
basis”
among two or more specified Classes of Certificates means an allocation on
a
pro
rata
basis,
among the various Classes so specified, to each such Class of Certificates
on
the basis of their then outstanding Certificate Principal Balances prior to
giving effect to distributions to be made on such Distribution Date. All
Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
(c) All
Realized Losses on the Mortgage Loans shall be allocated by the Trust
Administrator on each Distribution Date first, to REMIC I Regular Interest
I
until the Uncertificated Balance of such REMIC I Regular Interest has been
reduced to zero and second, to REMIC I Regular Interest I-1-A through REMIC
I
Regular Interest I-43-B, starting with the lowest numerical denomination until
such REMIC I Regular Interest has been reduced to zero, provided that, for
REMIC
I Regular Interests with the same numerical denomination, such Realized Losses
shall be allocated pro rata between such REMIC I Regular Interests.
(d) All
Realized Losses on the Mortgage Loans shall be allocated by the Trust
Administrator on each Distribution Date to the following REMIC II Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Interest payable to the REMIC II Regular Interest II-LTAA and REMIC II Regular
Interest II-LTZZ up to an aggregate amount equal to the REMIC II Interest Loss
Allocation Amount, 98% and 2%, respectively; second, to the Uncertificated
Balances of the REMIC II Regular Interest II-LTAA and REMIC II Regular Interest
II-LTZZ up to an aggregate amount equal to the REMIC II Principal Loss
Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular Interest
II-LTM12 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively,
until the Uncertificated Balance of REMIC II Regular Interest II-LTM12 has
been
reduced to zero; fourth, to the Uncertificated Balances of REMIC II Regular
Interest II-LTAA, REMIC II Regular Interest II-LTM11 and REMIC II Regular
Interest II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC II Regular Interest II-LTM11 has been reduced to zero; fifth, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular
Interest II-LTM10 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM10 has been reduced to zero; sixth, to the Uncertificated Balances of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM9 and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM9 has been reduced
to
zero; seventh, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTM8 and REMIC II Regular Interest
II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of
REMIC
II Regular Interest II-LTM8 has been reduced to zero; eighth, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular
Interest II-LTM7 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM7 has been reduced to zero; ninth, to the Uncertificated Balances of
REMIC
II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM6 and REMIC II
Regular Interest III-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM6 has been reduced
to
zero; tenth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTM5 and REMIC II Regular Interest
II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of
REMIC
II Regular Interest II-LTM5 has been reduced to zero; eleventh, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular
Interest II-LTM4 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM4 has been reduced to zero; twelfth, to the Uncertificated Balances of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM3 and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM3 has been reduced
to
zero; thirteenth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTM2 and REMIC II Regular Interest
II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of
REMIC
II Regular Interest II-LTM2 has been reduced to zero; and fourteenth, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular
Interest II-LTM1 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM1 has been reduced to zero.
SECTION
4.05. Compliance
with Withholding Requirements.
Notwithstanding
any other provision of this Agreement, the Trust Administrator shall comply
with
all federal withholding requirements respecting payments to Certificateholders
of interest or original issue discount that the Trust Administrator reasonably
believes are applicable under the Code. The consent of Certificateholders shall
not be required for such withholding. In the event the Trust Administrator
does
withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trust Administrator shall indicate the amount withheld to
such
Certificateholders.
SECTION
4.06. Exchange
Commission Filings; Additional Information.
(a) (i)
Within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Trust Administrator shall, in accordance with
industry standards, prepare and file with the Commission via the Electronic
Data
Gathering and Retrieval System (“▇▇▇▇▇”), a distribution report on Form 10-D,
signed by the Master Servicer, with a copy of the monthly statement to be
furnished by the Trust Administrator to the Certificateholders for such
Distribution Date attached hereto. Any disclosure in addition to the monthly
statement that is required to be included on Form 10-D (“Additional Form 10-D
Disclosure”) shall, pursuant to the paragraph immediately below, be reported by
the parties set forth on Exhibit P and directed and approved by the Depositor,
and the Trust Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, absent
such reporting, direction and approval.
(ii) For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
within 5 calendar days after the related Distribution Date, (i) the parties
set
forth in Exhibit P shall be required to provide, pursuant to Section 4.06(a)(v)
below, to the Trust Administrator (by email at ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
and by
facsimile at 410-715-2380) and the Depositor, to the extent known, in
▇▇▇▇▇-compatible format, or in such other format as otherwise agreed upon by
the
Trust Administrator, the Depositor and such party, the form and substance of
any
Additional Form 10-D Disclosure, if applicable, (ii) include with such
Additional Form 10-D Disclosure an Additional Disclosure Notification in the
form attached hereto as Exhibit P and (iii) the Depositor will approve, as
to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible
for any reasonable fees and expenses assessed or incurred by the Trust
Administrator in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this Section.
After
preparing the Form 10-D, the Trust Administrator shall forward electronically
a
draft copy of the Form 10-D to the Master Servicer and to the Depositor for
review, only to the extent that the Form 10-D contains Additional Form 10-D
Disclosure. No later than 2 Business Days prior to the 15th
calendar
day after the related Distribution Date, a duly authorized officer of the Master
Servicer shall sign the Form 10-D and return an electronic or fax copy of such
signed Form 10-D (with an original executed hard copy to follow by overnight
mail) to the Trust Administrator. If a Form 10-D cannot be filed on time or
if a
previously filed Form 10-D needs to be amended, the Trust Administrator will
follow the procedures set forth in Section 4.06(a)(vi). Promptly (but no later
than 1 Business Day) after filing with the Commission, the Trust Administrator
will make available on its internet website a final executed copy of each Form
10-D. The parties to this Agreement acknowledge that the performance by the
Trust Administrator of its duties under Sections 4.06(a)(i), (ii) and (v)
related to the timely preparation and filing of Form 10-D is contingent upon
such parties strictly observing all applicable deadlines in the performance
of
their duties under such Sections. The Trust Administrator shall have no
liability for any loss, expense, damage or claim arising out of or with respect
to any failure to properly prepare and/or timely file such Form 10-D, where
such
failure results from the Trust Administrator’s inability or failure to receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-D, not resulting from its
own negligence, bad faith or willful misconduct.
(iii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, and to the extent it receives the Form 8-K Disclosure Information
described below, the Trust Administrator shall prepare and file on behalf of
the
Trust a Form 8-K, as required by the Exchange Act, provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall, pursuant to the paragraph immediately below, be reported by
the parties set forth on Exhibit P and directed and approved by the Depositor,
and the Trust Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information absent
such reporting, direction and approval.
For
so
long as the Trust is subject to the Exchange Act reporting requirements, no
later than 12:00 noon Eastern Standard Time on the 2nd
Business
Day after the occurrence of a Reportable Event (i) the parties set forth in
Exhibit P shall be required pursuant to Section 4.06(a)(v) below to provide
to
the Trust Administrator (by e-mail at ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
and by
facsimile at (▇▇▇) ▇▇▇-▇▇▇▇) and the Depositor, to the extent known, in
▇▇▇▇▇-compatible format, or in such other format as otherwise agreed upon by
the
Trust Administrator, the Depositor and such party, the form and substance of
any
Form 8-K Disclosure Information, if applicable, (ii) include with such
Additional Form 8-K Disclosure an Additional Disclosure Notification in the
form
attached hereto as Exhibit P and (iii) the Depositor will approve, as to form
and substance, or disapprove, as the case may be, the inclusion of the Form
8-K
Disclosure Information on Form 8-K. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trust Administrator
in
connection with including any Form 8-K Disclosure Information on Form 8-K
pursuant to this Section.
After
preparing the Form 8-K, the Trust Administrator shall forward electronically
a
draft copy of the Form 8-K to the Depositor and the Master Servicer for review.
No later than 12:00 noon Eastern Standard time on the 4th
Business
Day after the Reportable Event, a duly authorized officer of the Master Servicer
shall sign the Form 8-K and return an electronic or fax copy of such signed
Form
8-K (with an original executed hard copy to follow by overnight mail) to the
Trust Administrator. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trust Administrator will follow the
procedures set forth in Section 4.06(a)(vi). Promptly (but no later than 1
Business Day) after filing with the Commission, the Trust Administrator will
make available on its internet website a final executed copy of each Form 8-K.
The parties to this Agreement acknowledge that the performance by the Trust
Administrator of its duties under this Section 4.06(a)(iii) related to the
timely preparation and filing of Form 8-K is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section 4.06(a)(iii). The Trust Administrator shall have no liability
for any loss, expense, damage or claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 8-K, where such failure
results from the Trust Administrator’s inability or failure to receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
(iv) (A)
On or
prior to 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it
being understood that the fiscal year for the Trust ends on December
31st
of each
year), commencing in March 2007, the Trust Administrator shall prepare and
file
on behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trust Administrator within
the applicable time frames set forth in this Agreement, (i) an annual compliance
statement for the Servicer, the Master Servicer, the Trust Administrator and
any
Sub-Servicer, subcontractor or other Person engaged by it and satisfying any
of
the criteria set forth in Item 1108(a)(i)-(iii) of Regulation AB, as described
under Section 3.20, (ii)(A) the annual reports on assessment of compliance
with
Servicing Criteria for the Servicer, the Master Servicer, the Trust
Administrator and each Sub-Servicer, subcontractor or other Person determined
to
be “participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, as described under Section 3.21, and (B) if the Servicer, the
Master Servicer, the Trust Administrator, any Sub-Servicer, any such
subcontractor or any other Person, in its report on assessment of compliance
with the Relevant Servicing Criteria described under Section 3.21, identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any such party’s report on assessment of compliance with
Servicing Criteria described under Section 3.21 is not included as an exhibit
to
such Form 10-K, disclosure that such report is not included and an explanation
why such report is not included, (iii)(A) the registered public accounting
firm
attestation report for the Servicer, the Master Servicer, the Trust
Administrator, any Sub-Servicer, subcontractor or other Person determined to
be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, as described under Section 3.21, and (B) if any registered public
accounting firm attestation report described under Section 3.21 identifies
any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification”) as
described below. Any disclosure or information in addition to (i) through (iv)
above that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall, pursuant to the paragraph immediately below, be reported by
the parties set forth on Exhibit P and directed and approved by the Depositor,
and the Trust Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure absent
such reporting, direction and approval.
No
later
than March 15th
of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, (i) the parties set forth in Exhibit P shall be required
to
provide pursuant to Section 4.06(a)(v) below to the Trust Administrator (by
email at ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
and by
facsimile at 410-715-2380) and the Depositor, to the extent known, in
▇▇▇▇▇-compatible format, or in such other format as otherwise agreed upon by
the
Trust Administrator, the Depositor and such party, the form and substance of
any
Additional Form 10-K Disclosure, if applicable, (ii) include with such
Additional Form 10-K Disclosure, an Additional Disclosure Notification in the
form attached hereto as Exhibit P and (iii) the Depositor will approve, as
to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K. The Depositor will be responsible
for any reasonable fees and expenses assessed or incurred by the Trust
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this Section.
After
preparing the Form 10-K, the Trust Administrator shall forward electronically
a
draft copy of the Form 10-K to the Master Servicer and the Depositor for review,
only to the extent that the Form 10-K contains Additional Form 10-K Disclosure.
No later than the end of business New York City time on the 4th
Business
Day prior to the 10-K Filing Deadline, a senior officer of the Master Servicer
shall sign the Form 10-K and return an electronic or fax copy of such signed
Form 10-K (with an original executed hard copy to follow by overnight mail)
to
the Trust Administrator. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Trust Administrator will
follow the procedures set forth in Section 4.06(a)(vi). Promptly (but no later
than 1 Business Day) after filing with the Commission, the Trust Administrator
will make available on its internet website a final executed copy of each Form
10-K. The parties to this Agreement acknowledge that the performance by the
Trust Administrator of its duties under Section 4.06(a)(iv) and Section
4.06(a)(v) related to the timely preparation and filing of Form 10-K is
contingent upon such parties strictly observing all applicable deadlines in
the
performance of their duties under such Sections, Section 3.20 and Section 3.21.
The Trust Administrator shall have no liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare and/or
timely file such Form 10-K, where such failure results from the Trust
Administrator’s inability or failure to receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
Each
Form
10-K shall include a certification (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification”), exactly
as set forth in Exhibit J-1 attached hereto, required to be included therewith
pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Servicer shall provide to the Person
who
signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the “Certifying Person”), by March
15th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act, a certification (a “Back-Up Certification”), in the form attached hereto as
Exhibit J-2, upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity’s officers, directors and
Affiliates (collectively with the Certifying Person, “Certification Parties”)
can reasonably rely. A senior officer of the Master Servicer shall serve as
the
Certifying Person on behalf of the Trust. In the event the Servicer, the Master
Servicer, the Trust Administrator or any Sub-Servicer, subcontractor or other
Person determined to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, as described under Section 3.21 is
terminated or resigns pursuant to the terms of this Agreement, or any other
applicable agreement, as the case may be, such party shall provide a Back-Up
Certification to the Certifying Person pursuant to this Section 4.06(a)(iv)
with
respect to the period of time it was subject to this Agreement or any other
applicable agreement, as the case may be.
(v) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trust Administrator’s obligation to
include such Additional Information in the applicable Exchange Act report is
subject to receipt from the entity that is indicated in Exhibit P as the
responsible party for providing that information, if other than the Trust
Administrator, as and when required as described in Section 4.06(a)(ii) through
(iv) above. Each of the Master Servicer, the Servicer and Depositor hereby
agree
to notify and to provide, to the extent known, to the Trust Administrator and
the Depositor, all Additional Disclosure relating to the Trust Fund, with
respect to which such party is the responsible party for providing that
information, as indicated in Exhibit P hereof. The Swap Provider will be
obligated pursuant to the Swap Agreement to provide to the Trust Administrator
any information that may be required to be included in any Form 10-D, Form
8-K
or Form 10-K. The Servicer shall be responsible for determining the pool
concentration applicable to any Sub-Servicer or originator at any time, for
purposes of disclosure as required by Items 1108 and 1110 of Regulation
AB.
(vi) On
or
prior to January 30 of the first year in which the Trust Administrator is able
to do so under applicable law, the Trust Administrator shall prepare and file
a
Form 15 Suspension Notification relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act.
In
the
event that the Trust Administrator is unable to timely file with the Commission
all or any required portion of any Form 8-K, Form 10-D or Form 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or was delivered to it after the delivery deadlines set
forth in this Agreement or for any other reason, the Trust Administrator will
promptly notify the Depositor and the Master Servicer. In the case of Form
10-D
and Form 10-K, the Depositor and the Master Servicer will cooperate to prepare
and file a Form 12b-25 and a Form 10-D/A and Form 10-K/A as applicable, pursuant
to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Trust
Administrator will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such disclosure
information on the next succeeding Form 10-D. In the event that any previously
filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the Trust
Administrator will notify the Depositor and the Master Servicer and such parties
will cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A;
provided, the Trust Administrator will only be required to notify the Depositor
of any amendment to any Form 10-D and Form 10-K where such amendment contains
Additional Disclosure. Any Form 15, Form 12b-25 or any amendment to Form 8-K
or
Form 10-D shall be signed by a duly authorized officer of the Master Servicer.
The Depositor and the Master Servicer acknowledge that the performance by the
Trust Administrator of its duties under this Section 4.06(a)(vi) related to
the
timely preparation and filing of Form 15, a Form 12b-25 or any amendment to
Form
8-K, Form 10-D or Form 10-K is contingent upon the Master Servicer and the
Depositor performing their duties under this Section. The Trust Administrator
shall have no liability for any loss, expense, damage or claim arising out
of or
with respect to any failure to properly prepare and/or timely file any such
Form
15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form 10-K, where
such failure results from the Trust Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 15, Form 12b-25 or any
amendments to Form 8-K, Form 10-D or Form 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trust Administrator, from time
to
time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Trust
Administrator reasonably deems appropriate to prepare and file all necessary
reports with the Commission. The Trust Administrator shall have no
responsibility to file any items other than those specified in this Section
4.06; provided, however, the Trust Administrator will cooperate with the
Depositor in connection with any additional filings with respect to the Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees and expenses
incurred by the Trust Administrator in connection with this Section 4.06 shall
not be reimbursable from the Trust Fund.
(b) (i)
The
Trust Administrator shall indemnify and hold harmless the Depositor and its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(a) a
breach of the Trust Administrator’s obligations under this Section 4.06 or the
Trust Administrator’s negligence, bad faith or willful misconduct in connection
therewith or (b) any material misstatement or omission in the Annual Statement
of Compliance and the Assessment of Compliance delivered by the Trust
Administrator pursuant to Section 3.20 and Section 3.21.
(ii) The
Depositor shall indemnify and hold harmless the Trust Administrator and the
Master Servicer and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Depositor under
this Section 4.06 or the Depositor’s negligence, bad faith or willful misconduct
in connection therewith.
(iii) The
Master Servicer shall indemnify and hold harmless the Trust Administrator and
the Depositor and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (a) a breach of the obligations of the Master
Servicer under this Section 4.06 or the Master Servicer’s negligence, bad faith
or willful misconduct in connection therewith or (b) any material misstatement
or omission in the Statement as to Compliance delivered by the Master Servicer
pursuant to Section 3.20 or the Assessment of Compliance delivered by the Master
Servicer pursuant to Section 3.21.
(iv) The
Servicer shall indemnify and hold harmless the Master Servicer, Trust
Administrator and the Depositor and their respective officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon (a) a breach of the obligations of
the
Servicer under this Section 4.06 and (b) any
material misstatement or omission in the Annual Statement of Compliance
delivered by the Servicer pursuant to Section 3.20 or the Assessment of
Compliance delivered by the Servicer pursuant to Section 3.21.
(v) If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, the Master Servicer or the Trust Administrator, as
applicable, then the defaulting party, in connection with a breach of its
respective obligations under this Section 4.06 or its respective negligence,
bad
faith or willful misconduct in connection therewith, agrees that it shall
contribute to the amount paid or payable by the other parties as a result of
the
losses, claims, damages or liabilities of the other party in such proportion
as
is appropriate to reflect the relative fault and the relative benefit of the
respective parties.
(c) Nothing
shall be construed from the foregoing subsections (a) and (b) to require the
Trust Administrator or any officer, director or Affiliate thereof to sign any
Form 10-K or any certification contained therein. Furthermore, the inability
of
the Trust Administrator to file a Form 10-K as a result of the lack of required
information as set forth in Section 4.06(a) or required signatures on such
Form
10-K or any certification contained therein shall not be regarded as a breach
by
the Trust Administrator of any obligation under this Agreement.
(d) Notwithstanding
the provisions of Section 11.01, this Section 4.06 may be amended without the
consent of the Certificateholders.
SECTION
4.07. Net
WAC
Rate Carryover Reserve Account.
No
later
than the Closing Date, the Trust Administrator shall establish and maintain
with
itself a separate, segregated trust account titled, “▇▇▇▇▇ Fargo Bank, N.A. as
Trust Administrator, in trust for the registered holders of MASTR Asset Backed
Securities Trust 2006-AM1, Mortgage Pass-Through Certificates, Series
2006-AM1—Net WAC Rate Carryover Reserve Account.” All amounts deposited in the
Net WAC Rate Carryover Reserve Account shall be distributed to the Holders
of
the Class A Certificates and/or the Mezzanine Certificates in the manner set
forth in Section 4.01.
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to the Class A Certificates and/or the Mezzanine Certificates, the Trust
Administrator has been directed by the Class CE Certificateholders to, and
therefore will, deposit into the Net WAC Rate Carryover Reserve Account the
amounts described in Section 4.01(e)(5), rather than distributing such
amounts to the Class CE Certificateholders. On each such Distribution Date,
the
Trust Administrator shall hold all such amounts for the benefit of the Holders
of the Class A Certificates and the Mezzanine Certificates, and will distribute
such amounts to the Holders of the Class A Certificates and/or the Mezzanine
Certificates in the amounts and priorities set forth in
Section 4.01(a).
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Net WAC Rate Carryover Reserve Account be
disregarded as an entity separate from the Holder of the Class CE Certificates
unless and until the date when either (a) there is more than one Class CE
Certificateholder or (b) any Class of Certificates in addition to the Class
CE
Certificates is recharacterized as an equity interest in the Net WAC Rate
Carryover Reserve Account for federal income tax purposes, in which case it
is
the intention of the parties hereto that, for federal and state income and
state
and local franchise tax purposes, the Supplemental Interest Trust be treated
as
a grantor trust. All
amounts deposited into the Net WAC Rate Carryover Reserve Account shall be
treated as amounts distributed by REMIC III to the Holder of the Class CE
Interest and by REMIC IV to the Holder of the Class CE Certificates. The Net
WAC
Rate Carryover Reserve Account will be an “outside reserve fund” within the
meaning of Treasury Regulation Section 1.860G-2(h). Upon the termination of
the
Trust, or the payment in full of the Class A and the Mezzanine Certificates,
all
amounts remaining on deposit in the Net WAC Rate Carryover Reserve Account
will
be released by the Trust and distributed to the Seller or its designee. The
Net
WAC Rate Carryover Reserve Account will be part of the Trust but not part of
any
REMIC and any payments to the Holders of the Class A and the Mezzanine
Certificates of Net WAC Rate Carryover Amounts will not be payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class CE Certificate, each Class CE Certificateholder hereby agrees
to direct the Trust Administrator, and the Trust Administrator hereby is
directed, to deposit into the Net WAC Rate Carryover Reserve Account the amounts
described above on each Distribution Date as to which there is any Net WAC
Rate
Carryover Amount rather than distributing such amounts to the Class CE
Certificateholders. By accepting a Class CE Certificate, each Class CE
Certificateholder further agrees that such direction is given for good and
valuable consideration, the receipt and sufficiency of which is acknowledged
by
such acceptance.
Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
SECTION
4.08. Swap
Account.
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit the Interest Rate Swap
Agreement. The Supplemental Interest Trust shall be maintained by the
Supplemental
Interest Trust Trustee.
No
later than the Closing Date, the Supplemental Interest Trust Trustee shall
establish and maintain with itself a separate, segregated trust account titled,
“▇▇▇▇▇ Fargo Bank, N.A. as Supplemental Interest Trust Trustee, in trust for
the
registered holders of MASTR Asset Backed Securities Trust 2006-AM1, Mortgage
Pass-Through Certificates, Series 2006-AM1—Swap Account.” Such account shall be
an Eligible Account and funds on deposit therein shall be held separate and
apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Supplemental Interest Trust Trustee
held
pursuant to this Agreement. Amounts therein shall be held
uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the
Supplemental Interest Trust Trustee shall deposit into the Swap Account: (i)
the
amount of any Net Swap Payment or Swap Termination Payment (other than any
Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed to the
Swap Provider (after taking into account any upfront payment received from
the
counterparty to a replacement interest rate swap agreement) from funds collected
and received with respect to the Mortgage Loans prior to the determination
of
Available Funds and (ii) amounts received by the Supplemental Interest Trust
Trustee from the Swap Provider, for distribution pursuant to Section 4.01(g).
For federal income tax purposes, any amounts paid to the Swap Provider on each
Distribution Date shall first be deemed paid to the Swap Provider in respect
of
REMIC VI Regular Interest SWAP-IO to the extent of the amount distributable
on
REMIC VI Regular Interest SWAP-IO on such Distribution Date, and any remaining
amount shall be deemed paid to the Swap Provider in respect of a Class IO
Distribution Amount (as defined below).
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the Holder of the Class CE Certificates unless and
until
the date when either (a) there is more than one Class CE Certificateholder
or
(b) any Class of Certificates in addition to the Class CE Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Supplemental Interest Trust be treated as a grantor
trust.
(d) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Supplemental Interest Trust Trustee, any obligation of the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
shall
be deemed to be an obligation of the Supplemental Interest Trust.
(e) The
Trust
Administrator shall treat the Holders of Certificates (other than the Class
P,
Class CE and Class R Certificates) as having entered into a notional principal
contract with respect to the Holders of the Class CE Certificates. Pursuant
to
each such notional principal contract, all Holders of Certificates (other than
the Class P, Class CE and Class R Certificates) shall be treated as having
agreed to pay, on each Distribution Date, to the Holder of the Class CE
Certificates an aggregate amount equal to the excess, if any, of (i) the amount
payable on such Distribution Date on the REMIC III Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on
such
Class of Certificates on such Distribution Date (such excess, a “Class IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the excess of (a) the amount of interest otherwise
payable to such Certificates over (ii) the amount of interest payable to such
Certificates at a per annum rate equal to the Net WAC Pass-Through Rate, and
a
Class IO Distribution Amount payable from principal collections shall be
allocated to the most subordinate Class of Certificates with an outstanding
principal balance to the extent of such balance. In addition, pursuant to such
notional principal contract, the Holder of the Class CE Certificates shall
be
treated as having agreed to pay Net WAC Rate Carryover Amounts to the Holders
of
the Certificates (other than the Class CE, Class P and Class R Certificates)
in
accordance with the terms of this Agreement. Any payments to the Certificates
from amounts deemed received in respect of this notional principal contract
shall not be payments with respect to a Regular Interest in a REMIC within
the
meaning of Code Section 860G(a)(1). However, any payment from the Certificates
(other than the Class CE, Class P and Class R Certificates) of a Class IO
Distribution Amount shall be treated for tax purposes as having been received
by
the Holders of such Certificates in respect of their interests in REMIC III
and
as having been paid by such Holders to the Trust Administrator pursuant to
the
notional principal contract. Thus, each Certificate (other than the Class P
and
Class R Certificates) shall be treated as representing not only ownership of
Regular Interests in REMIC III or REMIC IV, but also ownership of an interest
in, and obligations with respect to, a notional principal contract.
(f) The
Trust
Administrator shall,
at
the direction of the Depositor, enforce all of its rights and exercise any
remedies under the Swap Agreement. In the event the Swap Agreement is terminated
as a result of the designation by either party thereto of an Early Termination
Date (as defined therein), the Trust Administrator shall, at the direction
of
the Depositor, appoint a replacement counterparty to enter into a replacement
swap agreement. The Trust Administrator shall have no responsibility with regard
to the selection of a replacement swap provider or the negotiation of a
replacement swap agreement. Any Swap Termination Payment received by the Trust
Administrator shall be deposited in the Swap Account and shall be used to make
any upfront payment required under a replacement swap agreement and any upfront
payment received from the counterparty to a replacement swap agreement shall
be
used to pay any Swap Termination Payment owed to the previous Swap
Provider.
SECTION
4.09. Tax
Treatment of Swap Payments and Swap Termination Payments.
For
federal income tax purposes, each holder of a Class A or Mezzanine Certificate
is deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Net WAC Rate
Carryover Reserve Account or the Swap Account in respect of the Net WAC Rate
Carryover Amount or the obligation to make payments to the Swap Account. For
federal income tax purposes, the Trust Administrator will account for payments
to each Class A and Mezzanine Certificates as follows: each Class A and Class
M
Certificate will be treated as receiving their entire payment from REMIC III
(regardless of any Swap Termination Payment or obligation under the Interest
Rate Swap Agreement) and subsequently paying their portion of any Swap
Termination Payment in respect of each such Class’ obligation under the Interest
Rate Swap Agreement. In the event that any such Class is resecuritized in a
REMIC, the obligation under the Interest Rate Swap Agreement to pay any such
Swap Termination Payment (or any shortfall in Swap Provider Fee), will be made
by one or more of the REMIC Regular Interests issued by the resecuritization
REMIC subsequent to such REMIC Regular Interest receiving its full payment
from
any such Class A or Mezzanine Certificate. Resecuritization of any Class A
or
Mezzanine Certificate in a REMIC will be permissible only if the Trust
Administrator hereunder is the trustee in such resecuritization.
The
REMIC
regular interest corresponding to a Class A or Mezzanine Certificate will be
entitled to receive interest and principal payments at the times and in the
amounts equal to those made on the certificate to which it corresponds, except
that (i) the maximum interest rate of that REMIC regular interest will equal
the
Net WAC Pass-Through Rate computed for this purpose by limiting the Base
Calculation Amount of the Interest Rate Swap Agreement to the aggregate Stated
Principal Balance of the Mortgage Loans and (ii) any Swap Termination Payment
will be treated as being payable solely from Net Monthly Excess Cashflow. As
a
result of the foregoing, the amount of distributions and taxable income on
the
REMIC regular interest corresponding to a Class A or Mezzanine Certificate
may
exceed the actual amount of distributions on the Class A or Mezzanine
Certificate.
SECTION
4.10. Cap
Account.
(a) No
later
than the Closing Date, the Trust Administrator shall establish and maintain
with
itself, a separate, segregated trust account titled, “▇▇▇▇▇ Fargo Bank, N.A. as
Supplemental Interest Trust Trustee, in trust for the registered holders of
MASTR Asset Backed Securities Trust 2006-AM1, Mortgage Pass-Through
Certificates, Series 2006-AM1—Cap Account.” Such account shall be an Eligible
Account and amounts therein shall be held uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the Trust
Administrator shall deposit into the Cap Account amounts received by the Trust
Administrator under the Cap Contract for distribution in accordance with Section
4.01(h) above.
(c) For
federal income tax purposes, the Cap Account shall be owned by the majority
Holder of the Class CE Certificates.
(d) For
federal and state income tax purposes, the Class CE Certificateholders shall
be
deemed to be the owners of the Cap Account. Upon the termination of the Trust
Fund, or the payment in full of the Class A Certificates and the Mezzanine
Certificates, all amounts remaining on deposit in the Cap Account shall be
released by the Trust Fund and distributed to the Class CE Certificateholders
or
their designees. The Cap Account shall be part of the Trust Fund but not part
of
any Trust REMIC and any payments to the Holders of the Floating Rate
Certificates of Net WAC Rate Carryover Amounts will not be payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
(e) By
accepting a Class CE Certificate, each Class CE Certificateholder hereby agrees
to direct the Trust Administrator, and the Trust Administrator is hereby
directed, to deposit into the Cap Account the amounts described above on each
Distribution Date.
(f) For
federal income tax purposes, the value of the right of the Class A Certificates
and Mezzanine Certificates to receive payments from the Cap Account shall be
$454,000.
ARTICLE
V
THE
CERTIFICATES
SECTION
5.01. The
Certificates.
(a) The
Certificates in the aggregate will represent the entire beneficial ownership
interest in the Mortgage Loans and all other assets included in REMIC
I.
The
Certificates will be substantially in the forms annexed hereto as Exhibits
A-1
through A-20. The Certificates of each Class will be issuable in registered
form
only, in denominations of authorized Percentage Interests as described in the
definition thereof. Each Certificate will share ratably in all rights of the
related Class.
Upon
original issue, the Certificates shall be executed by the Trust Administrator
and authenticated and delivered by the Trust Administrator to or upon the order
of the Depositor. The Certificates shall be executed by manual or facsimile
signature on behalf of the Trust Administrator by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who
were
at any time the proper officers of the Trust Administrator shall bind the Trust
Administrator notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided herein executed by the Trust
Administrator by manual signature, and such certificate of authentication shall
be conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder. All Certificates shall be dated
the
date of their authentication.
(b) The
Class
A Certificates and the Mezzanine Certificates shall initially be issued as
one
or more Certificates held by the Book-Entry Custodian or, if appointed to hold
such Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below, registration
of
such Certificates may not be transferred by the Trust Administrator except
to
another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to definitive, fully registered Certificates
(“Definitive Certificates”) in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in
the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents
or
of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures. The Trust Administrator is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance herewith and in accordance with the agreement that it has with the
Depository authorizing it to act as such. The Book-Entry Custodian may, and,
if
it is no longer qualified to act as such, the Book-Entry Custodian shall,
appoint, by a written instrument delivered to the Depositor, the Master Servicer
and the Trust Administrator, any other transfer agent (including the Depository
or any successor Depository) to act as Book-Entry Custodian under such
conditions as the predecessor Book-Entry Custodian and the Depository or any
successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of any such appointment of other than the Depository. If the Trust
Administrator resigns or is removed in accordance with the terms hereof, the
successor trust administrator or, if it so elects, the Depository shall
immediately succeed to its predecessor’s duties as Book-Entry Custodian. The
Depositor shall have the right to inspect, and to obtain copies of, any
Certificates held as Book-Entry Certificates by the Book-Entry
Custodian.
The
Trustee, the Trust Administrator, the Master Servicer and the Depositor may
for
all purposes (including the making of payments due on the Book-Entry
Certificates) deal with the Depository as the authorized representative of
the
Certificate Owners with respect to the Book-Entry Certificates for the purposes
of exercising the rights of Certificateholders hereunder. The rights of
Certificate Owners with respect to the Book-Entry Certificates shall be limited
to those established by law and agreements between such Certificate Owners
and
the Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository
as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trust Administrator may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record
date.
If
(i)(A)
the Depositor advises the Trust Administrator in writing that the Depository
is
no longer willing or able to properly discharge its responsibilities as
Depository, and (B) the Depositor is unable to locate a qualified successor
or
(ii) after the occurrence of a Servicer Event of Default or a Master Servicer
Event of Termination, Certificate Owners representing in the aggregate not
less
than 51% of the Ownership Interests of the Book-Entry Certificates advise the
Trust Administrator through the Depository, in writing, that the continuation
of
a book-entry system through the Depository is no longer in the best interests
of
the Certificate Owners, the Trust Administrator shall notify all Certificate
Owners, through the Depository, of the occurrence of any such event and of
the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trust Administrator of the Book-Entry Certificates
by the Book-Entry Custodian or the Depository, as applicable, accompanied by
registration instructions from the Depository for registration of transfer,
the
Trust Administrator shall cause the Definitive Certificates to be issued. Such
Definitive Certificates will be issued in minimum denominations of $25,000.
None
of the Depositor, the Master Servicer, the Servicer, the Trustee or the Trust
Administrator shall be liable for any delay in the delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trust Administrator, to the extent
applicable with respect to such Definitive Certificates, and the Trustee and
the
Trust Administrator shall recognize the Holders of the Definitive Certificates
as Certificateholders hereunder.
SECTION
5.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Trust
Administrator shall cause to be kept at one of the offices or agencies to be
appointed by the Trust Administrator in accordance with the provisions of
Section 8.11, a Certificate Register for the Certificates in which, subject
to such reasonable regulations as it may prescribe, the Trustee shall provide
for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided.
(b) No
transfer of any Class M-5 Certificate, Class M-6 Certificate, Class M-7
Certificate, Class M-12 Certificate, Class CE Certificate, Class P Certificate
or Residual Certificate (collectively, the “Private Certificates”) shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the “1933 Act”), and an effective
registration or qualification under applicable state securities laws, or is
made
in a transaction that does not require such registration or qualification.
In
the event that such a transfer of a Private Certificate is to be made without
registration or qualification (other than in connection with (i) the initial
transfer of any Private Certificate by the Depositor to an Affiliate of the
Depositor or
the
Seller or an Affiliate of the Seller,
(ii)
the transfer of any such Private Certificate to the issuer under the Indenture
or the indenture trustee under the Indenture or (iii) a transfer of any Private
Certificate from the issuer under the Indenture or the indenture trustee under
the Indenture to the Depositor or an Affiliate of the Depositor) the Trust
Administrator shall require receipt of: (i) if such transfer is purportedly
being made in reliance upon Rule 144A under the 1933 Act, written certifications
from the Certificateholder desiring to effect the transfer and from such
Certificateholder’s prospective transferee, substantially in the forms attached
hereto as Exhibit F-1; and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
(which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Trust Administrator, the Master Servicer in its
capacity as such, the Servicer or any Sub-Servicer), together with copies of
the
written certification(s) of the Certificateholder desiring to effect the
transfer and/or such Certificateholder’s prospective transferee upon which such
Opinion of Counsel is based, if any. None of the Depositor, the Master Servicer,
the Servicer, the Trust Administrator or the Trustee is obligated to register
or
qualify any such Private Certificates under the 1933 Act or any other securities
laws or to take any action not otherwise required under this Agreement to permit
the transfer of such Certificates without registration or qualification.
If
a
transfer of an Ownership Interest in a Class
M-5
Certificate, Class M-6 Certificate, Class M-7 Certificate or Class M-12
Certificate
is to be
made without registration under the 1933 Act (other than in connection with
the
initial transfer of any such Certificate by the Depositor to an affiliate of
the
Depositor or the Seller or an Affiliate of the Seller), then the Trust
Administrator shall refuse to register such transfer unless it receives (and
upon receipt, may conclusively rely upon) a certificate from the
Certificateholder desiring to effect such transfer and a certificate from such
Certificateholder’s prospective transferee (which in the case of the Book-Entry
Certificates, the Certificateholder and the Certificateholder’s prospective
transferee shall be deemed to have represented such certification), to the
effect that, among other things, the transfer is being made to a qualified
institutional buyer as defined in Rule 144A under the Securities Act in
accordance with Rule 144A. Any Certificateholder desiring to effect the transfer
of any such Certificate shall, and does hereby agree to, indemnify the Trustee,
the Trust Administrator, the Depositor and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
(c) No
transfer of a Private Certificate (other than a Class M-5 Certificate, Class
M-6
Certificate, Class M-7 Certificate or Class M-12 Certificate) or any interest
therein shall be made to any Plan, any Person acting, directly or indirectly,
on
behalf of any such Plan or any Person acquiring such Certificates with “Plan
Assets” of a Plan within the meaning of the Department of Labor regulation
promulgated at 29 C. F. R. § 2510.3-101 (“Plan Assets”), as certified by such
transferee in the form of Exhibit G, unless the Trust Administrator is provided
with an Opinion of Counsel for the benefit of the Trustee, the Trust
Administrator, the Depositor, the Master Servicer and the Servicer and on which
they may rely which establishes to the satisfaction of the Depositor, the
Trustee, the Trust Administrator, the Servicer and the Master Servicer that
the
purchase of such Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Master
Servicer, the Servicer, the NIMS Insurer, the Trust Administrator, the Trustee
or the Trust Fund to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Master Servicer, the Servicer, the Trust Administrator,
the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any
certification will be required in connection with the (i) the initial transfer
of any Private Certificate by the Depositor to an Affiliate of the Depositor
or
the Seller or an Affiliate of the Seller, (ii) the transfer of any Private
Certificate to the issuer under the Indenture or the indenture trustee under
the
Indenture or (iii) a transfer of any Private Certificate from the issuer under
the Indenture or the indenture trustee under the Indenture to the Depositor
or
an Affiliate of the Depositor (in which case, the Transferee thereof shall
have
deemed to have represented that it is not a Plan or a Person investing Plan
Assets) and the Trust Administrator shall be entitled to conclusively rely
upon
a representation (which, upon the request of the Trust Administrator, shall
be a
written representation) from the Transferor of the status of such transferee
as
an affiliate of the Depositor or the Seller.
Any
transferee of a Class A Certificate or Mezzanine Certificate acquired prior
to
the termination of the Supplemental Interest Trust shall be deemed to represent
that either (i) it is not a Plan or purchasing with assets of a Plan or (ii)(A)
such Plan is an accredited investor within the meaning of the Exemption and
(B)
such acquisition or holding is eligible for the exemptive relief available
under
Department of Labor Prohibited Transaction Class Exemption (“PTE”) 84-14, ▇▇▇
▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 or PTE 96-23.
Subsequent
to the termination of the Supplemental Interest Trust, each beneficial owner
of
a Mezzanine Certificate or any interest therein shall be deemed to have
represented, by virtue of its acquisition or holding of that certificate or
interest therein, that either (i) it is not a Plan or investing with “Plan
Assets,” (ii) it has acquired and is holding such Mezzanine Certificate in
reliance on the Underwriter’s Exemption, and that it understands that there are
certain conditions to the availability of the Underwriter’s Exemption, including
that the Mezzanine Certificate must be rated, at the time of purchase not lower
than “BBB-” (or its equivalent) by S&P, ▇▇▇▇▇’▇ or ▇▇▇▇▇ Ratings Inc. or
(iii)(1) it is an insurance company, (2) the source of funds used to acquire
or
hold the certificate or interest therein is an “insurance company general
account,” as such term is defined in PTE 95-60, and (3) the conditions in
Sections I and III of PTE 95-60 have been satisfied.
If
any
Certificate or any interest therein is acquired or held in violation of the
provisions of the preceding three paragraphs, the next preceding permitted
beneficial owner will be treated as the beneficial owner of that Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any such Certificate
or interest therein was effected in violation of the provisions of the preceding
two paragraphs shall indemnify and hold harmless the Depositor, the Master
Servicer, the Servicer, the NIMS Insurer, the Trust Administrator, the Trustee
and the Trust Fund from and against any and all liabilities, claims, costs
or
expenses incurred by those parties as a result of that acquisition or
holding.
(d) (i) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
authorized the Trust Administrator or its designee under clause (iii)(A) below
to deliver payments to a Person other than such Person and to negotiate the
terms of any mandatory sale under clause (iii)(B) below and to execute all
instruments of Transfer and to do all other things necessary in connection
with
any such sale. The rights of each Person acquiring any Ownership Interest in
a
Residual Certificate are expressly subject to the following
provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trust
Administrator of any change or impending change in its status as a Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Trust Administrator shall require delivery to it, and shall
not
register the Transfer of any Residual Certificate until its receipt of, an
affidavit and agreement (a “Transfer Affidavit and Agreement,” in the form
attached hereto as Exhibit F-2) from the proposed Transferee, in form and
substance satisfactory to the Trust Administrator, representing and warranting,
among other things, that such Transferee is a Permitted Transferee, that it
is
not acquiring its Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in a Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this Section 5.02(d)
and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if a Responsible Officer of the Trust Administrator
who
is assigned to this transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement in the form
attached hereto as Exhibit F-2 from any other Person to whom such Person
attempts to transfer its Ownership Interest in a Residual Certificate and (y)
not to transfer its Ownership Interest unless it provides a Transferor Affidavit
(in the form attached hereto as Exhibit F-2) to the Trust Administrator stating
that, among other things, it has no actual knowledge that such other Person
is
not a Permitted Transferee.
(E) Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the Trust
Administrator written notice that it is a “pass-through interest holder” within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Residual Certificate,
if
it is, or is holding an Ownership Interest in a Residual Certificate on behalf
of, a “pass-through interest holder.”
(ii) The
Trust
Administrator will register the Transfer of any Residual Certificate only if
it
shall have received the Transfer Affidavit and Agreement and all of such other
documents as shall have been reasonably required by the Trust Administrator
as a
condition to such registration. In addition, no Transfer of a Residual
Certificate shall be made unless the Trust Administrator shall have received
a
representation letter from the Transferee of such Certificate to the effect
that
such Transferee is a Permitted Transferee.
(iii) (i) If
any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights as holder thereof retroactive to the date of registration
of
such Transfer of such Residual Certificate. The Trust Administrator shall be
under no liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.02(d) or for
making any payments due on such Certificate to the holder thereof or for taking
any other action with respect to such holder under the provisions of this
Agreement.
(B) If
any
purported Transferee shall become a holder of a Residual Certificate in
violation of the restrictions in this Section 5.02(d) and to the extent
that the retroactive restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Trust Administrator shall have the right, without notice
to the holder or any prior holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the Trust Administrator on
such
terms as the Trust Administrator may choose. Such purported Transferee shall
promptly endorse and deliver each Residual Certificate in accordance with the
instructions of the Trust Administrator. Such purchaser may be the Trust
Administrator itself or any Affiliate of the Trust Administrator. The proceeds
of such sale, net of the commissions (which may include commissions payable
to
the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted
by the Trust Administrator to such purported Transferee. The terms and
conditions of any sale under this clause (iii)(B) shall be determined in the
sole discretion of the Trust Administrator, and the Trust Administrator shall
not be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iv) The
Trust
Administrator shall make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in
a
Residual Certificate to any Person who is a Disqualified Organization, including
the information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common Trust, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is a Disqualified Organization. Reasonable compensation for providing
such
information may be accepted by the Trust Administrator.
(v) The
provisions of this Section 5.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Trust Administrator and the NIMS Insurer at the expense of
the
party seeking to modify, add to or eliminate any such provision the
following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Trust
Administrator and the NIMS Insurer, to the effect that such modification of,
addition to or elimination of such provisions will not cause any Trust REMIC
to
cease to qualify as a REMIC and will not cause any Trust REMIC to be subject
to
an entity-level tax caused by the Transfer of any Residual Certificate to a
Person that is not a Permitted Transferee or a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a Residual
Certificate to a Person that is not a Permitted Transferee.
The
Trust
Administrator shall forward to the NIMS Insurer a copy of the items delivered
to
it pursuant to (A) and (B) above.
(e) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Trust Administrator maintained for
such purpose pursuant to Section 8.11, the Trust Administrator shall
execute, authenticate and deliver, in the name of the designated Transferee
or
Transferees, one or more new Certificates of the same Class of a like aggregate
Percentage Interest.
(f) At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with authorized denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Trust Administrator maintained for
such
purpose pursuant to Section 8.11. Whenever any Certificates are so
surrendered for exchange, the Trust Administrator shall execute, authenticate
and deliver, the Certificates which the Certificateholder making the exchange
is
entitled to receive. Every Certificate presented or surrendered for transfer
or
exchange shall (if so required by the Trust Administrator) be duly endorsed
by,
or be accompanied by a written instrument of transfer in the form satisfactory
to the Trust Administrator duly executed by, the Holder thereof or his attorney
duly authorized in writing. In addition, (i) with respect to each Class R
Certificate, the holder thereof may exchange, in the manner described above,
such Class R Certificate for three separate certificates, each representing
such
holder’s respective Percentage Interest in the Class R-I Interest, the Class
R-II Interest and the Class R-III Interest, respectively, in each case that
was
evidenced by the Class R Certificate being exchanged and (ii) with respect
to
each Class R-X Certificate, the holder thereof may exchange, in the manner
described above, such Class R-X Certificate for three separate certificates,
each representing such holder’s respective Percentage Interest in the Class R-IV
Interest, the Class R-V Interest and the Class R-VI Interest, respectively,
in
each case that was evidenced by the Class R-X Certificate being
exchanged.
(g) No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, but the Trust Administrator may require payment of
a
sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
(h) All
Certificates surrendered for transfer and exchange shall be canceled and
destroyed by the Trust Administrator in accordance with its customary
procedures.
SECTION
5.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Trust Administrator, or the
Trust Administrator receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (ii) there is delivered to the Trust
Administrator, the Trustee and the NIMS Insurer such security or indemnity
as
may be required by it to save it harmless, then, in the absence of actual
knowledge by the Trust Administrator that such Certificate has been acquired
by
a bona fide purchaser or the Trust Administrator shall execute, authenticate
and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or
stolen Certificate, a new Certificate of the same Class and of like denomination
and Percentage Interest. Upon the issuance of any new Certificate under this
Section, the Trust Administrator may require the payment of a sum sufficient
to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trust
Administrator) connected therewith. Any replacement Certificate issued pursuant
to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at
any
time.
SECTION
5.04. Persons
Deemed Owners.
The
Depositor, the Master Servicer, the NIMS Insurer, the Trust Administrator,
the
Trustee and any agent of any of them may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Depositor, the Master Servicer, the NIMS Insurer,
the Trust Administrator, the Trustee or any agent of any of them shall be
affected by notice to the contrary.
SECTION
5.05. Certain
Available Information.
On
or
prior to the date of the first sale of any Private Certificate to an Independent
third party, the Depositor shall provide to the Trust Administrator ten copies
of any private placement memorandum or other disclosure document used by the
Depositor in connection with the offer and sale of such Certificates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof
to
the Trust Administrator, the Depositor promptly shall inform the Trust
Administrator of such event and shall deliver to the Trust Administrator ten
copies of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Trust Administrator shall maintain at its Corporate
Trust Office and shall make available free of charge during normal business
hours for review by any Holder of a Certificate or any Person identified to
the
Trust Administrator as a prospective transferee of a Certificate, originals
or
copies of the following items: (i) in the case of a Holder or prospective
transferee of a Private Certificate, the related private placement memorandum
or
other disclosure document relating to such Class of Certificates, in the form
most recently provided to the Trust Administrator; and (ii) in all cases, (A)
this Agreement and any amendments hereof entered into pursuant to
Section 11.01, (B) all monthly statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) any and all Officers’
Certificates delivered to the Trust Administrator by the Servicer since the
Closing Date to evidence the Servicer’s determination that any Advance or
Servicing Advance was, or if made, would be a Nonrecoverable Advance or
Nonrecoverable Servicing Advance, respectively, and (D) any and all Officers’
Certificates delivered to the Trust Administrator by the Servicer since the
Closing Date pursuant to Section 4.04(a). Copies and mailing of any and all
of the foregoing items will be available from the Trust Administrator upon
request at the expense of the Person requesting the same.
ARTICLE
VI
THE
DEPOSITOR AND THE MASTER SERVICER
SECTION
6.01. Liability
of the Depositor, the Servicer and the Master Servicer.
The
Depositor, the Servicer and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement upon them in their respective capacities as Depositor,
Servicer and Master Servicer and undertaken hereunder by the Depositor, the
Servicer and the Master Servicer herein.
SECTION
6.02. Merger
or
Consolidation of the Depositor or the Master Servicer.
Subject
to the following paragraph, the Depositor will keep in full effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation. Subject to the following paragraph, the
Servicer will keep in full effect its existence, rights and franchises as a
limited liability company under the laws of the State of Delaware. Subject
to
the following paragraph, the Master Servicer will keep in full effect its
existence, rights and franchises as a national banking association and shall
ensure that it (or an Affiliate) maintains its qualification as an approved
conventional seller/servicer for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac in good standing.
The
Depositor, the Servicer and the Master Servicer each will obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The
Depositor, the Servicer or the Master Servicer may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets
to
any Person, in which case any Person resulting from any merger or consolidation
to which the Depositor, the Servicer or the Master Servicer shall be a party,
or
any Person succeeding to the business of the Depositor, the Servicer or the
Master Servicer, shall be the successor of the Depositor or the Master Servicer,
as the case may be, hereunder, without the execution or filing of any paper
or
any further act on the part of any of the parties hereto, anything herein to
the
contrary notwithstanding; provided, however, that the successor or surviving
Person to the Servicer shall be qualified to service mortgage loans on behalf
of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
SECTION
6.03. Limitation
on Liability of the Depositor, the Servicer, the Master Servicer and
Others.
(a) The
Servicer (except the Trustee if it is required to succeed the Servicer after
becoming Master Servicer hereunder) indemnifies and holds the NIMS Insurer,
the
Trustee, the Trust Administrator, the Master Servicer and the Depositor harmless
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, fees and expenses
that the NIMS Insurer, the Trustee, the Trust Administrator, the Master Servicer
and the Depositor may sustain in any way related to the failure of the Servicer
to perform its duties and service the Mortgage Loans in compliance with the
terms of this Agreement. The Servicer shall immediately notify the NIMS Insurer,
the Trustee, the Trust Administrator, the Master Servicer and the Depositor
if a
claim relating to such failure is made that may result in such claims, losses,
penalties, fines, forfeitures, legal fees or related costs, judgments, or any
other costs, fees and expenses, and the Servicer shall assume (with the consent
of the Trust Administrator, the Depositor, the Master Servicer and the Trustee)
the defense of any such claim and pay all expenses in connection therewith,
including reasonable counsel fees, and promptly pay, discharge and satisfy
any
judgment or decree which may be entered against the NIMS Insurer, the Trustee,
the Trust Administrator, the Master Servicer and/or the Depositor in respect
of
such claim. The provisions of this Section 6.03 shall survive the termination
of
this Agreement and the payment of the outstanding Certificates.
(b) The
Master Servicer agrees to indemnify the Indemnified Persons for, and to hold
them harmless against, any loss, liability or expense (including reasonable
legal fees and disbursements of counsel) incurred on their part that may be
sustained in connection with, arising out of, or relating to, any claim or
legal
action (including any pending or threatened claim or legal action) relating
to
this Agreement or the Certificates or the powers of attorney delivered by the
Trustee hereunder (i) related to the Master Servicer’s failure to perform its
duties in compliance with this Agreement (except as any such loss, liability
or
expense shall be otherwise reimbursable pursuant to this Agreement) or (ii)
incurred by reason of the Master Servicer’s willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, provided, in each case, that
with
respect to any such claim or legal action (or pending or threatened claim or
legal action), the Trustee shall have given the Master Servicer and the
Depositor written notice thereof promptly after the Trustee shall have with
respect to such claim or legal action knowledge thereof. The Master Servicer’s
failure to receive any such notice shall not affect any Indemnified Person’s
right to indemnification under this Section 6.03(b), except to the extent
the Master Servicer is materially prejudiced by such failure to give notice.
This indemnity shall survive the resignation or removal of the Trustee, Master
Servicer or the Trust Administrator and the termination of this Agreement.
For
purposes of this Section 6.03(b), “Indemnified Persons” means the Trustee,
the NIMS Insurer and their officers, directors, agents and employees and, with
respect to the Trustee, any separate co-trustee and its officers, directors,
agents and employees.
(c) None
of
the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator,
the Servicer or any of the directors, officers, employees or agents of the
Depositor, the Master Servicer, the Trust Administrator or the Servicer shall
be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant
to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Trust
Administrator, the Servicer or any such person against any breach of warranties,
representations or covenants made herein, or against any specific liability
imposed on the Master Servicer or Servicer pursuant hereto, or against any
liability which would otherwise be imposed by reason of willful misfeasance,
bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder, in the case of the Master
Servicer, a breach of the servicing standard set forth in Section 3A.01 or
in
the case of the Servicer, a breach of the servicing standard set forth in
Section 3.01. The Depositor, the NIMS Insurer, the Master Servicer, the Trust
Administrator and the Servicer and any director, officer, employee or agent
of
the Depositor, the NIMS Insurer, the
Master Servicer,
the
Trust Administrator or the Servicer may rely in good faith on any document
of
any kind which is, prima
facie,
is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the NIMS Insurer, the Master Servicer, the Trust
Administrator, the Servicer and any director, officer, employee or agent of
the
Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator or
the
Servicer shall be indemnified and held harmless by the Trust Fund against any
loss, liability or expense incurred in connection with (i) any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense relating to any specific Mortgage Loan or Mortgage Loans (except
as
any such loss, liability or expense shall be otherwise reimbursable pursuant
to
this Agreement) or any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder
or
by reason of its reckless disregard of obligations and duties hereunder or
(ii)
any breach of a representation or warranty by the Originator regarding the
Mortgage Loans. None of the Depositor, the NIMS Insurer, the Master Servicer,
the Trust Administrator or the Servicer shall be under any obligation to appear
in, prosecute or defend any legal action unless such action is related to its
respective duties under this Agreement and, in its opinion, does not involve
it
in any expense or liability; provided, however, that each of the Depositor,
the
NIMS Insurer, the Master Servicer, the Trust Administrator and the Servicer
may
in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom (except any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder) shall be expenses, costs and liabilities of the Trust Fund, and
the
Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator and
the Servicer shall be entitled to be reimbursed therefor from the Collection
Account or Distribution Account, as applicable, as and to the extent provided
in
Section 3.11 or Section 3A.12, any such right of reimbursement being prior
to
the rights of the Certificateholders to receive any amount in the Collection
Account or Distribution Account. The Master Servicer’s, the Trust
Administrator’s or Servicer’s right to indemnity or reimbursement pursuant to
this Section shall survive any termination of this Agreement, any resignation
or
termination of the Master Servicer, the Trust Administrator or the Servicer
pursuant to Section 6.04 or 7.01 with respect to any losses, expenses, costs
or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination).
SECTION
6.04. Limitation
on Resignation of the Servicer; Assignment of Master Servicing.
(a) Except
as
otherwise provided herein, the Servicer shall not resign from the obligations
and duties hereby imposed on it except upon determination that its duties
hereunder are no longer permissible under applicable law. Any such determination
pursuant to the preceding sentence permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect obtained at the
expense of the Servicer and delivered to the Trustee, the Trust Administrator,
the Master Servicer and the NIMS Insurer. No resignation of the Servicer shall
become effective until the Master Servicer or a successor servicer acceptable
to
the NIMS Insurer shall have assumed the Servicer’s responsibilities, duties,
liabilities (other than those liabilities arising prior to the appointment
of
such successor) and obligations under this Agreement. Any such resignation
shall
not relieve the Servicer of responsibility for any of the obligations specified
in Sections 7.01 and 7.02 as obligations that survive the resignation or
termination of the Servicer.
Except
as
expressly provided herein, the Servicer shall not assign or transfer any of
its
rights, benefits or privileges hereunder to any other Person, or delegate to
or
subcontract with, or authorize or appoint any other Person to perform any of
the
duties, covenants or obligations to be performed by the Servicer hereunder.
The
foregoing prohibition on assignment shall not prohibit the Servicer from
designating a Sub-Servicer as payee of any indemnification amount payable to
the
Servicer hereunder; provided, however, that as provided in Section 3.06 hereof,
no Sub-Servicer shall be a third-party beneficiary hereunder and the parties
hereto shall not be required to recognize any Sub-Servicer as an indemnitee
under this Agreement. If, pursuant to any provision hereof, the duties of the
Servicer are transferred to a successor servicer, the entire amount of the
Servicing Fee and other compensation payable to the Servicer pursuant hereto
shall thereafter be payable to such successor servicer.
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those set forth
in Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04. Except as provided
in Section 3.02, no such delegation is permitted that would result in the
delegee subservicing any Mortgage Loans.
The
Trustee, the Trust Administrator, the Master Servicer and the Depositor hereby
specifically (i) consent to the pledge and assignment by the Servicer of all
of
the Servicer’s right, title and interest in, to and under this Agreement to a
specified servicing rights pledgee, for the benefit of certain lenders and
(ii)
in the event that a Servicer Event of Default or a default under the related
loan agreement with such lenders exists or in the event of a Servicer
resignation, agree that the Servicer or its designee may appoint the successor
servicer; provided that at the time of such appointment, such successor meets
the requirements of a successor servicer pursuant to Section 7.02(a) hereof
and
agrees to be subject to the terms of this Agreement. If, pursuant to any
provision hereof, the duties of the Servicer are transferred to a successor
servicer, the entire amount of the Servicing Fee and other compensation payable
to the Servicer pursuant hereto shall thereafter be payable to such successor
servicer.
(b) 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 ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ 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 NIMS Insurer and the Trustee (as
evidenced in a writing signed by each of the NIMS Insurer and the Trustee);
and
(d) shall execute and deliver to the Trustee and the NIMS Insurer an agreement,
in form and substance reasonably satisfactory to the Trustee and the NIMS
Insurer, 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, the NIMS
Insurer 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 Officers’
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
6.05. Successor
Master Servicer.
In
connection with the appointment of any successor Master Servicer or the
assumption of the duties of the Master Servicer, the Depositor, the NIMS Insurer
or the Trustee may make such arrangements for the compensation of such successor
Master Servicer out of payments on the Mortgage Loans as the Depositor, the
NIMS
Insurer or the Trustee and such successor Master Servicer shall agree. If the
successor Master Servicer does not agree that such market value is a fair price,
such successor Master Servicer shall obtain two quotations of market value
from
third parties actively engaged in the master servicing of single-family mortgage
loans. Notwithstanding the foregoing, the compensation payable to a successor
Master Servicer may not exceed the compensation which the Master Servicer would
have been entitled to retain if the Master Servicer had continued to act as
Master Servicer hereunder.
SECTION
6.06. Rights
of
the Depositor in Respect of the Servicer.
The
Servicer shall afford (and any Sub-Servicing Agreement shall provide that each
Sub-Servicer shall afford) the Depositor, the NIMS Insurer, the Master Servicer,
the Trust Administrator and the Trustee, upon reasonable notice, during normal
business hours, access to all records maintained by the Servicer (and any such
Sub-Servicer) in respect of the Servicer’s rights and obligations hereunder and
access to officers of the Servicer (and those of any such Sub-Servicer)
responsible for such obligations. Upon request, the Servicer shall furnish
to
the Depositor, the NIMS Insurer, the Master Servicer, Trust Administrator and
the Trustee its (and any such Sub-Servicer’s) most recent financial statements
and such other information relating to the Servicer’s capacity to perform its
obligations under this Agreement as it possesses (and that any such Sub-Servicer
possesses). To the extent such information is not otherwise available to the
public, the Depositor, the NIMS Insurer, the Master Servicer, the Trust
Administrator and the Trustee shall not disseminate any information obtained
pursuant to the preceding two sentences without the Servicer’s written consent,
except as required pursuant to this Agreement or to the extent that it is
appropriate to do so (i) in working with legal counsel, auditors, taxing
authorities or other governmental agencies or (ii) pursuant to any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Depositor and the Trustee
or
the Trust Fund, and in any case, the Depositor, the NIMS Insurer, the Master
Servicer, the Trust Administrator or the Trustee, as the case may be, shall
use
its best efforts to assure the confidentiality of any such disseminated
non-public information. Nothing in this Section shall limit the obligation
of
the Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors (absent proof that it is in compliance with applicable
law) and the failure of the Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of this
Section. Nothing in this Section shall require the Servicer to collect, create,
collate or otherwise generate any information that it does not generate in
its
usual course of business. The Servicer shall not be required to make copies
of
or ship documents to any party unless provisions have been made for the
reimbursement of the costs thereof. The Depositor may, but is not obligated
to,
enforce the obligations of the Servicer under this Agreement and may, but is
not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of the Servicer under this Agreement or exercise the rights of the Servicer
under this Agreement; provided that the Servicer shall not be relieved of any
of
its obligations under this Agreement by virtue of such performance by the
Depositor or its designee. The Depositor shall not have any responsibility
or
liability for any action or failure to act by the Servicer and is not obligated
to supervise the performance of the Servicer under this Agreement or otherwise.
SECTION
6.07. Duties
of
the Credit Risk Manager.
For
and
on behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Charges with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
to the Credit Risk Manager pursuant to the respective Credit Risk Management
Agreement, and the Credit Risk Manager shall look solely to the Servicer and/or
Master Servicer, as applicable, for all information and data (including loss
and
delinquency information and data) relating to the servicing of the Mortgage
Loans. Upon any termination of the Credit Risk Manager or the appointment of
a
successor Credit Risk Manager, the Depositor shall give written notice thereof
to the Servicer, the Trustee, the Master Servicer, the Trust Administrator
and
each Rating Agency. Notwithstanding the foregoing, the termination of the Credit
Risk Manager pursuant to this Section shall not become effective until the
appointment of a successor Credit Risk Manager.
SECTION
6.08. Limitation
Upon Liability of the Credit Risk Manager.
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents shall be under any liability to the Trustee, the Certificateholders,
the
Trust Administrator, the Servicer or the Depositor for any action taken or
for
refraining from the taking of any action made in good faith pursuant to this
Agreement, in reliance upon information provided by the Servicer under the
Credit Risk Management Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance or bad faith in its performance of its duties. The Credit Risk
Manager and any director, officer, employee, or agent of the Credit Risk Manager
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,
and may rely in good faith upon the accuracy of information furnished by the
Servicer pursuant to the Credit Risk Management Agreement in the performance
of
its duties thereunder and hereunder.
SECTION
6.09. Removal
of the Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66 2/3% of the Voting Rights in the Trust Fund, in the
exercise of its or their sole discretion. The Certificateholders shall provide
written notice of the Credit Risk Manager’s removal to the Trust Administrator.
Upon receipt of such notice, the Trust Administrator shall provide written
notice to the Credit Risk Manager of its removal, which shall be effective
upon
receipt of such notice by the Credit Risk Manager.
ARTICLE
VII
DEFAULT
SECTION
7.01. Servicer
Events of Default and Master Servicer Events of Termination.
(a) “Servicer
Event of Default,” wherever used herein, means any one of the following
events:
(i) any
failure by the Servicer to remit to the Trust Administrator for distribution
to
the Certificateholders any payment (other than an Advance required to be made
from its own funds on any Servicer Remittance Date pursuant to Section 4.03)
required to be made under the terms of the Certificates and this Agreement
which
continues unremedied for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Depositor or the Trust Administrator (in
which
case notice shall be provided by telecopy), or to the Servicer, the Depositor
and the Trust Administrator by the NIMS Insurer or the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(ii) other
than with respect to clause (vi) below, any failure on the part of the Servicer
duly to observe or perform in any material respect any other of the covenants
or
agreements on the part of the Servicer contained in this Agreement, or the
breach by the Servicer of any representation and warranty contained in Section
2.05, which continues unremedied for a period of 30 days (or if such failure
or
breach cannot be remedied within 30 days, then such remedy shall have been
commenced within 30 days and diligently pursued thereafter; provided, however,
that in no event shall such failure or breach be allowed to exist for a period
of greater than 90 days) after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given
to the Servicer by the Depositor or the Trust
Administrator or
to the
Servicer, the Depositor and the Trust Administrator by the NIMS Insurer or
the
Holders of Certificates entitled to at least 25% of the Voting Rights and (ii)
actual knowledge of such failure by a Servicing Officer of the Servicer;
or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed
for a
period of 90 days; or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
(v) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) any
failure by the Servicer to timely comply with its obligations pursuant to
Section 3.20, Section 3.21 or Section 4.06 hereof (taking into account any
applicable cure period); or
(vii) any
failure of the Servicer to make any Advance on any Servicer Remittance Date
required to be made from its own funds pursuant to Section 4.03 which continues
unremedied until 3:00 p.m. New York time on the Business Day following the
Servicer Remittance Date.
If
(a) a
Servicer Event of Default described in clauses (i) through (v) of this Section
shall occur, then, and in each and every such case, so long as such Servicer
Event of Default shall not have been remedied, the Depositor, the Master
Servicer, the Trustee or the Trust Administrator may, and at the written
direction of the Holders of Certificates entitled to at least 51% of Voting
Rights, or at the direction of the NIMS Insurer, the Trustee shall or (b) a
Servicer Event of Default described in clause (vi) of this Section shall occur
and the Trustee or the Master Servicer has, at the direction of the Depositor,
determined to terminate the Servicer, then the Trustee shall, by notice in
writing to the Servicer, the Master Servicer and the Depositor, terminate all
of
the rights and obligations of the Servicer in its capacity as Servicer under
this Agreement, to the extent permitted by law, and in and to the Mortgage
Loans
and the proceeds thereof. If a Servicer Event of Default described in clause
(vii) hereof shall occur, the Trustee shall, by notice in writing to the
Servicer, the Depositor, the Master Servicer and the NIMS Insurer, terminate
all
of the rights and obligations of the Servicer in its capacity as Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof.
Subject to Section 7.02 hereof, on or after the receipt by the Servicer of
such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested
in
the Master Servicer pursuant to and under this Section, and, without limitation,
the Master Servicer is hereby authorized and empowered, as attorney-in-fact
or
otherwise, to execute and deliver, on behalf of and at the expense of the
Servicer, any and all documents and other instruments and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of
such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. The
Servicer agrees to promptly (and in any event no later than ten Business Days
subsequent to such notice) provide the Master Servicer with all documents and
records requested by it to enable it to assume the Servicer’s functions under
this Agreement, and to cooperate with the Master Servicer in effecting the
termination of the Servicer’s responsibilities and rights under this Agreement,
including, without limitation, the transfer within one Business Day to the
Master Servicer for administration by it of all cash amounts which at the time
shall be or should have been credited by the Servicer to the Collection Account
held by or on behalf of the Servicer, the Distribution Account or any REO
Account or Servicing Account held by or on behalf of the Servicer or thereafter
be received with respect to the Mortgage Loans or any REO Property serviced
by
the Servicer; provided, however, that the Servicer shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the date of such termination, whether in respect of Advances or otherwise,
and shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination, with respect to events occurring prior
to
such termination.
(b) “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 (other than an
Advance), and such failure continues unremedied for a period of three Business
Days 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 the NIMS Insurer or to the Master Servicer and the Trustee by the
Holders of Certificates evidencing not less than 25% of the Voting Rights;
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; or
(vi) any
failure of the Master Servicer to make any Advance (other than a Nonrecoverable
Advance) required to be made from its own funds pursuant to Section 4.03 by
5:00 p.m. New York time on the Business Day prior to the applicable Distribution
Date.
In
each
and every such case, so long as such Master Servicer Event of Termination with
respect to the Master Servicer shall not have been remedied, either the Trustee,
the NIMS Insurer or the Holders of Certificates evidencing not less than 51%
of
the Voting Rights, by notice in writing to the Depositor, the Master Servicer
(and to the Trustee if given by such Certificateholders), with a copy to the
NIMS Insurer and the Rating Agencies, may terminate all of the rights and
obligations (but not the liabilities) of the Master Servicer under this
Agreement and in and to the Mortgage Loans and/or the REO Property master
serviced by the Master Servicer and the proceeds thereof. Upon the receipt
by
the Master Servicer of the written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates, the
Mortgage Loans, 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 7.03, automatically and without
further action pass to and be vested in the Trustee pursuant to this
Section 7.01(b); 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 property
and amounts which are then or should be part of the Trust Fund or which
thereafter become part of the Trust Fund; 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
the foregoing, if a Master Servicer Event of Termination described in clause
(vi) of this Section 7.01(b) shall occur, the Trustee shall, by notice in
writing to the Master Servicer, which may be delivered by telecopy, immediately
terminate all of the rights and obligations of the Master Servicer thereafter
arising under this Agreement, but without prejudice to any rights it may have
as
a Certificateholder or to reimbursement of Advances and other advances of its
own funds, and the Trustee shall act as provided in Section 7.03 to carry
out the duties of the Master Servicer, including the obligation to make any
Advance the nonpayment of which was a Master Servicer Event of Termination
described in clause (vi) of this Section 7.01(b). Any such action taken by
the Trustee must be prior to the distribution on the relevant Distribution
Date.
SECTION
7.02. Master
Servicer to Act; Appointment of Successor Servicer.
(a) From
the
time the Servicer receives a notice of termination, the Master
Servicer
(or such
other successor servicer as is acceptable to the NIMS Insurer) shall be the
successor in all respects to the Servicer in its capacity as Servicer under
this
Agreement and the transactions set forth or provided for herein, and all the
responsibilities, duties and liabilities relating thereto and arising thereafter
shall be assumed by the Master Servicer (except for any representations or
warranties of the Servicer under this Agreement, the responsibilities, duties
and liabilities contained in Section 2.05 (other than with respect to Section
2.05(x)) and the obligation to deposit amounts in respect of losses pursuant
to
Section 3.12) by the terms and provisions hereof; provided, however, the Master
Servicer shall immediately assume the Servicer’s obligations to make Advances
pursuant to Section 4.03; provided, further, however, that if the Master
Servicer is prohibited by law or regulation from obligating itself to make
advances regarding delinquent mortgage loans, then the Master Servicer shall
not
be obligated to make Advances pursuant to Section 4.03; and provided further,
that any failure to perform such duties or responsibilities caused by the
Servicer’s failure to provide information required by Section 7.01(a) shall not
be considered a default by the Master Servicer as successor to the Servicer
hereunder. It is understood and acknowledged by the parties hereto that there
will be a period of transition (not to exceed 90 days) before the transition
of
servicing obligations is fully effective. As compensation therefor, the Master
Servicer shall be entitled to the Servicing Fee and all funds relating to the
Mortgage Loans to which the Servicer would have been entitled if it had
continued to act hereunder. Notwithstanding the above and subject to Section
7.02(b) below, the Master Servicer, if it shall be unwilling to so act, or
shall, if it is unable to so act or if it is prohibited by law from making
advances regarding delinquent mortgage loans or if the Holders of Certificates
entitled to at least 51% of the Voting Rights or the NIMS Insurer so request
in
writing to the Trustee, promptly appoint or petition a court of competent
jurisdiction to appoint, an established mortgage loan servicing institution
acceptable to each Rating Agency and the NIMS Insurer and having a net worth
of
not less than $15,000,000, as the successor to the Servicer under this Agreement
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Servicer under this Agreement.
Pending
appointment of a successor to the Servicer hereunder, unless the Master Servicer
is prohibited by law from so acting, the Master Servicer shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on Mortgage Loans in an amount equal to the compensation which the
Servicer would otherwise have received pursuant to Section 3.18 (or such other
compensation as the Master Servicer and such successor shall agree, not to
exceed the Servicing Fee). The appointment of a successor servicer shall not
affect any liability of the predecessor Servicer which may have arisen under
this Agreement prior to its termination as Servicer to pay any deductible under
an insurance policy pursuant to Section 3.14 or to indemnify the NIMS Insurer
pursuant to Section 6.03, nor shall any successor servicer be liable for any
acts or omissions of the predecessor servicer or for any breach by such servicer
of any of its representations or warranties contained herein or in any related
document or agreement. The Master Servicer and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate
any
such succession. All reasonable Servicing Transfer Costs shall be paid by the
predecessor servicer upon presentation of reasonable documentation of such
costs, and if such predecessor servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor servicer or the Master Servicer
(in which case the successor servicer or the Master Servicer, as applicable,
shall be entitled to reimbursement therefor from the assets of the Trust
Fund).
(b) No
appointment of a successor to the Servicer under this Agreement shall be
effective until the assumption by the successor of all of the Servicer’s
responsibilities, duties and liabilities hereunder. In connection with such
appointment and assumption described herein, the Master Servicer may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Servicer as such
hereunder. The Depositor, the Trustee, the Trust Administrator, the Master
Servicer and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Pending
appointment of a successor to the Servicer under this Agreement or the Master
Servicer shall act in such capacity as hereinabove provided.
Any
successor to the Servicer, including the Master Servicer, shall during the
term
of its service as servicer continue to service and administer the Mortgage
Loans
for the benefit of Certificateholders, and maintain in force a policy or
policies of insurance covering errors and omissions in the performance of its
obligations as Servicer hereunder and a fidelity bond in respect of its
officers, employees and agents to the same extent as the Servicer is so required
pursuant to Section 3.14.
(c) Notwithstanding
any provision in this Agreement to the contrary, for a period of 30 days
following the date on which the Servicer shall have received a notice of a
Servicer Event of Default pursuant to Section 7.01, or a default under a loan
agreement pursuant to Section 6.04 or a Servicer resignation pursuant to Section
6.04, the terminated Servicer or its designee may appoint a successor servicer
that satisfies the eligibility criteria of a successor servicer set forth above;
provided that such successor servicer agrees to fully effect the servicing
transfer within 90 days following the termination of the Servicer and to make
all Advances that would otherwise be made by the Master Servicer under Section
7.01 as of the date of such appointment. Any proceeds received in connection
with the appointment of such successor servicer shall be the property of the
terminated Servicer or its designee. Notwithstanding the foregoing, in the
event
of a Servicer Event of Default pursuant to Section 7.01(a)(viii), either (i)
the
Servicer shall remit the amount of the required Advance by 3:00 p.m.
New York
time on the Business Day following the Servicer Remittance Date or (ii) by
3:00
p.m. New York time on the Business Day following the Servicer Remittance Date,
the Servicer shall have appointed a successor servicer that satisfies the
eligibility criteria of a successor servicer set forth above and that has
remitted the amount of the required Advance to the Master Servicer. If the
Servicer fails to adhere to the requirements set forth in the immediately
preceding sentence, the Master Servicer shall be the successor in all respects
to the Servicer in its capacity as Servicer under this Agreement and shall
immediately assume the Servicer’s obligations to make Advances. In no event
shall the termination of the Servicer under this Agreement result in any
diminution of the Servicer’s right to reimbursement for any outstanding Advances
or Servicing Advances or accrued and unpaid Servicing Fees due such Servicer
at
the time of termination. Reimbursement of unreimbursed Advances and Servicing
Advances and accrued and unpaid Servicing Fees shall be made on a FIFO,
loan-by-loan basis. The Servicer shall continue to be entitled to the benefits
of Section 6.03 hereof related to indemnification, notwithstanding any
termination hereunder.
(d) In
connection with the termination or resignation of the Servicer hereunder, either
(i) the successor servicer, including the Master Servicer if the Master Servicer
is acting as successor servicer, shall represent and warrant that it is a member
of MERS in good standing and shall agree to comply in all material respects
with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, in which case the predecessor
servicer shall cooperate with the successor servicer in causing MERS to revise
its records to reflect the transfer of servicing to the successor servicer
as
necessary under MERS’ rules and regulations, or (ii) the predecessor servicer
shall cooperate with the successor servicer in causing MERS to execute and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Master Servicer and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect
a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS®
System to the successor servicer. The predecessor servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor servicer shall bear any and all fees of MERS, costs of preparing
any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this Section 7.02(d).
SECTION
7.03. Trustee
to Act; Appointment of Successor Master Servicer.
(a) Upon
the
receipt by the Master Servicer of a notice of termination pursuant to
Section 7.01(b) or an Opinion of Counsel rendered by Independent counsel
pursuant to Section 6.05(b) to the effect that the Master Servicer is
legally unable to act or to delegate its duties to a Person which is legally
able to act, the Trustee shall automatically become the successor in all
respects to the Master Servicer in its capacity under this Agreement and the
transactions set forth or provided for herein and shall thereafter 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; provided, however, that the Trustee (i) shall have no obligation
whatsoever with respect to any liability (other than Advances deemed recoverable
and not previously made) incurred by the Master Servicer at or prior to the
time
of termination and (ii) shall not be obligated to perform any obligation of
the
Master Servicer under Section 3.20 or 3.21 with respect to any period of time
during which the Trustee was not the Master Servicer. As compensation therefor,
but subject to Section 6.05, the Trustee shall be entitled to compensation
which the Master Servicer would have been entitled to retain if the Master
Servicer had continued to act hereunder, except for those amounts due the Master
Servicer as reimbursement permitted under this Agreement for advances previously
made or expenses previously incurred. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable
so to
act, appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a ▇▇▇▇▇▇ ▇▇▇- or
▇▇▇▇▇▇▇ Mac-approved servicer, and with respect to a successor to the Master
Servicer only, having a net worth of not less than $10,000,000, 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;
provided, that the Trustee shall obtain consent from the NIMS Insurer and a
letter or other evidence each Rating Agency that the ratings, if any, on each
of
the Certificates will not be lowered as a result of the selection of the
successor to the Master Servicer. Pending appointment of a successor to the
Master Servicer hereunder, the Trustee shall 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 out of payments
on
the Mortgage Loans as it and such successor shall agree; provided, however,
that
the provisions of Section 6.05 shall apply, the compensation shall not be
in excess of that which the Master Servicer would have been entitled to if
the
Master Servicer had continued to act hereunder, and that such successor shall
undertake and assume the obligations of the Trustee to pay compensation to
any
third Person acting as an agent or independent contractor in the performance
of
master servicing responsibilities hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to
effectuate any such succession.
If
the
Master Servicer and the Trust Administrator are the same entity, then at any
time the Master Servicer resigns or is removed as Master Servicer, the Trust
Administrator shall also be removed hereunder. All reasonable Master Servicing
Transfer Costs shall be paid by the predecessor Master Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Master Servicer defaults in its obligation to pay such costs, such costs shall
be paid by the successor Master Servicer or the Trustee (in which case the
successor Master Servicer or the Trustee, as applicable, shall be entitled
to
reimbursement therefor from the assets of the Trust Fund).
(b) If
the
Trustee shall succeed to any duties of the Master Servicer respecting the
Mortgage Loans as provided herein, it shall do so in a separate capacity and
not
in its capacity as Trustee and, accordingly, the provisions of Article VIII
shall be inapplicable to the Trustee in its duties as the successor to the
Master Servicer in the master servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VI, however, shall apply to it in its capacity as
successor Master Servicer.
SECTION
7.04. Notification
to Certificateholders.
(a) Upon
any
termination of the Servicer or the Master Servicer pursuant to Section 7.01
above or any appointment of a successor to the Servicer or Master Servicer
pursuant to Section 7.02 or Section 7.03 above, the Trust Administrator, or
in the event of the termination of the Master Servicer, the Trustee (or such
other successor Trust Administrator) shall give prompt written notice thereof
to
the Servicer, the Credit Risk Manager, the NIMS Insurer, the Master Servicer
and
the Certificateholders at their respective addresses appearing in the
Certificate Register.
(b) Not
later
than the later of 60 days after the occurrence of any event, which constitutes
or which, with notice or lapse of time or both, would constitute a Servicer
Event of Default or a Master Servicer Event of Termination or five days after
a
Responsible Officer of the Trust Administrator (in the case of a Servicer Event
of Default) or the Trustee (in the case of a Master Servicer Event of
Termination) becomes aware of the occurrence of such an event, the Trust
Administrator or Trustee, as applicable, shall transmit by mail to the NIMS
Insurer and to all Holders of Certificates notice of each such occurrence,
unless such default, Servicer Event of Default or Master Servicer Event of
Termination shall have been cured or waived.
SECTION
7.05. Waiver
of
Servicer Events of Default and Master Servicer Events of
Termination.
The
Holders representing at least 66% of the Voting Rights (with the consent of
the
NIMS Insurer) evidenced by all Classes of Certificates affected by any default,
Servicer Event of Default or Master Servicer Event of Termination hereunder
may
waive such default, Servicer Event of Default or Master Servicer Event of
Termination; provided, however, that a Servicer Event of Default under clause
(i) or (viii) of Section 7.01(a) or Master Servicer Event of Termination under
clause (i) or (vi) of Section 7.01(b) may be waived only by all of the
Holders of the Regular Certificates (with the consent of the NIMS Insurer).
Upon
any such waiver of a default, Servicer Event of Default or Master Servicer
Event
of Termination, such default, Servicer Event of Default or Master Servicer
Event
of Termination shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent
or
other default, Servicer Event of Default or Master Servicer Event of Termination
or impair any right consequent thereon except to the extent expressly so waived.
Notice of any such waiver shall be given by the Trust Administrator or the
Trustee as applicable, to the Rating Agencies and the NIMS Insurer.
SECTION
7.06. Survivability
of Servicer and Master Servicer Liabilities.
Notwithstanding
anything herein to the contrary, upon termination of the Servicer or the Master
Servicer hereunder, any liabilities
of
the Servicer or the Master Servicer, as applicable, which accrued prior to
such
termination shall survive such termination.
ARTICLE
VIII
CONCERNING
THE TRUSTEE AND THE TRUST ADMINISTRATOR
SECTION
8.01. Duties
of
Trustee and Trust Administrator.
The
Trustee and the Trust Administrator, prior to the occurrence of a Servicer
Event
of Default or Master Servicer Event of Termination and after the curing of
all
Servicer Events of Default or Master Servicer Events of Termination which may
have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If a Servicer Event of Default or
Master Servicer Event of Termination has occurred (which has not been cured)
of
which a Responsible Officer has knowledge, each of the Trustee and the Trust
Administrator 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 man would exercise or use under the circumstances in the conduct of
his
own affairs.
Each
of
the Trustee and the Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement; provided, however,
that neither the Trustee nor the Trust Administrator will be responsible for
the
accuracy or content of any such resolutions, certificates, statements, opinions,
reports, documents or other instruments. If any such instrument is found not
to
conform to the requirements of this Agreement in a material manner the Trustee
or the Trust Administrator, as applicable, shall take such action as it deems
appropriate to have the instrument corrected, and if the instrument is not
corrected to the Trustee’s or the Trust Administrator’s satisfaction, the
Trustee or the Trust Administrator, as applicable, will provide notice thereof
to the Certificateholders and the NIMS Insurer.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however,
that:
(1) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event of
Termination, and after the curing of all such Servicer Events of Default or
Master Servicer Events of Termination which may have occurred, the duties and
obligations of the Trustee and the Trust Administrator shall be determined
solely by the express provisions of this Agreement, the Trustee and the Trust
Administrator shall not be liable except for the performance of such duties
and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Trust Administrator and, in the absence of bad faith on the part of
the
Trustee or the Trust Administrator, as applicable, the Trustee or the Trust
Administrator, as applicable, 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 or the Trust Administrator,
as
the case may be, and conforming to the requirements of this
Agreement;
(2) Neither
the Trustee nor the Trust Administrator shall be personally liable for an error
of judgment made in good faith by a Responsible Officer of the Trustee or the
Trust Administrator, as applicable, unless it shall be proved that the Trustee
or the Trust Administrator, as the case may be, was negligent in ascertaining
the pertinent facts;
(3) Neither
the Trustee nor the Trust Administrator shall be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the NIMS Insurer or the Holders of Certificates
evidencing not less than 51% of the Voting Rights relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or the Trust Administrator, as applicable, or exercising or omitting to exercise
any trust or power conferred upon the Trustee, under this Agreement;
and
(4) The
Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any default, Servicer Event of Default or Master Servicer Event
of
Termination unless a Responsible Officer of the Trustee at the Corporate Trust
Office obtains actual knowledge of such failure or the Trustee receives written
notice of such failure from the Depositor, the Servicer or the Holders of
Certificates evidencing not less than 51% of the Voting Rights.
Neither
the Trustee nor the Trust Administrator shall be required to expend or risk
its
own funds or otherwise incur financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably 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.
SECTION
8.02. Certain
Matters Affecting the Trustee and the Trust Administrator
(a) Except
as
otherwise provided in Section 8.01:
(1) Either
the Trustee or the Trust Administrator may request and rely upon, and shall
be
protected in acting or refraining from acting upon, any resolution, Officers’
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document reasonably believed by it to be genuine and to have
been
signed or presented by the proper party or parties, and the manner of obtaining
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee or the Trust Administrator may prescribe;
(2) Either
the Trustee or the Trust Administrator may consult with counsel and any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(3) Neither
the Trustee nor the Trust Administrator shall be under any obligation to
exercise any of the 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 or the NIMS
Insurer, pursuant to the provisions of this Agreement, unless such
Certificateholders or the NIMS Insurer, as applicable, shall have offered to
the
Trustee or the Trust Administrator, as applicable, reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the right of the Trustee or the Trust Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Trust Administrator shall
be answerable for other than its negligence or willful misconduct in the
performance of any such act; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of a Master Servicer Event
of
Termination of which the Trustee has received written notice or of which a
Responsible Officer of the Trustee has actual knowledge (which has not been
cured or waived), to exercise such of the rights and powers vested in it by
this
Agreement, and to use the same degree of care and skill in their exercise,
as a
prudent person would exercise under the circumstances in the conduct of his
own
affairs;
(4) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event of
Termination hereunder and after the curing or waiver of all Servicer Events
of
Default or Master Servicer Events of Termination which may have occurred,
neither the Trustee nor the Trust Administrator shall be personally liable
for
any action taken, suffered or omitted by it in good faith and believed by it
to
be authorized or within the discretion or rights or powers conferred upon it
by
this Agreement;
(5) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event of
Termination and after the curing of all Servicer Events of Default or Master
Servicer Events of Termination which may have occurred, neither the Trustee
nor
the Trust Administrator shall 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 documents, unless requested in writing to do so by the NIMS Insurer or the
Holders of Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee or the
Trust Administrator, as applicable, 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 or the Trust Administrator, as applicable, not reasonably assured
to
the Trustee or the Trust Administrator, as applicable, by the security afforded
to it by the terms of this Agreement, the Trustee or the Trust Administrator,
as
applicable, may require reasonable indemnity against such cost, expense or
liability as a condition to such proceeding; and
(6) Either
the Trustee or the Trust Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, custodians or nominees.
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by it without the possession of
any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in its name for the benefit of all the Holders of
such
Certificates, subject to the provisions of this Agreement.
SECTION
8.03. Neither
Trustee nor Trust Administrator Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Trust Administrator, the authentication of the Trust Administrator on the
Certificates, the acknowledgments of the Trustee contained in Article II and
the
representations and warranties of the Trustee and the Trust Administrator in
Section 8.13) shall be taken as the statements of the Depositor and neither
the Trustee nor the Trust Administrator assumes any responsibility for their
correctness. Neither the Trustee nor the Trust Administrator makes any
representations or warranties as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 8.12) or of the
Certificates (other than the signature of the Trust Administrator and
authentication of the Trust Administrator on the Certificates) or of any
Mortgage Loan or related document. Neither the Trustee nor the Trust
Administrator shall be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for
the
use or application of any funds paid to the Depositor, the Servicer or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account by the Servicer or the Distribution Account by
the
Master Servicer.
SECTION
8.04. Trustee
and Trust Administrator May Own Certificates.
Each
of
the Trustee and the Trust Administrator in its individual capacity or any other
capacity may become the owner or pledgee of Certificates with the same rights
it
would have if it were not Trustee or Trust Administrator, as applicable. Each
of
the Trustee and the Trust Administrator in its individual capacity or any other
capacity may transact any banking and trust business with the Originator, the
Servicer, the Depositor or their Affiliates.
SECTION
8.05. Trust
Administrator’s and Trustee’s Fees and Expenses.
On
each
Distribution Date, the Trust Administrator shall withdraw from the Distribution
Account and pay to itself the Administration Fee. The annual fees of the Trustee
hereunder and of the Custodian shall be paid in accordance with side letter
agreements with the Trust Administrator and at the sole expense of the Trust
Administrator. The Trustee, the Trust Administrator or any director, officer,
employee or agent of any of them, shall be indemnified by the Trust Fund and
held harmless against any loss, liability or expense (not including expenses
and
disbursements incurred or made by the Trustee or the Trust Administrator,
including the compensation and the expenses and disbursements of its agents
and
counsel, in the ordinary course of the Trustee’s or the Trust Administrator’s
performance in accordance with the provisions of this Agreement) incurred by
the
Trustee or by the Trust Administrator arising out of or in connection with
the
acceptance or administration of the obligations and duties of the Trustee or
the
Trust Administrator under this Agreement, other than any loss, liability or
expense (i) resulting from a breach of the Servicer’s or the Master Servicer’s
obligations and duties under this Agreement for which the Trustee or the Trust
Administrator, as applicable, is indemnified under this Agreement or (ii) any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence of the Trustee or of the Trust Administrator, as applicable,
in
the performance of its duties hereunder or by reason of the Trustee’s or the
Trust Administrator’s, as applicable, reckless disregard of obligations and
duties hereunder or as a result of a breach of the Trustee’s or the Trust
Administrator’s, as applicable, obligations under Article X hereof. It is
understood by the parties hereto that the Custodian is entitled to
indemnification from the Trust pursuant to Section 11 of the Custodial
Agreement. Any amounts payable to the Trustee, the Trust Administrator or any
director, officer, employee or agent of the Trustee or the Trust Administrator,
in respect of the indemnification provided by this Section 8.05, or
pursuant to any other right of reimbursement from the Trust Fund that the
Trustee, the Trust Administrator or any director, officer, employee or agent
of
the Trustee or the Trust Administrator, may have hereunder in its capacity
as
such, may be withdrawn by the Trust Administrator for payment to the applicable
indemnified Person from the Distribution Account at any time. The foregoing
indemnity shall survive the resignation or removal of the Trustee or the Trust
Administrator.
SECTION
8.06. Eligibility
Requirements for Trustee and Trust Administrator.
Each
of
the Trustee and the Trust Administrator hereunder shall at all times be an
entity duly organized and validly existing 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 and subject to supervision or examination by federal or state
authority. If such entity 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 entity shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
principal offices of each of the Trustee and the Trust Administrator (other
than
the initial Trustee and initial Trust Administrator) shall be in a state with
respect to which an Opinion of Counsel has been delivered to such Trustee or
Trust Administrator, as applicable, at the time such Trustee or Trust
Administrator, as applicable, is appointed Trustee or Trust Administrator,
as
applicable, to the effect that the Trust will not be a taxable entity under
the
laws of such state. In case at any time the Trustee or the Trust Administrator
shall cease to be eligible in accordance with the provisions of this
Section 8.06, the Trustee or the Trust Administrator, as applicable, shall
resign immediately in the manner and with the effect specified in
Section 8.07.
SECTION
8.07. Resignation
and Removal of the Trustee or Trust Administrator.
The
Trustee or the Trust Administrator may at any time resign and be discharged
from
the trusts hereby created by giving written notice thereof to the Depositor,
the
NIMS Insurer, the Servicer, the Master Servicer, each Rating Agency and, if
the
Trustee is resigning, to the Trust Administrator, or, if the Trust Administrator
is resigning, to the Trustee. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Trustee or Trust Administrator,
(which may be the same Person in the event both the Trustee and the Trust
Administrator resign or are removed) acceptable to the NIMS Insurer by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the
resigning Trustee or Trust Administrator, as applicable, and one copy to the
successor Trustee or Trust Administrator. If no successor Trustee or Trust
Administrator, as applicable, shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or Trust Administrator may petition any court of competent
jurisdiction for the appointment of a successor Trustee or Trust Administrator,
as applicable.
If
the
Trust Administrator and the Master Servicer are the same entity, then at any
time the Trust Administrator resigns or is removed as Trust Administrator,
the
Master Servicer shall also be removed hereunder.
If
at any
time the Trustee or the Trust Administrator shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign
after written request therefor by the Depositor or the NIMS Insurer (or in
the
case of the Trust Administrator, the Trustee), or if at any time the Trustee
or
the Trust Administrator shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or the Trust Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or the Trust Administrator or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then
the
Depositor, the NIMS Insurer, the Servicer or the Master Servicer may remove
the
Trustee or the Trust Administrator, as applicable. If the Depositor, the
Servicer or the Master Servicer removes the Trustee or the Trust Administrator
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Trustee or Trust Administrator, as applicable,
acceptable to the NIMS Insurer, by written instrument, in duplicate, one copy
of
which instrument shall be delivered to the Trustee or Trust Administrator so
removed and one copy to the successor Trustee or Trust
Administrator.
The
Holders of Certificates entitled to at least 51% of the Voting Rights (or the
NIMS Insurer upon failure of the Trustee to perform its obligations hereunder)
may at any time remove the Trustee or the Trust Administrator and appoint a
successor trustee acceptable to the NIMS Insurer, by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to
the
Depositor, one complete set to the Trustee or Trust Administrator so removed
and
one complete set to the successor so appointed. A copy of such instrument shall
be delivered to the Certificateholders, the Servicer and the Master Servicer
by
the Depositor.
The
Trust
Administrator (i) may not be the Originator, the Servicer, the Depositor or
an
affiliate of the Depositor unless the Trust Administrator is an institutional
trust department, (ii) must be authorized to exercise corporate trust powers
under the laws of its jurisdiction of organization, and (iii) must be rated
at
least “A/F1” by Fitch Ratings Inc., if Fitch Ratings Inc. is a Rating Agency, or
the equivalent rating by S&P or ▇▇▇▇▇’▇, as evidenced by a Rating Agency
confirmation. If no successor Trust Administrator shall have been appointed
and
shall have accepted appointment within 60 days after the Trust Administrator
ceases to be the Trust Administrator pursuant to this Section 8.07, then
the Trustee shall perform the duties of the Trust Administrator pursuant to
this
Agreement. The Trustee shall notify the Rating Agencies of any change of Trust
Administrator.
Any
resignation or removal of the Trustee or Trust Administrator and appointment
of
a successor Trustee or Trust Administrator pursuant to any of the provisions
of
this Section shall not become effective until acceptance of appointment by
the successor trustee as provided in Section 8.08.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the Trust
Administrator shall at all times be the same Person.
SECTION
8.08. Successor
Trustee or Trust Administrator.
Any
successor Trustee or Trust Administrator appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
NIMS Insurer, the Servicer, the Master Servicer and to its predecessor Trustee
or Trust Administrator an instrument accepting such appointment hereunder,
and
thereupon the resignation or removal of the predecessor Trustee or Trust
Administrator shall become effective, and such successor Trustee or Trust
Administrator, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Trust
Administrator. The Depositor and the predecessor Trustee or Trust Administrator
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee Trust Administrator all such rights, powers, duties and
obligations.
No
successor Trustee or Trust Administrator shall accept appointment as provided
in
this Section 8.08 unless at the time of such acceptance such successor
Trustee or Trust Administrator shall be eligible under the provisions of
Section 8.06 and the appointment of such successor Trustee or Trust
Administrator shall not result in a downgrading of the Regular Certificates
by
any Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon
acceptance of appointment by a successor Trustee or Trust Administrator as
provided in this Section 8.08, the successor Trustee or Trust Administrator
shall mail notice of the appointment of a successor Trustee or Trust
Administrator hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to each Rating Agency.
SECTION
8.09. Merger
or
Consolidation of Trustee or Trust Administrator.
Any
entity into which the Trustee or the Trust Administrator may be merged or
converted or with which it may be consolidated, or any entity resulting from
any
merger, conversion or consolidation to which the Trustee or the Trust
Administrator shall be a party, or any entity succeeding to the business of
the
Trustee or Trust Administrator, shall be the successor of the Trustee or the
Trust Administrator hereunder, as applicable, provided such entity shall be
eligible under the provisions of Section 8.06 and 8.08, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
SECTION
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of REMIC I or property
securing the same may at the time be located, the Trustee shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee and the NIMS Insurer to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of REMIC I, and to vest in such Person or Persons, in such
capacity, such title to REMIC I, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Trustee may consider necessary or desirable. Any such
co-trustee or separate trustee shall be subject to the written approval of
the
NIMS Insurer. If the NIMS Insurer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall
be
required under Section 8.08 hereof.
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 8.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular
act
or acts are to be performed by the Trustee (whether as Trustee hereunder or
as
successor to a defaulting 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 REMIC
I or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trust
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee, or separately,
as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
NIMS Insurer.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee or co-trustee.
SECTION
8.11. Appointment
of Office or Agency; Appointment of Custodian.
The
Trust
Administrator will appoint an office or agency in the City of Minneapolis,
Minnesota where the Certificates may be surrendered for registration of transfer
or exchange, and presented for final distribution, and where notices and demands
to or upon the Trust Administrator in respect of the Certificates and this
Agreement may be served.
The
Trustee may, with the consent of the Depositor, the Servicer, the Master
Servicer and the NIMS Insurer, appoint a Custodian to hold all or a portion
of
the Mortgage Files as agent for the Trustee, by entering into the Custodial
Agreement. The appointment of the Custodian may be terminated pursuant to the
Custodial Agreement and a substitute Custodian appointed therefor upon the
reasonable request of the Servicer, the Master Servicer or the NIMS Insurer
to
the Trustee, the consent to which shall not be unreasonably withheld. Deutsche
Bank National Trust Company is hereby appointed as Custodian, and the Depositor,
the Servicer and the Master Servicer each consent to such appointment. Subject
to Article VIII hereof, the Trustee agrees to comply with the terms of the
Custodial Agreement and to enforce the terms and provisions thereof against
the
Custodian, if applicable, for the benefit of the Certificateholders having
an
interest in any Mortgage File held by the Custodian. The Custodian shall be
a
depository institution or trust company subject to supervision by federal or
state authority, shall have combined capital and surplus of at least $10,000,000
and shall be qualified to do business in the jurisdiction in which it holds
any
Mortgage File. Subject to Section 8.02(a), in no event shall the
appointment of the Custodian pursuant to the Custodial Agreement diminish the
obligations of the Trustee hereunder.
SECTION
8.12. Representations
and Warranties.
Each
of
the Trustee and the Trust Administrator hereby represents and warrants to the
Servicer, the Master Servicer and the Depositor, as of the Closing Date,
that:
(1) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America.
(2) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its articles
of association or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in
the
breach of, any material agreement or other instrument to which it is a party
or
which is applicable to it or any of its assets.
(3) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(4) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of it,
enforceable against it in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium
and
other laws affecting the enforcement of creditors’ rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(5) It
is not
in violation of, and its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in its good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of
it
to perform its obligations under this Agreement or its financial
condition.
(6) No
litigation is pending or, to the best of its knowledge, threatened against
it,
which would prohibit it from entering into this Agreement or, in its good faith
reasonable judgment, is likely to materially and adversely affect either the
ability of it to perform its obligations under this Agreement or its financial
condition.
ARTICLE
IX
TERMINATION
SECTION
9.01. Termination
Upon Repurchase or Liquidation of All Mortgage Loans.
(a) Subject
to Section 9.02, the respective obligations and responsibilities under this
Agreement of the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee (other than the indemnification obligations of
the
Servicer and the Master Servicer pursuant to Section 6.03 and of the
Servicer to make remittances to the Trust Administrator and the Trust
Administrator to make payments in respect of the REMIC I Regular Interests
and
the Classes of Certificates as hereinafter set forth) shall terminate upon
payment to the Certificateholders and the deposit of all amounts held by or
on
behalf of the Trust Administrator and required hereunder to be so paid or
deposited on the Distribution Date coinciding with or following the earlier
to
occur of (i) the purchase by the Terminator (as defined below) of all Mortgage
Loans and each REO Property remaining in REMIC I and (ii) the final payment
or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I; provided, however, that in no event
shall the trust created hereby continue beyond the earlier of (i) the expiration
of 21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof and (ii) the Latest Possible Maturity Date as defined
in the Preliminary Statement. Subject to Section 3.10 hereof, the purchase
by the Terminator of all Mortgage Loans and each REO Property remaining in
REMIC
I shall be at a price (the “Termination Price”) equal to the greater of (i) the
Stated Principal Balance of the Mortgage Loans and the appraised value of any
REO Properties, such appraisal to be conducted by an Independent appraiser
mutually agreed upon by the Terminator and the Trust Administrator in their
reasonable discretion and (ii) the fair market value of all of the assets of
REMIC I (as determined by the Terminator and the Trust Administrator, as of
the
close of business on the third Business Day next preceding the date upon which
notice of any such termination is furnished to Certificateholders pursuant
to
clause (c) of this Section 9.01) in each case, plus accrued and unpaid
interest thereon at the weighted average of the Mortgage Rates through the
end
of the Due Period preceding the final Distribution Date plus unreimbursed
Advances, Servicing Advances, any unpaid Servicing Fees and Administration
Fees
allocable to such Mortgage Loans and REO Properties and any other amounts owed
to the Servicer, the Master Servicer, the Trust Administrator or the Trustee
under this Agreement, any accrued and unpaid Net WAC Rate Carryover Amount
and
any Swap Termination Payment payable to the Swap Provider then remaining unpaid
or which is due to the exercise of such option; provided, however, such option
may only be exercised if the Termination Price is sufficient to pay all interest
accrued on, as well as amounts necessary to retire the principal balance of,
each class of notes issued pursuant to the Indenture and any remaining amounts
owed to the trustee under the Indenture and the NIMS Insurer on the date such
notes are retired.
(b) The
Servicer (in such capacity, the “Terminator”) shall have the right, to purchase
all of the Mortgage Loans and each REO Property remaining in REMIC I pursuant
to
clause (i) of the preceding paragraph no later than the Determination Date
in
the month immediately preceding the Distribution Date on which the Certificates
will be retired; provided, however, that the Terminator may elect to purchase
all of the Mortgage Loans and each REO Property remaining in REMIC I pursuant
to
clause (i) above only if the aggregate Stated Principal Balance of the Mortgage
Loans and each REO Property remaining in the Trust Fund at the time of such
election is equal to or less than 10% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date. In addition, to the extent that
the Terminator has not exercised such option, the Master Servicer or the NIMS
Insurer, if any, individually or collectively, may purchase all of the Mortgage
Loans and any REO Properties and retire the Certificates when the aggregate
Stated Principal Balance of the Mortgage Loans and any REO Properties is equal
to or less than 5% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-off Date. By acceptance of the Residual Certificates, the
Holder of the Residual Certificates agrees for so long as any notes insured
by
the NIMS Insurer and secured by all or a portion of the Class CE, Class P or
Class R Certificates are outstanding, in connection with any termination
hereunder, to assign and transfer any amounts in excess of par, and to the
extent received in respect of such termination, to pay any such amounts to
the
Holders of the Class CE Certificates.
(c) Notice
of
the liquidation of the Certificates shall be given promptly by the Trust
Administrator by letter to Certificateholders and the NIMS Insurer mailed (a)
in
the event such notice is given in connection with the purchase of the Mortgage
Loans and each REO Property by the Terminator, not earlier than the
10th
day and
not later than the 20th
day of
the month next preceding the month of the final distribution on the Certificates
or (b) otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and the final payment in respect
of the REMIC I Regular Interests and the Certificates will be made upon
presentation and surrender of the related Certificates at the office of the
Trust Administrator therein designated, (ii) the amount of any such final
payment, (iii) that no interest shall accrue in respect of the REMIC I Regular
Interests or the Certificates from and after the Accrual Period relating to
the
final Distribution Date therefor and (iv) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only
upon presentation and surrender of the Certificates at the office of the Trust
Administrator. In the event such notice is given in connection with the purchase
of all of the Mortgage Loans and each REO Property remaining in REMIC I by
the
Terminator, the Terminator shall deliver to the Trust Administrator for deposit
in the Distribution Account not later than the last Business Day of the month
next preceding the month of the final distribution on the Certificates an amount
in immediately available funds equal to the Termination Price. The Trust
Administrator shall remit to the Servicer from such funds deposited in the
Distribution Account (i) any amounts which the Servicer would be permitted
to
withdraw and retain from the Collection Account pursuant to Section 3.11 and
(ii) any other amounts otherwise payable by the Trust Administrator to the
Servicer from amounts on deposit in the Distribution Account pursuant to the
terms of this Agreement, in each case prior to making any final distributions
pursuant to Section 9.01(d) below. Upon certification to the Trustee and the
Trust Administrator by the Terminator of the making of such final deposit,
the
Trust Administrator shall promptly release to the Terminator the Mortgage Files
for the remaining Mortgage Loans, and the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such
transfer.
(d) Upon
presentation of the Certificates by the Certificateholders on the final
Distribution Date, the Trust Administrator shall distribute to each
Certificateholder so presenting and surrendering its Certificates the amount
otherwise distributable on such Distribution Date in accordance with
Section 4.01 in respect of the Certificates so presented and surrendered.
Any funds not distributed to any Holder or Holders of Certificates being retired
on such Distribution Date because of the failure of such Holder or Holders
to
tender their Certificates shall, on such date, be set aside and held in trust
and credited to the account of the appropriate non-tendering Holder or Holders.
If any Certificates as to which notice has been given pursuant to this
Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trust Administrator shall
mail a second notice to the remaining non-tendering Certificateholders to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trust Administrator shall, directly or through an agent, mail a final notice
to the remaining non-tendering Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining the funds in trust and
of
contacting such Certificateholders shall be paid out of the assets remaining
in
the Trust Fund. If within one year after the final notice any such Certificates
shall not have been surrendered for cancellation, the Trust Administrator shall
pay to UBS Securities LLC all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trust Administrator as a result of such Certificateholder’s failure to
surrender its Certificate(s) for final payment thereof in accordance with this
Section 9.01. Any such amounts held in trust by the Trust Administrator
shall be held in an Eligible Account and the Trust Administrator may direct
any
depository institution maintaining such account to invest the funds in one
or
more Permitted Investments. All income and gain realized from the investment
of
funds deposited in such accounts held in trust by the Trust Administrator shall
be for the benefit of the Trust Administrator; provided, however, that the
Trust
Administrator shall deposit in such account the amount of any loss of principal
incurred in respect of any such Permitted Investment made with funds in such
accounts immediately upon the realization of such loss.
Immediately
following the deposit of funds in trust hereunder in respect of the
Certificates, the Trust Fund shall terminate.
SECTION
9.02. Additional
Termination Requirements.
(a) In
the
event that the Terminator purchases all the Mortgage Loans and each REO Property
or the final payment on or other liquidation of the last Mortgage Loan or REO
Property remaining in REMIC I pursuant to Section 9.01, the Trust Fund
shall be terminated in accordance with the following additional requirements,
unless the Trust Administrator and the Servicer have received an Opinion of
Counsel, which Opinion of Counsel shall be at the expense of the Terminator
(or
in connection with a termination resulting from the final payment on or other
liquidation of the last Mortgage Loan or REO Property remaining in REMIC I,
which Opinion of Counsel shall be at the expense of the person seeking
nonadherence to the following additional requirements but which in no event
shall be at the expense of the Trust Fund or, unless it is the person seeking
nonadherence to the following additional requirements, the Servicer or the
Trust
Administrator), to the effect that the failure of REMIC I to comply with such
additional requirements of this Section 9.02 will not (A) result in the
imposition on the Trust Fund of taxes on “prohibited transactions,” as described
in Section 860F of the Code, or (B) cause REMIC I to fail to qualify as a
REMIC at any time that any Certificate is outstanding:
(1) The
Trust
Administrator shall specify the first day in the 90-day liquidation period
in a
statement attached to each Trust REMIC’s final Tax Return pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder, as evidenced by an Opinion of Counsel obtained at the expense of
the
Terminator;
(2) During
such 90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell all of the assets
of
REMIC I to the Terminator for cash; and
(3) At
the
time of the making of the final payment on the Certificates, the Trust
Administrator shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Residual Certificates all cash on hand in the
Trust Fund (other than cash retained to meet claims), and the Trust Fund shall
terminate at that time.
(b) At
the
expense of the Terminator, the Depositor shall prepare or cause to be prepared
the documentation required in connection with the adoption of a plan of
liquidation of each Trust REMIC pursuant to this Section 9.02.
(c) By
their
acceptance of Certificates, the Holders thereof hereby agree to authorize the
Trust Administrator to specify the 90-day liquidation period for each Trust
REMIC, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE
X
REMIC
PROVISIONS
SECTION
10.01. REMIC
Administration.
(a) The
Trustee shall elect to treat each Trust REMIC as a REMIC under the Code and,
if
necessary, under applicable state law. Each such election will be made by the
Trustee on Form 1066 or other appropriate federal tax or information return
or
any appropriate state return for the taxable year ending on the last day of
the
calendar year in which the Certificates are issued. For the purposes of
the REMIC election in respect of REMIC I, the REMIC I Regular Interests shall
be
designated as the Regular Interests in REMIC I and the Class R-I Interest shall
be designated as the Residual Interest in REMIC I. For the purposes of the
REMIC
election in respect of REMIC II, the REMIC II Regular Interests shall be
designated as the Regular Interests in REMIC II and the Class R-II Interest
shall be designated as the Residual Interest in REMIC II. The Class A
Certificates, the Mezzanine Certificates, the Class CE Interest, the Class
P
Interest and the SWAP-IO Interest, shall be designated as the Regular Interests
in REMIC III and the Class R-III Interest shall be designated as the Residual
Interest in REMIC III. The CE Certificates shall be designated as the Regular
Interests in REMIC IV and the Class R-IV Interest shall be designated as the
Residual Interest in REMIC IV. The P Certificates shall be designated as the
Regular Interests in REMIC V and the Class R-V Interest shall be designated
as
the Residual Interest in REMIC V. REMIC VI Regular Interest SWAP-IO shall be
designated as the Regular Interests in REMIC VI and the Class R-VI Interest
shall be designated as the Residual Interest in REMIC VI. The Trustee shall
not
permit the creation of any “interests” in any Trust REMIC (within the meaning of
Section 860G of the Code) other than the interests
identified above as Regular Interests or Residual Interests in REMIC I, REMIC
II, REMIC III, REMIC IV, REMIC V or REMIC VI.
(b) The
Closing Date is hereby designated as the “Startup Day” of each Trust REMIC
within the meaning of Section 860G(a)(9) of the Code.
(c) The
Trust
Administrator shall be reimbursed for any and all expenses relating to any
tax
audit of the Trust Fund (including, but not limited to, any professional fees
or
any administrative or judicial proceedings with respect to any Trust REMIC
that
involve the Internal Revenue Service or state tax authorities), including the
expense of obtaining any tax related Opinion of Counsel except as specified
herein. The Trust Administrator, as agent for each Trust REMIC’s tax matters
person shall (i) act on behalf of the Trust Fund in relation to any tax matter
or controversy involving any Trust REMIC and (ii) represent the Trust Fund
in
any administrative or judicial proceeding relating to an examination or audit
by
any governmental taxing authority with respect thereto. The holder of the
largest Percentage Interest of the Residual Certificates shall be designated,
in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1, as the tax matters person of the related
REMIC created hereunder. By their acceptance thereof, the holder of the largest
Percentage Interest of the Residual Certificates hereby agrees to irrevocably
appoint the Trust Administrator or an Affiliate as its agent to perform all
of
the duties of the tax matters person for the Trust Fund.
(d) The
Trust
Administrator shall prepare, sign and file all of the Tax Returns (including
Form 8811, which must be filed within 30 days following the Closing Date) in
respect of each Trust REMIC. The expenses of preparing and filing such returns
shall be borne by the Trust Administrator without any right of reimbursement
therefor.
(e) The
Trust
Administrator shall perform on behalf of each Trust REMIC all reporting and
other tax compliance duties that are the responsibility of such REMIC under
the
Code, the REMIC Provisions or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Among its other duties,
as required by the Code, the REMIC Provisions or other such compliance guidance,
the Trust Administrator shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any Person who is not
a
Permitted Transferee, (ii) to the Certificateholders such information or reports
as are required by the Code or the REMIC Provisions including reports relating
to interest, original issue discount and market discount or premium (using
the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service
the
name, title, address and telephone number of the person who will serve as the
representative of each Trust REMIC. The Depositor shall provide or cause to
be
provided to the Trust Administrator, within ten (10) days after the Closing
Date, all information or data that the Trust Administrator reasonably determines
to be relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The
Trust
Administrator shall take such action and shall cause each Trust REMIC to take
such action as shall be necessary to create or maintain the status thereof
as a
REMIC under the REMIC Provisions. Neither the Trust Administrator nor the
Trustee shall take any action or cause the Trust Fund to take any action or
fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of any Trust REMIC as a REMIC or (ii) result in the imposition of a
tax
upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an “Adverse REMIC Event”) unless the Trustee, the Trust
Administrator and the NIMS Insurer have received an Opinion of Counsel,
addressed to the Trustee and the Trust Administrator (at the expense of the
party seeking to take such action but in no event at the expense of the Trustee
or the Trust Administrator) to the effect that the contemplated action will
not,
with respect to any Trust REMIC, endanger such status or result in the
imposition of such a tax, nor shall the Servicer take or fail to take any action
(whether or not authorized hereunder) as to which the Trustee, the Trust
Administrator or the NIMS Insurer has advised it in writing that it has received
an Opinion of Counsel to the effect that an Adverse REMIC Event could occur
with
respect to such action; provided that the Servicer may conclusively rely on
such
Opinion of Counsel and shall incur no liability for its action or failure to
act
in accordance with such Opinion of Counsel. In addition, prior to taking any
action with respect to any Trust REMIC or the respective assets of each, or
causing any Trust REMIC to take any action, which is not contemplated under
the
terms of this Agreement, the Servicer will consult with the Trustee, the Trust
Administrator, the Master Servicer, the NIMS Insurer or their respective
designees, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to any Trust REMIC and the Servicer
shall not take any such action or cause any Trust REMIC to take any such action
as to which the Trustee, the Trust Administrator, the Master Servicer or the
NIMS Insurer has advised it in writing that an Adverse REMIC Event could occur;
provided that the Servicer may conclusively rely on such writing and shall
incur
no liability for its action or failure to act in accordance with such writing.
The Trustee, the Trust Administrator, the Master Servicer or the NIMS Insurer
may consult with counsel to make such written advice, and the cost of same
shall
be borne by the party seeking to take the action not permitted by this
Agreement, but in no event shall such cost be an expense of the Trustee, the
Trust Administrator or the Master Servicer. At all times as may be required
by
the Code, the Trust Administrator will ensure that substantially all of the
assets of REMIC I will consist of “qualified mortgages” as defined in
Section 860G(a)(3) of the Code and “permitted investments” as defined in
Section 860G(a)(5) of the Code, to the extent such obligations are within
the Trust Administrator’s control and not otherwise inconsistent with the terms
of this Agreement.
(g) In
the
event that any tax is imposed on “prohibited transactions” of any REMIC created
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income
from foreclosure property” of such REMIC as defined in Section 860G(c) of
the Code, on any contributions to any such REMIC after the Startup Day therefor
pursuant to Section 860G(d) of the Code, or any other tax is imposed by the
Code or any applicable provisions of state or local tax laws, such tax shall
be
charged (i) to the Trust Administrator pursuant to Section 10.03 hereof, if
such tax arises out of or results from a breach by the Trust Administrator
of
any of its obligations under this Article X, (ii) to the Trustee pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under this Article X, (iii) to the Master
Servicer pursuant to Section 10.03 hereof, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations under
Article III or this Article X, (iv) to the Servicer pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X or (v) against amounts on deposit in the Distribution Account and shall be
paid by withdrawal therefrom.
(h) [Reserved].
(i) The
Trust
Administrator shall, for federal income tax purposes, maintain books and records
with respect to each Trust REMIC on a calendar year and on an accrual
basis.
(j) Following
the Startup Day, none of the Servicer, the Master Servicer, the Trust
Administrator or the Trustee shall accept any contributions of assets to any
Trust REMIC other than in connection with any Qualified Substitute Mortgage
Loan
delivered in accordance with Section 2.03 unless it shall have received an
Opinion of Counsel to the effect that the inclusion of such assets in the Trust
Fund will not cause the related REMIC to fail to qualify as a REMIC at any
time
that any Certificates are outstanding or subject such REMIC to any tax under
the
REMIC Provisions or other applicable provisions of federal, state and local
law
or ordinances.
(k) None
of
the Trustee, the Trust Administrator, the Servicer or the Master Servicer shall
enter into any arrangement by which any Trust REMIC will receive a fee or other
compensation for services nor permit either REMIC to receive any income from
assets other than “qualified mortgages” as defined in Section 860G(a)(3) of
the Code or “permitted investments” as defined in Section 860G(a)(5) of the
Code.
SECTION
10.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the foreclosure of a Mortgage Loan, including
but
not limited to, the acquisition or sale of a Mortgaged Property acquired by
deed
in lieu of foreclosure, (ii) the bankruptcy of REMIC I, (iii) the termination
of
REMIC I pursuant to Article IX of this Agreement, (iv) a substitution pursuant
to Article II of this Agreement or (v) a purchase of Mortgage Loans pursuant
to
Article II or III of this Agreement), nor acquire any assets for any Trust
REMIC
(other than REO Property acquired in respect of a defaulted Mortgage Loan),
nor
sell or dispose of any investments in the Collection Account or the Distribution
Account for gain, nor accept any contributions to any Trust REMIC after the
Closing Date (other than a Qualified Substitute Mortgage Loan delivered in
accordance with Section 2.03), unless it has received an Opinion of
Counsel, addressed to the Trustee, the Trust Administrator and the NIMS Insurer
(at the expense of the party seeking to cause such sale, disposition,
substitution, acquisition or contribution but in no event at the expense of
the
Trustee or the Trust Administrator) that such sale, disposition, substitution,
acquisition or contribution will not (a) affect adversely the status of any
Trust REMIC as a REMIC or (b) cause any Trust REMIC to be subject to a tax
on
“prohibited transactions” or “contributions” pursuant to the REMIC
Provisions.
SECTION
10.03. Servicer,
Master Servicer and Trustee Indemnification.
(a) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status as
a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to (i)
the
negligent performance by the Trustee or the Trust Administrator of its duties
and obligations set forth herein or (ii) any state, local or franchise taxes
imposed upon the Trust Fund as a result of the location of the Trustee or the
Trust Administrator or any co-trustee, the Trustee or the Trust Administrator,
as applicable, shall indemnify the NIMS Insurer, the Servicer, the Master
Servicer and the Trust Fund against any and all Losses resulting from such
negligence, including, without limitation, any reasonable attorneys’ fees
imposed on or incurred as a result of a breach of the Trustee’s or the Trust
Administrator’s, as applicable, or any co-trustee’s covenants; provided,
however,
that
the Trustee or the Trust Administrator, as applicable, shall not be liable
for
any such Losses attributable to the action or inaction of the Servicer, the
Master Servicer, the Depositor or the Holder of such Residual Certificate,
as
applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Trustee or the Trust
Administrator, as applicable, has relied. The foregoing shall not be deemed
to
limit or restrict the rights and remedies of the Holder of such Residual
Certificate now or hereafter existing at law or in equity. Notwithstanding
the
foregoing, however, in no event shall the Trustee or the Trust Administrator,
as
applicable, have any liability (1) for any action or omission that is taken
in
accordance with and in compliance with the express terms of, or which is
expressly permitted by the terms of, this Agreement, (2) for any Losses other
than arising out of a negligent performance by the Trustee or the Trust
Administrator, as applicable, of its duties and obligations set forth herein,
and (3) for any special or consequential damages to Certificateholders (in
addition to payment of principal and interest on the Certificates).
(b) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status as
a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Master Servicer of its duties and obligations
set
forth herein, the Master Servicer shall indemnify the NIMS Insurer, the
Servicer, the Trustee, the Trust Administrator and the Trust Fund against any
and all losses, claims, damages, liabilities or expenses (“Losses”) resulting
from such negligence, including, without limitation, any reasonable attorneys’
fees imposed on or incurred as a result of a breach of the Master Servicer’s
covenants; provided,
however,
that
the Master Servicer shall not be liable for any such Losses attributable to
the
action or inaction of the Trustee, the Trust Administrator, the Servicer, the
Depositor or the Holder of such Residual Certificate, as applicable, nor for
any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Master Servicer has relied. The foregoing
shall not be deemed to limit or restrict the rights and remedies of the Holder
of such Residual Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Master Servicer
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Master Servicer of its duties and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (in addition to payment of principal and interest on
the
Certificates).
(c) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status as
a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to (i)
the
negligent performance by the Servicer of its duties and obligations set forth
herein or (ii) any state, local or franchise taxes imposed upon the Trust Fund
as a result of the location of the Servicer or any sub-servicer, the Servicer
shall indemnify the NIMS Insurer, the Master Servicer, the Trustee, the Trust
Administrator and the Trust Fund against any and all losses, claims, damages,
liabilities or expenses (“Losses”) resulting from such negligence, including,
without limitation, any reasonable attorneys’ fees imposed on or incurred as a
result of a breach of the Servicer’s or any sub-servicer’s covenants;
provided,
however,
that
the Servicer shall not be liable for any such Losses attributable to the action
or inaction of the Master Servicer, the Trustee, the Trust Administrator, the
Depositor or the Holder of such Residual Certificate, as applicable, nor for
any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Servicer has relied. The foregoing shall
not
be deemed to limit or restrict the rights and remedies of the Holder of such
Residual Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Servicer have
any
liability (1) for any action or omission that is taken in accordance with and
in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than arising out of a
negligent performance by the Servicer of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the
Certificates).
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
SECTION
11.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicer,
the
Master Servicer, the Trust Administrator and the Trustee with the consent of
the
NIMS Insurer and without the consent of any of the Certificateholders, (i)
to
cure any ambiguity or defect, (ii) to correct, modify or supplement any
provisions herein (including to give effect to the expectations of
Certificateholders), or (iii) to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement, provided that such action
shall not adversely affect in any material respect the interests of any
Certificateholder as evidenced by either (i) an Opinion of Counsel delivered
to
the Servicer, the Master Servicer, the Trustee, the Trust Administrator and
the
NIMS Insurer or (ii) confirmation from the Rating Agencies, delivered to the
Servicer, the Master Servicer, the Trustee, the Trust Administrator and the
NIMS
Insurer, that such amendment will not result in the reduction or withdrawal
of
the rating of any outstanding Class of Certificates. No amendment shall be
deemed to adversely affect in any material respect the interests of any
Certificateholder who shall have consented thereto, and no Opinion of Counsel
shall be required to address the effect of any such amendment on any such
consenting Certificateholder.
This
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Master Servicer, the Trust Administrator, the NIMS Insurer and the Trustee
with the consent of the NIMS Insurer and the Holders of Certificates entitled
to
at least 66% of the Voting Rights for the purpose of adding any provisions
to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Swap Provider or Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in
any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Swap Provider or Holders of any Class of
Certificates (as evidenced by either (i) an Opinion of Counsel delivered to
the
Trustee and the NIMS Insurer or (ii) confirmation from the Rating Agencies,
delivered to the Servicer, the Master Servicer, the Trustee and the NIMS
Insurer, that such action will not result in the reduction or withdrawal of
the
rating of any outstanding Class of Certificates) in a manner, other than as
described in (i), or (iii) modify the consents required by the immediately
preceding clauses (i) and (ii) without the consent of the Holders of all
Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor or
the Master Servicer or any Affiliate thereof shall be entitled to Voting Rights
with respect to matters affecting such Certificates.
Notwithstanding
any contrary provision of this Agreement, none of the Trustee, the Trust
Administrator or the NIMS Insurer shall consent to any amendment to this
Agreement unless it shall have first received an Opinion of Counsel satisfactory
to the NIMS Insurer to the effect that such amendment will not result in the
imposition of any tax on any Trust REMIC pursuant to the REMIC Provisions or
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
Notwithstanding
any of the other provisions of this Section 11.01, none of the Depositor, the
Servicer, the Master Servicer, the Trust Administrator or the Trustee shall
enter into any amendment to Section 9.01, Section 11.09 or Section 11.10 of
this
Agreement without the prior written consent of the Swap Provider.
Promptly
after the execution of any such amendment the Trust Administrator shall notify
each Certificateholder and make available to each Certificateholder and the
NIMS
Insurer a copy of such amendment.
It
shall
not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trust Administrator may prescribe.
The
cost
of any Opinion of Counsel to be delivered pursuant to this Section 11.01
shall be borne by the Person seeking the related amendment, but in no event
shall such Opinion of Counsel be an expense of the Trustee or the Trust
Administrator.
The
Trustee and the Trust Administrator may, but neither shall not be obligated
to
enter into any amendment pursuant to this Section that affects its rights,
duties and immunities under this Agreement or otherwise.
SECTION
11.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer at the expense
of
the Certificateholders, but only upon direction of the Trustee or the Trust
Administrator accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
SECTION
11.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No
Certificateholder shall have any right to vote (except as expressly provided
for
herein) or in any manner otherwise control the operation and management of
the
Trust, or the obligations of the parties hereto, nor shall anything herein
set
forth, or contained in the terms of any of the Certificates, be construed so
as
to constitute the Certificateholders from time to time as partners or members
of
an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee, for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatsoever by virtue of any provision of
this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit
of
all Certificateholders. For the protection and enforcement of the provisions
of
this Section, each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION
11.04. Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
SECTION
11.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when received if personally delivered at or
mailed by first class mail, postage prepaid, or by express delivery service
or
delivered in any other manner specified herein, to (a) in the case of the
Depositor, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Legal (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), or such other address or telecopy number
as may hereafter be furnished to the Servicer, the Master Servicer, the Trust
Administrator, the NIMS Insurer and the Trustee in writing by the Depositor,
(b)
in the case of the Servicer, Ocwen Loan Servicing, LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary
(telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇) or such other address or telecopy number
as
may hereafter be furnished to the Depositor, the Master Servicer, the Trust
Administrator and the Trustee in writing by the Servicer (c) in the case of
the
Master Servicer or the Trust Administrator, ▇▇▇▇▇ Fargo Bank, N.A., ▇.▇. ▇▇▇
▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services—MASTR 2006-AM1
(telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Client Manager - MASTR
2006-AM1 (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇ Fargo Bank,
N.A., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Client Manager—MASTR 2006-AM1, or such other address or telecopy
number as may hereafter be furnished to the Servicer, the Trustee, the NIMS
Insurer and the Depositor in writing by the Master Servicer, (c) in the case
of
the Trustee, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Structured Finance/MASTR 2006-AM1 (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇),
or such other address as may hereafter be furnished to the Depositor, the
Servicer, the NIMS Insurer, the Trust Administrator and the Master Servicer
in
writing by the Trustee, or such other address or telecopy number as may
hereafter be furnished to the Master Servicer, the NIMS Insurer and the
Depositor in writing by the Trustee and (d) in the case of the NIMS Insurer,
if
any, the address set forth in the Indenture, or such other address or telecopy
number as may hereafter be furnished to the Master Servicer, the Trust
Administrator, the Depositor and the Trustee in writing by the NIMS Insurer.
Any
notice required or permitted to be given to a Certificateholder shall be given
by first class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given when
mailed, whether or not the Certificateholder receives such notice. A copy of
any
notice required to be telecopied hereunder also shall be mailed to the
appropriate party in the manner set forth above.
SECTION
11.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
11.07. Notice
to
Rating Agencies and the NIMS Insurer.
The
Trust
Administrator shall use its best efforts promptly to provide notice to the
Rating Agencies and the NIMS Insurer with respect to each of the following
of
which it has actual knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Servicer Event of Default or Master Servicer Event of
Termination that has not been cured or waived;
3. The
resignation or termination of the Master Servicer, the Trust Administrator
or
the Trustee;
4. The
repurchase or substitution of Mortgage Loans pursuant to or as contemplated
by
Section 2.03;
5. The
final
payment to the Holders of any Class of Certificates;
6. Any
change in the location of the Collection Account or the Distribution
Account;
7. Any
event
that would result in the inability of the Master Servicer to make advances
regarding delinquent Mortgage Loans to the same extent the Servicer is required
to make such advances as provided in Section 4.03; and
8. The
filing of any claim under any Servicer’s blanket bond and errors and omissions
insurance policy required by Section 3.14 or the cancellation or material
modification of coverage under any such instrument.
In
addition, the Trust Administrator shall promptly make available to each Rating
Agency and the NIMS Insurer copies of each report to Certificateholders
described in Section 4.02 and the Master Servicer shall promptly furnish to
each Rating Agency copies of the following:
1. Each
annual statement as to compliance described in Section 3.20;
and
2. Each
annual independent public accountants’ servicing report described in
Section 3.21.
Any
such
notice pursuant to this Section 11.07 shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, or by express delivery service to ▇▇▇▇▇’▇ Investors
Service Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Standard &
Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other addresses as the Rating Agencies
may designate in writing to the parties hereto.
SECTION
11.08. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
11.09. Grant
of
Security Interest.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Depositor to the Trustee, be, and be construed as, a sale of the Mortgage
Loans by the Depositor and not a pledge of the Mortgage Loans to secure a debt
or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are
held to be property of the Depositor, then, (a) it is the express intent of
the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor
and (b)(1) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect
from
time to time in the State of New York; (2) the conveyance provided for in
Section 2.01 hereof shall be deemed to be a grant by the Depositor to the
Trustee of a security interest in all of the Depositor’s right, title and
interest in and to the Mortgage Loans and all amounts payable to the holders
of
the Mortgage Loans and the Swap Provider in accordance with the terms thereof
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property, including without
limitation all amounts, other than investment earnings, from time to time held
or invested in the Collection Account and the Distribution Account, whether
in
the form of cash, instruments, securities or other property; (3) the obligations
secured by such security agreement shall be deemed to be all of the Depositor’s
obligations under this Agreement, including the obligation to provide to the
Certificateholders and the Swap Provider the benefits of this Agreement relating
to the Mortgage Loans and the Trust Fund; and (4) notifications to persons
holding such property, and acknowledgments, receipts or confirmations from
persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. Accordingly, the Depositor hereby
grants to the Trustee a security interest in the Mortgage Loans and all other
property described in clause (2) of the preceding sentence, for the purpose
of
securing to the Trustee the performance by the Depositor of the obligations
described in clause (3) of the preceding sentence. Notwithstanding the
foregoing, the parties hereto intend the conveyance pursuant to
Section 2.01 to be a true, absolute and unconditional sale of the Mortgage
Loans and assets constituting the Trust Fund by the Depositor to the
Trustee.
SECTION
11.10. Third
Party Rights.
Each
of
the NIMS Insurer and the Swap Provider shall be deemed a third-party beneficiary
of this Agreement to the same extent as if it were a party hereto, and shall
have the right to enforce the provisions of this Agreement.
SECTION
11.11. Intention
of the Parties and Interpretation.
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections 3.20,
3.21 and 4.06 of this Agreement is to facilitate compliance by the Depositor
with the provisions of Regulation AB promulgated by the SEC under the Exchange
Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from time to time
and subject to clarification and interpretive advice as may be issued by the
staff of the Commission from time to time. Therefore, each of the parties hereto
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB, (c)
the
parties shall comply, to the extent practicable from a timing and information
systems perspective and to the extent that the Depositor will pay any increased
costs of the Trustee and Trust Administrator caused by such request, with
requests made by the Depositor for delivery of additional or different
information as the Depositor may determine in good faith is necessary to comply
with the provisions of Regulation AB, and (d) no amendment of this Agreement
shall be required to effect any such changes in the parties’ obligations as are
necessary to accommodate evolving interpretations of the provisions of
Regulation AB.
IN
WITNESS WHEREOF, the Depositor, the Master Servicer, the Servicer, the Trust
Administrator and the Trustee have caused their names to be signed hereto by
their respective officers thereunto duly authorized, in each case as of the
day
and year first above written.
|
MORTGAGE
ASSET SECURITIZATION
TRANSACTIONS,
INC.,
as
Depositor
|
|||||||||||||
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇
|
||||||||||||
|
Title:
|
Associate
Director
|
||||||||||||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|||||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|||||||
|
Title:
|
Associate
Director
|
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Master Servicer and Trust Administrator
|
|||||||||||||
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||||||||||||
|
Title:
|
Assistant
Vice President
|
||||||||||||
|
OCWEN
LOAN SERVICING, LLC,
as
Servicer
|
|||||||||||||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||||||||||||
|
Title:
|
Authorized
Representative
|
||||||||||||
|
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
|
|||||||||||||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
For
purposes of Sections 6.07, 6.08 and 6.09:
RISK
MANAGEMENT GROUP,
LLC
|
|||||||||||||
|
By:
|
/s/
▇▇▇▇▇▇▇
▇▇▇▇▇
|
||||||||||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
||||||||||||
|
Title:
|
President
|
||||||||||||
|
By:
|
/s/
▇▇▇▇
▇▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇▇
|
||
|
Title:
|
Managing
Member
|
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
___ day of February
2006,
before
me, a notary public in and for said State, personally appeared
________________________ and ________________________, known to me to be a(n)
________________________ and ________________________, respectively, of Mortgage
Asset Securitization Transactions, Inc., one of the corporations that executed
the within instrument, and also known to me to be the person who executed it
on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ day of February 2006, before me, a notary public in and for said State,
personally appeared ________________________ known to me to be a(n)
________________________ of Ocwen Loan Servicing, LLC, one of the corporations
that executed the within instrument, and also known to me to be the person
who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF MARYLAND
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF ▇▇▇▇▇▇
|
)
|
On
the
____ day of February 2006, before me, a notary public in and for said State,
personally appeared ________________________ known to me to be a(n)
________________________ of ▇▇▇▇▇ Fargo Bank, N.A., one of the corporations
that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF MINNESOTA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF ▇▇▇▇▇▇
|
)
|
On
the
____ day of February 2006, before me, a notary public in and for said State,
personally appeared ________________________, known to me to be a(n)
________________________ of U.S. Bank National Association, one of the
corporations that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
EXHIBIT
A-1
FORM
OF
CLASS A-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-1 Certificates as of
the
Issue Date: $190,635,000 Denomination:
$190,635,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L PZ 3
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-1 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-1 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-1
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class A-1 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
A-1 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and none of the Depositor, the Master
Servicer, the Trustee, the Trust Administrator nor any such agent shall be
affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-2
FORM
OF
CLASS A-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-2 Certificates as of
the
Issue Date: $48,878,000 Denomination:
$48,878,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QA 7
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-2 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-2 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-2
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class A-2 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
A-2 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trustee and the Trust Administrator with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-3
FORM
OF
CLASS A-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-3 Certificates as of
the
Issue Date: $62,409,000 Denomination:
$62,409,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QB 5
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-3 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-3 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-3
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class A-3 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
A
Certificates, or otherwise by check mailed by first class mail to the address
of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the Trust Administrator of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-4
FORM
OF
CLASS A-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-4 Certificates as of
the
Issue Date: $20,810,000 Denomination:
$20,810,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QC 3
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-4 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-4 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-4
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class A-4 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
A-4 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ____, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-5
FORM
OF
CLASS M-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-1 Certificates as of
the
Issue Date: $15,469,000 Denomination:
$15,469,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QD 1
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-1 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-1 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-1
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-1 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-1 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-6
FORM
OF
CLASS M-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND THE CLASS M-1
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1, 2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-2 Certificates as of
the
Issue Date: $14,621,000 Denomination:
$14,621,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QE 9
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-2 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-2 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-2
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-2 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-2 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator and the Trustee and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-7
FORM
OF
CLASS M-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
A-7-
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-3 Certificates as of
the
Issue Date: $9,111,000 Denomination:
$9,111,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QF 6
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-3 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-3 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-3
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-3 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-3 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-8
FORM
OF
CLASS M-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-4 Certificates as of
the
Issue Date: $7,628,000 Denomination:
$7,628,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QG 4
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-4 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-4 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-4
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-4 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-4 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-9
FORM
OF
CLASS M-5 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 AND THE CLASS M-4
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-5 Certificates as of
the
Issue Date: $7,628,000 Denomination:
$7,628,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QN 9
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-5 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-5 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-5
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-5 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-5 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-10
FORM
OF
CLASS M-6 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-6 Certificates as of
the
Issue Date: $6,569,000 Denomination:
$6,569,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QP 4
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-6 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-6 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-6
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-6 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-6 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February __, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-11
FORM
OF
CLASS M-7 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6 CERTIFICATES
TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-7 Certificates as of
the
Issue Date: $6,145,000 Denomination:
$6,145,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QQ 2
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-7 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-7 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-7
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-7 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-7 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-12
FORM
OF
CLASS M-8 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES AND
THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-8 Certificates as of
the
Issue Date: $5,509,000 Denomination:
$5,509,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QH 2
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-8 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-8 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-8
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-8 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-8 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-13
FORM
OF
CLASS M-9 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE
CLASS M-7 CERTIFICATES AND THE CLASS M-8 CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-9 Certificates as of
the
Issue Date: $4,238,000 Denomination:
$4,238,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QJ 8
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-9 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-9 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-9
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-9 Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
M-9 Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-14
FORM
OF
CLASS M-10 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT
CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE “CODE”).
CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES AND THE CLASS M-9
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02(c) OF THE AGREEMENT.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-10 Certificates as of
the
Issue Date: $4,450,000 Denomination:
$4,450,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QK 5
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-10 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-10 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-10
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-10 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal
Balance of the Class M-10 Certificates, or otherwise by check mailed by first
class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
The
holder of this certificate shall be deemed to have made the representations
set
forth in Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-15
FORM
OF
CLASS M-11 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR 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 ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IN REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS M-9 AND THE CLASS
M-10 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-11 Certificates as of
the
Issue Date: $3,814,000 Denomination:
$3,814,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QL 3
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-11 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-11 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-11
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-11 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal
Balance of the Class M-11 Certificates, or otherwise by check mailed by first
class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of written certifications from the Holder
of
the Certificate desiring to effect the transfer, and from such Holder’s
prospective transferee, substantially in the forms attached to the Agreement
as
Exhibit F-1.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-16
FORM
OF
CLASS M-12 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR 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 ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IN REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS M-9, THE CLASS
M-10 CERTIFICATES AND THE CLASS M-11 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
|
Series:
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-12 Certificates as of
the
Issue Date: $3,814,000 Denomination:
$3,814,000
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
CUSIP:
57643L QM 1
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-12 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
M-12 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master Servicer,
the Trust Administrator and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-12
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class M-12 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate Principal
Balance of the Class M-12 Certificates, or otherwise by check mailed by first
class mail to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator, the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of written certifications from the Holder
of
the Certificate desiring to effect the transfer, and from such Holder’s
prospective transferee, substantially in the forms attached to the Agreement
as
Exhibit F-1.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-17
FORM
OF
CLASS CE CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
|
Series
2006-AM1
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
Aggregate
Notional Amount of the Class
CE
Certificates as of the Issue Date: $423,811,710.41
Notional
Amount: $423,811,710.41
|
Aggregate
Certificate Principal Balance of the Class CE Certificates as of
the
Issue Date: $12,083,710.41 Denomination:
$12,083,710.41
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
|
THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that ▇▇▇▇▇ Fargo Bank, N.A., as Indenture Trustee under the Indenture,
dated as of February 27, 2006, relating to MASTR ABS NIM Trust 2006-AM1 Notes,
Series 2006-AM1 is the registered owner of a Percentage Interest (obtained
by
dividing the denomination of this Certificate by the aggregate Certificate
Principal Balance of the Class CE Certificates as of the Issue Date) in that
certain beneficial ownership interest evidenced by all the Class CE Certificates
in REMIC IV created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the “Agreement”), among Mortgage Asset Securitization
Transactions, Inc. (hereinafter called the “Depositor,” which term includes any
successor entity under the Agreement), the Master Servicer, the Trust
Administrator and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class CE
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class CE Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
CE Certificates, or otherwise by check mailed by first class mail to the address
of the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the Trust Administrator of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder’s prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee, the Trust Administrator or the Master
Servicer in their respective capacities as such), together with copies of the
written certification(s) of the Holder of the Certificate desiring to effect
the
transfer and/or such Holder’s prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on
the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Depositor, the Trust Administrator 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 this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-18
FORM
OF
CLASS P CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
|
Series:
2006-AM1
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class P Certificates as of the
Issue Date: $100.00 Denomination:
$100.00
Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that ▇▇▇▇▇ Fargo Bank, N.A., as Indenture Trustee under the Indenture,
dated as of February 27, 2006, relating to MASTR ABS NIM Trust 2006-AM1 Notes,
Series 2006-AM1 is the registered owner of a Percentage Interest (obtained
by
dividing the denomination of this Certificate by the aggregate Certificate
Principal Balance of the Class P Certificates as of the Issue Date) in that
certain beneficial ownership interest evidenced by all the Class P Certificates
in REMIC V created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the “Agreement”), among Mortgage Asset Securitization
Transactions, Inc. (hereinafter called the “Depositor,” which term includes any
successor entity under the Agreement), the Master Servicer, the Trust
Administrator and the Trustee, a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class P Certificates
on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class P Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
P
Certificates, or otherwise by check mailed by first class mail to the address
of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the Trust Administrator of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Trust Administrator and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder’s prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee, the Trust Administrator or the Master
Servicer in their respective capacities as such), together with copies of the
written certification(s) of the Holder of the Certificate desiring to effect
the
transfer and/or such Holder’s prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Trust Administrator or the Trustee
is obligated to register or qualify the Class of Certificates specified on
the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Depositor, the Trust Administrator 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 this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assume no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as Trust
Administrator for the MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-19
FORM
OF
CLASS R CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUST ADMINISTRATOR
THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION THEREOF,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER
BE REFERRED TO AS A “DISQUALIFIED ORGANIZATION”) OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE
THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL
NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER
OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO
THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(d) OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A
DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF
THIS CERTIFICATE.
|
Series:
2006-AM1
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.1
|
Aggregate
Percentage Interest of the Class R Certificates as of the
Issue Date: 100.00% Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
|
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (as specified above) in that certain beneficial ownership interest
evidenced by all the Certificates of the Class to which this Certificate belongs
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the “Agreement”), among Mortgage Asset Securitization Transactions, Inc.
(hereinafter called the “Depositor,” which term includes any successor entity
under the Agreement), the Master Servicer, the Trust Administrator and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class R Certificates
on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class R Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
R
Certificates, or otherwise by check mailed by first class mail to the address
of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the Trust Administrator of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator and the Trustee and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder’s prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee, the Trust Administrator or the Master
Servicer in their respective capacities as such), together with copies of the
written certification(s) of the Holder of the Certificate desiring to effect
the
transfer and/or such Holder’s prospective transferee upon which such Opinion of
Counsel is based. Neither the Depositor, the Trust Administrator nor the Trustee
is obligated to register or qualify the Class of Certificates specified on
the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Depositor, the Trust Administrator 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 this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trust Administrator (i) an affidavit
to
the effect that such transferee is any Person other than a Disqualified
Organization or the agent (including a broker, nominee or middleman) of a
Disqualified Organization, and (ii) a certificate that acknowledges that (A)
the
Class R Certificates have been designated as a residual interest in a REMIC,
(B)
it will include in its income a pro
rata share
of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Person shall not
be
deemed to be a Certificateholder for any purpose, including, but not limited
to,
the receipt of distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to have
consented to the provisions of Section 5.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the Trust Fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trustee, the Trust Administrator nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
A-20
FORM
OF
CLASS R-X CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUST ADMINISTRATOR
THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION THEREOF,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER
BE REFERRED TO AS A “DISQUALIFIED ORGANIZATION”) OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE
THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF
ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL
NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER
OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO
THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(D) OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A
DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF
THIS CERTIFICATE.
|
Series:
2006-AM1
Cut-off
Date and date of Pooling and Servicing Agreement: February 1,
2006
First
Distribution Date: March 27, 2006
No.1
|
Aggregate
Percentage Interest of the Class R-X Certificates as of the Issue
Date: 100.00% Master
Servicer and Trust Administrator: ▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: February 27, 2006
|
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a trust fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family, fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUSTEE, THE TRUST
ADMINISTRATOR OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (as specified above) in that certain beneficial ownership interest
evidenced by all the Certificates of the Class to which this Certificate belongs
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the “Agreement”), among Mortgage Asset Securitization Transactions, Inc.
(hereinafter called the “Depositor,” which term includes any successor entity
under the Agreement), the Master Servicer, the Trust Administrator and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class R-X
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trust Administrator by wire transfer in immediately
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date and
is
the registered owner of Class R-X Certificates the aggregate initial Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000 or
(ii)
two-thirds of the aggregate initial Certificate Principal Balance of the Class
R-X Certificates, or otherwise by check mailed by first class mail to the
address of the Person entitled thereto, as such name and address shall appear
on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator of
the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency appointed by the Trust Administrator for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Mortgage Pass-Through Certificates of the Series specified on the face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trust Administrator and the Trustee and the rights of
the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Trust Administrator and the Trustee with the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trust Administrator as provided in the Agreement,
duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest
will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder’s prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trust Administrator, the Trustee or the Master
Servicer in their respective capacities as such), together with copies of the
written certification(s) of the Holder of the Certificate desiring to effect
the
transfer and/or such Holder’s prospective transferee upon which such Opinion of
Counsel is based. Neither the Depositor, the Trust Administrator nor the Trustee
is obligated to register or qualify the Class of Certificates specified on
the
face hereof under the 1933 Act or any other securities law or to take any action
not otherwise required under the Agreement to permit the transfer of such
Certificates without registration or qualification. Any Holder desiring to
effect a transfer of this Certificate shall be required to indemnify the
Trustee, the Depositor, the Trust Administrator 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 this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trust Administrator may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trust Administrator (i) an affidavit
to
the effect that such transferee is any Person other than a Disqualified
Organization or the agent (including a broker, nominee or middleman) of a
Disqualified Organization, and (ii) a certificate that acknowledges that (A)
the
Class R-X Certificates have been designated as a residual interest in a REMIC,
(B) it will include in its income a pro
rata share
of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R-X Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Person shall not
be
deemed to be a Certificateholder for any purpose, including, but not limited
to,
the receipt of distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to have
consented to the provisions of Section 5.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the trust fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Master Servicer, the Trustee, the Trust Administrator and any
agent of the Depositor, the Master Servicer, the Trust Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as
the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Trust Administrator, the Trustee nor any such agent shall be affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trust Administrator and required to be paid to them pursuant to the Agreement
following the earlier of (i) the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of
all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan at a price determined as provided
in
the Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Loans and REO Properties remaining in the
Trust Fund at the time of purchase being less than or equal to 10% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the Trust
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate to be
duly
executed.
Dated:
February ___, 2006
▇▇▇▇▇
FARGO BANK, N.A., not in its individual
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
capacity, but solely as Trust Administrator for the
MASTR Asset Backed Securities Trust 2006-AM1
By:______________________________
Authorized
Officer
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇
FARGO BANK, N.A.
as
Trust
Administrator
By:______________________________
Authorized
Signatory
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN
COM -
as tenants in common UNIF
GIFT
MIN ACT - Custodian
TEN
ENT -
as tenants by the entireties (Cust)
(Minor) under Uniform Gifts to Minors
JT
TEN -
as joint tenants with right
if
survivorship and not as
_______________
tenants
in common (State)
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
____________________________________________________________________________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Mortgage Pass-Through Certificates and hereby authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund. I (we) further direct the Trust Administrator to issue a new Certificate of a like Percentage Interest and Class to the above named assignee and deliver such Certificate to the following address: ______________________________________________________________________________________________________
___________________________________________________________________________________________.
Dated:
________________________
______________________________
Signature
by or on behalf of assignor
______________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_______________________________________________________________
_______________________________________________________________ for the account
of ______________________________________________, account number
______________________________, or, if mailed by check,
to_________________________________________________________________________________________
___________________________________________________________________________________________________________.
Applicable statements should be mailed
to____________________________________________
_____________________________________________________________________________.This
information is provided by ___________________________________________, the
assignee named above, or ________________________________________, as its
agent.
EXHIBIT
B
FORM
OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EXHIBIT
C-1
FORM
OF
CUSTODIAN’S INITIAL CERTIFICATION
See
Exhibit 1 to the Custodial Agreement
EXHIBIT
C-2
FORM
OF
CUSTODIAN’S FINAL CERTIFICATION
See
Exhibit 2 to the Custodial Agreement
EXHIBIT
D
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
This
Assignment, Assumption and Recognition Agreement (the “Agreement”) dated as of
February 17, 2006 (the “Effective Date”), is by and among Ocwen Mortgage Asset
Trust I (“Assignor”), Mortgage Asset Securitization Transactions, Inc.,
(“Assignee”) and Aames Capital Corp. (the “Seller”).
For
and
in consideration of the sum of one dollar ($1.00) and other valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. With
respect to the mortgage loans listed on Exhibit
A
hereto
(the “Mortgage Loans”), the Assignor hereby sells, grants, transfers and assigns
to Assignee all of the right, title and interest of Assignor, as Purchaser,
in,
to and under that certain Master Bulk Sale and Interim Servicing Agreement,
dated as of November 1, 2005, by and among the Assignor, the Seller and
▇▇▇▇▇▇▇▇▇ Management Group, LLC, as amended by the Amendment to the Master
Bulk
Sale and Servicing Agreement, dated as of February 1, 2006 (as amended, the
“Master Bulk Sale and Interim Servicing Agreement”), and the Memorandum of Sale
dated November 17, 2005 and the Memorandum of Sale dated January 11, 2006
(together with the Master Bulk Sale and Interim Servicing Agreement, the “Master
Sale Agreement”) thereto, each executed by the Seller, and the Mortgage Loans
delivered thereunder by the Seller to the Assignor; provided however, that
(i)
the Assignor does not assign any of its rights pursuant to Section 3.05 of
the
Master Bulk Sale and Interim Servicing Agreement, (ii) the Assignor specifically
reserves and does not assign to the Assignee any right, title and interest
in
and to any mortgage loans subject to the Master Sale Agreement other than the
Mortgage Loans that are subject to this Agreement, (iii) in the event the
Assignor repurchases any Mortgage Loan or performs any other obligation
hereunder that is also the obligation of the Seller under the Master Sale
Agreement, the Assignor shall be deemed to have retained its right to enforce
such obligation of the Seller to the extent that it has performed such
obligation and (iv) the Assignor retains its rights to indemnification under
Section 3.03 and Section 7.01 of the Master Bulk Sale and Interim Servicing
Agreement. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Master Sale Agreement or if not defined therein, in
the
Pooling and Servicing Agreement defined below.
The
parties hereto acknowledge that simultaneously with the execution of this
Agreement, the Assignee is
securitizing the Mortgage Loans into a securitization pursuant
to a pooling and servicing agreement (the “Pooling and Servicing Agreement”)
dated as of February 1, 2006, among the Assignee, Ocwen Loan Servicing, LLC
(the
“Servicer”), ▇▇▇▇▇ Fargo Bank, N.A. (the “Master Servicer” and the “Trust
Administrator”) and U.S. Bank National Association (the “Trustee”). Upon
execution of the Pooling and Servicing Agreement, the Trustee, on behalf of
the
certificateholders, shall be the Purchaser (as such term is defined in the
Master Sale Agreement) of the Mortgage Loans.
2. In
consideration for the Mortgage Loans assigned hereunder, the Assignee shall,
on
the date hereof, deliver to or upon the order of the Assignor or its designee
(i) an amount, in immediately available funds, equal to the net proceeds of
the
sale of the Class A and the Mezzanine Certificates and (ii) the Class CE
Certificates and Class P Certificates.
3. The
Assignor has delivered or caused to be delivered to the Custodian or any
assignee, transferee or designee of the Assignee each of the documents for
each
Mortgage Loan as described in Section 2.01 of the Pooling and Servicing
Agreement.
4. The
Assignor warrants and represents to, and covenants with, the Assignee that
as of
the date hereof:
a. To
the
best of the Assignor’s knowledge, nothing has occurred in the period of time
from the related Closing Date (as defined in the Master Sale Agreement) to
the
date hereof which would cause such representations and warranties referred
to in
Exhibit B herein to be untrue in any material respects as of the date
hereof.
b. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
c. The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to the
Master Sale Agreement or the Mortgage Loans;
d. The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Master Sale Agreement or the Mortgage
Loans. The Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments of rights
or obligations under, the Master Sale Agreement or the Mortgage Loans;
and
e. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans 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 which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the “Securities Act”) or which would
render the disposition of the Mortgage Loans a violation of Section 5 of the
Securities Act or require registration pursuant thereto.
5.
The
Assignor hereby acknowledges and agrees that the remedies available to the
Assignee and the Trust in connection with any breach of the representations
and
warranties made by the Assignor set forth in Section 4 hereof shall be as set
forth in Section 2.03 of the Pooling and Servicing Agreement as if they were
set
forth herein.
6. The
Assignee warrants and represent to, and covenants with, the Assignor and the
Seller pursuant to Section 9.07 of the Master Sale Agreement that:
a. The
Assignee understands that the Mortgage Loans have not been registered under
the
Securities Act or the securities laws of any state;
b. The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person. In this connection, neither the Assignee nor
any
person authorized to act therefor has offered to sell the Mortgage Loans by
means of any general advertising or general solicitation within the meaning
of
Rule 502(c) Regulation D promulgated under the Securities Act;
c. The
Assignee considers itself a substantial sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
d. The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Seller;
e. Neither
the Assignee nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or
accepted a transfer, pledge or other disposition of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any interest in
the
Mortgage Loans or any other similar security with, any person in any manner
which would constitute a distribution of the Mortgage Loans under the Securities
Act or which would render the disposition of the Mortgage Loans a violation
of
Section 5 of the Securities Act or require registration pursuant thereto, nor
will it act, nor has it authorized or will it authorize any person to act,
in
such manner with respect to the Mortgage Loans; and
f. Either
(1) the Assignee is not an employee benefit plan (“Plan”) within the meaning of
section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) or a plan (“Plan”) within the meaning of section 4975(e)(1) of the
Internal Revenue Code of 1986 (“Code”), and the Assignee is not directly or
indirectly purchasing the Mortgage Loans on behalf of, investment manager of,
as
named fiduciary of, as trustee of, or with assets of, a Plan; or (2) the
Assignee’s purchase of the Mortgage Loans will not result in a prohibited
transaction under section 406 of ERISA or section 4975 of the Code.
g. The
Trust
Administrator’s address for purposes of all notices and correspondence related
to the Mortgage Loans and the Master Sale Agreement is:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Client Manager MABS 2006-AM1
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
7. Accuracy
of the Agreements.
The
Seller and the Assignor represent and warrant to the Assignee that (i) attached
hereto as Exhibit
B
are
true, accurate and complete copies of the Master Sale Agreement and all
amendments and modifications, if any, thereto and (ii) the Master Sale Agreement
has not been amended or modified in any respect, except as set forth in this
Agreement.
8. Recognition
of Trustee.
From
and
after the date hereof, the Seller shall note the transfer of the Mortgage Loans
to the Trustee on behalf of certificateholders in its books and records and
the
Seller shall recognize the Trustee as the owner of the Mortgage Loans. It is
the
intention of the Assignor, the Seller and the Assignee that the Master Sale
Agreement shall be binding upon and inure to the benefit of the Seller and
the
Trustee and their respective successors and assigns.
9. Regulation
AB and Indemnification
(a) The
Assignor hereby represents and warrants to the Assignee as of the date hereof
and shall be deemed to represent to the Assignee as of the date of the Free
Writing Prospectus, as of the date of the Prospectus Supplement and as of each
date on which a Form 10-D, Form 10-K or Form 8-K is filed on behalf of the
Trust
Fund that, except as disclosed in writing to the Assignee and the Trust
Administrator prior to such date: (i) there are no material legal or
governmental proceedings pending (or known to be contemplated) against it that
are material to Certificateholders; and (ii) there are no affiliations relating
to the Assignor with respect to the Assignee or any Transaction Party, any
relationships or transactions of a type described in Item 1119(b) of Regulation
AB relating to the Assignor and any Transaction Party or any specific
relationships involving the transaction contemplated by the Pooling and
Servicing Agreement or the Mortgage Loans between the Assignor and any
Transaction Party. “Transaction Party” means any
of the
following and their affiliates: MASTR Asset Backed Securities Trust 2006-AM1
(“Issuing Entity”), the Depositor, the Master Servicer, the Servicer, the
Trustee, the Trust Administrator, Bear ▇▇▇▇▇▇▇ Financial Products Inc., the
Custodian or other material party related to the Certificates or the Mortgage
Loans.
(b) If
so
requested by the Assignee or the Trust Administrator on any date following
the
Closing Date for the purpose of satisfying the Assignees’s reporting obligation
under the Exchange Act with respect to any class of Certificates, the Assignor
shall, within five Business Days following such request, confirm in writing
the
accuracy of the representations and warranties set forth in paragraph (a) of
this section 9 or, if any such representation and warranty is not accurate
as of
the date of such confirmation, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party. Any such request from
the
Assignee or the Trust Administrator shall not be given more than once each
calendar quarter, unless the Assignee or the Trust Administrator shall have
a
reasonable basis for a determination that any of the representations and
warranties may not be accurate.
(c) For
so
long as the Certificates are outstanding, for the purpose of satisfying the
Assignees’s reporting obligation under the Exchange Act with respect to any
class of Certificates prior to suspension of such reporting obligations, the
Assignor shall (a) notify the Assignee and the Trust Administrator in writing
of
any material litigation or governmental proceedings pending against the Assignor
that would be material to Certificateholders, and provide to the Assignor and
the Trust Administrator a written description of such proceedings, (b) notify
the Assignee and the Trust Administrator of any affiliations relating to the
Assignor with respect to the Assignee or any Transaction Party, any
relationships or transaction any relationships or transactions of a type
described in Item 1119(b) of Regulation AB relating to the Assignor and any
Transaction Party or any specific relationships involving the transaction
contemplated by the Pooling and Servicing Agreement or the Mortgage Loans
between the Assignor and any Transaction Party and (c) for the purpose of
satisfying the Assignees’s reporting obligation under the Exchange Act with
respect to any class of Certificates prior to suspension of such reporting
obligations, promptly notify the Depositor,
the Master Servicer, the Servicer, the Trustee, the Trust Administrator, Bear
▇▇▇▇▇▇▇ Financial Products Inc. and the Custodian of any party that is the
successor of any of the foregoing parties or otherwise becomes material to
the
Certificates or the Mortgage Loans.
Any
notices and descriptions required under this Section 9(c) shall be given no
later than five calendar days following the Distribution Date in the month
in
which the Assignor has knowledge of the occurrence of the relevant event. As
of
the date the Assignee or Trust Administrator files each Report on Form 10-D
or
Form 10-K with respect to the Certificates, the Assignor will be deemed to
represent that any information previously provided under this Section 9(c),
if
any, is materially correct and does not have any material omissions unless
the
Assignor has provided an update to such information.
(d) Ocwen
Financial Corporation ("Ocwen Financial") agrees with the Assignee,
for the
sole and exclusive benefit of the Assignee and any assignee, transferee or
designee of the Assignee, to indemnify and hold harmless the Assignee, the
Trust
Administrator and the Trustee and each person who controls the Assignee, the
Trust Administrator and the Trustee against (i) any failure by the Assignor
to
perform any of its obligations under this Agreement or (ii) any untrue statement
of a material fact contained or alleged to be contained in any information
or
other material provided under this Section 9 by or on behalf of the Assignor
(the “Assignor Information”), or the omission or alleged omission to state in
the Assignor Information a material fact required to be stated in the Assignor
Information or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. Ocwen Financial
agrees that there are no conditions precedent to the obligations of Ocwen
Financial hereunder other than written demand to the Assignor to perform its
obligations under this Agreement. This
indemnification shall survive the termination of this Agreement.
10.
It is
the express intent of the parties hereto that the conveyance of the Mortgage
Loans by the Assignor to the Assignee as provided in Section 2 hereof be
construed as a sale of the Mortgage Loans by the Assignor to the Assignee and
not as a pledge of the Mortgage Loans by the Assignor to the Assignee to secure
a debt or other obligation of the Assignor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are
held to be property of the Assignor, then (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Assignor to the Assignee to secure a debt or other obligation of the Assignor
and (b) (1) this Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code;
(2) the conveyance provided for in Section 2 hereof shall be deemed to be a
grant by the Assignor to the Assignee of a security interest in all of the
Assignor's right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary,
of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account whether in the form of cash,
instruments, securities or other property; (3) the possession by the Assignee
or
its agent of Mortgage Notes, the related Mortgages and such other items of
property that constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be “possession” by the secured party for purposes of
perfecting the security interest pursuant to the New York Uniform Commercial
Code; and (4) notifications to persons holding such property and
acknowledgments, receipts or confirmations from persons holding such property
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Assignee for the purpose of perfecting such security interest under applicable
law. Any assignment of the interest of the Assignee pursuant to Section 2 hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Assignor and the Assignee shall, to the extent consistent with
this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans,
such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the
term
of this Agreement and the Pooling and Servicing Agreement.
[Signatures
Follow]
IN
WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition Agreement be executed by their duly authorized officers as of the
date first above written.
OCWEN
MORTGAGE ASSET TRUST I
By:
Delaware Trust Company, National Association,
not in its individual capacity but solely as Owner Trustee
not in its individual capacity but solely as Owner Trustee
By:_________________________________
Name:
Title:
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
Assignee
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
AAMES
CAPITAL CORP.
Seller
By:_________________________________
Name:
Title:
Acknowledged
and agreed
▇▇▇▇▇
FARGO BANK, N.A.,
in
its
capacity as Trust Administrator
By:________________________
Name:
Title:
For
purposes of Section 9:
OCWEN
FINANCIAL CORPORATION
By: ________________________________
Name:
Title:
Exhibit
A
Mortgage
Loans
Exhibit
B
AMENDMENT
TO THE MASTER BULK SALE AND SERVICING AGREEMENT
THIS
AMENDMENT TO
THAT
CERTAIN MASTER BULK SALE AND INTERIM SERVICING AGREEEMNT (the
“Amendment”) dated as of February 1, 2006, by and between Ocwen
Mortgage Asset Trust I (the “Purchaser”) and Aames Capital Corp. (the
“Seller”).
WHEREAS,
the Purchaser and the Seller have entered into that certain Master Bulk Sale
and
Interim Servicing Agreement, dated as of November 1, 2005 (the “Agreement”)
which prescribes the manner of purchase, conveyance, servicing and control
of
certain Mortgage Loans purchased by the Purchaser from the Seller from time
to
time;
WHEREAS,
the Purchaser and the Seller wish to amend provisions of the Agreement as
provided herein; and
WHEREAS,
capitalized terms not otherwise defined herein shall have the meanings set
forth
in the Agreement.
NOW
THEREFORE, in consideration of the mutual premises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Purchaser and the Seller agree as follows:
1. The
definition of “Repurchase Price” in Article I of the Agreement shall be amended
by inserting at the beginning of each clause (iii) the following:
“any
unreimbursed servicing advances made by a Successor Servicer, plus”
2. Section
3.03 of the Agreement is amended by inserting the following language as the
last
paragraph therein:
“Notwithstanding
any provision in this Agreement to the contrary, upon receipt of notice by
the
Seller of the breach of the representation and warranty set forth in Section
1(yy) of Exhibit I which adversely affects the interests of the Purchaser or
any
holder of any right or security representing the right to receive the Prepayment
Premium, the Seller shall remedy such breach as follows: if the representation
and warranty made by the Seller in Section 1(yy) of Exhibit I is breached and
a
Principal Prepayment has occurred in the applicable prepayment period, the
Seller must pay the amount of the scheduled Prepayment Premium, in accordance
with instructions provided by the Purchaser or its assigns, net of any benefit
to the holder of any right or security representing the right to receive the
Prepayment Premium, in respect of such Prepayment Premium.”
3. Except
as
modified by this Amendment, all terms, conditions, representations and
warranties of the Agreement or related agreements shall remain in full force
and
effect. If any term or condition of this Amendment is in conflict with any
term
or condition of the Agreement, the terms of this Amendment shall
control.
4. This
Amendment may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
5. This
Amendment shall be construed in accordance with the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
6. This
Amendment shall inure to the benefit of and be binding upon the Purchaser and
the Seller under the Agreement, and their respective successors and permitted
assigns.
[Signatures
Follow]
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to be
signed to this Amendment by their respective officers, duly authorized as of
the
day and year first above written.
OCWEN
MORTGAGE ASSET TRUST I
|
By:
|
Ocwen
Financial Corporation, as
Administrator
|
By:______________________________
Name:____________________________
Title:_____________________________
AAMES
CAPITAL CORP.
By:______________________________
Name:____________________________
Title:_____________________________
OCWEN
MORTGAGE ASSET TRUST I
Purchaser
▇▇▇▇▇▇▇▇▇
MANAGEMENT GROUP, LLC
Fund
Advisor
and
AAMES
CAPITAL CORP.
Seller
MASTER
BULK SALE AND INTERIM SERVICING AGREEMENT
Dated
as of November 1, 2005
Adjustable
and Fixed-Rate Mortgage Loans
EXECUTION
VERSION
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
ARTICLE
II AGREEMENT TO PURCHASE; CONVEYANCE OF MORTGAGE LOANS; PURCHASE PRICE;
POSSESSION OF MORTGAGE FILES; MAINTENANCE OF SERVICING FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS; CLOSING CONDITIONS
Section
2.01.Agreement
to Purchase; Conveyance of Mortgage Loans; Purchase Price; Possession of
Mortgage Files; Maintenance of Servicing Files.
Section
2.02.Books
and
Records; Transfers of Mortgage Loans.
Section
2.03.Custodial
Agreement; Delivery of Documents.
Section
2.04.Quality
Control Procedures.
Section
2.05.Closing
Conditions.
Section
2.06.Costs.
ARTICLE
III REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section
3.01.Seller
Representations, Warranties and Covenants Regarding the Seller.
Section
3.02.Representations,
Warranties and Covenants Regarding Individual Mortgage Loans.
Section
3.03.Repurchase
and other Remedies.
Section
3.04.Payment
Default; Exercise of Rescission Right.
Section
3.05.Premium
Recapture.
Section
▇.▇▇.▇▇▇▇▇▇
of
Mortgage Loans.
ARTICLE
IV ADMINISTRATION AND SERVICING OF MORTGAGE LOANS DURING THE INTERIM SERVICING
PERIOD
Section
4.01.Seller
to
Act as Servicer.
Section
4.02.Collection
of Mortgage Loan Payments.
Section
4.03.Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
Section
4.04.Gramm
▇▇▇▇▇ ▇▇▇▇▇▇ Act.
Section
4.05.Disaster
Recovery/Business Continuity Plan.
ARTICLE
V
TRANSFER OF SERVICING
Section
5.01.Assumption
of Responsibilities at Transfer Date.
ARTICLE
VI SELLER TO COOPERATE
Section
6.01.Provision
of Information.
Section
▇.▇▇.▇▇▇▇▇▇▇▇▇
Statements.
Section
6.03.Reports
of Litigation.
ARTICLE
VII THE SELLER
Section
7.01.Indemnification;
Third Party Claims.
Section
7.02.Merger
or
Consolidation of the Seller.
Section
7.03.Limitation
on Liability of Seller and Others.
Section
7.04.Limitation
on Resignation and Assignment by Seller.
ARTICLE
VIII RECONSTITUTION OF MORTGAGE LOANS AND COMPLIANCE WITH REGULATION
AB
ARTICLE
IX MISCELLANEOUS PROVISIONS
Section
9.01.Amendment.
Section
9.02.Governing
Law.
Section
9.03.Arbitration.
Section
9.04.Notices.
Section
9.05.Severability
of Provisions.
Section
9.06.Relationship
of Parties.
Section
9.07.Successors
and Assigns; Assignment of Agreement.
Section
9.08.Solicitation
of Mortgagor.
Section
9.09.Further
Agreements.
Section
9.10.Confidential
Information.
Section
9.11.Information
Security and Privacy.
Section
9.12.Equal
Opportunity.
Section
9.13.Counterparts.
Section
9.14.Exhibits.
Section
9.15.General
Interpretive Principles.
Section
9.16.Reproduction
of Documents.
Section
▇.▇▇.▇▇▇▇▇
Confirmation.
EXHIBITS
|
Exhibit
A
|
Contents
of Each Mortgage File
|
|
Exhibit
B
|
Mortgage
Loan Schedule
|
|
Exhibit
C
|
Form
of Trade Confirmation
|
|
Exhibit
D
|
Form
of Memorandum of Sale
|
|
Exhibit
E
|
Form
of Assignment, Assumption and Recognition Agreement
|
|
Exhibit
F
|
Underwriting
Guidelines
|
|
Exhibit
G
|
Form
of Opinion of Counsel
|
|
Exhibit
H
|
Representations,
Warranties and Covenants Regarding the Seller
|
|
Exhibit
I
|
Representations,
Warranties and Covenants Regarding Individual Mortgage
Loans
|
|
Exhibit
J
|
Reconstitutions
of Mortgage Loans and Compliance with Regulation AB
|
|
Exhibit
K
|
Servicing
Transfer Procedures
|
MASTER
BULK SALE AND INTERIM SERVICING AGREEMENT
This
is a
Master Bulk Sale and Interim Servicing Agreement (the “Agreement”) for
adjustable and fixed rate residential first and second mortgage loans, dated
and
effective as of November 1, 2005, and is executed among OCWEN MORTGAGE ASSET
TRUST I, as purchaser (the “Purchaser”), AAMES CAPITAL CORP., as seller and
interim servicer (the “Seller”) and solely with respect to Sections 9.10 and
9.11, ▇▇▇▇▇▇▇▇▇ MANAGEMENT GROUP, LLC, as fund advisor to the
Purchaser.
W I T N E S S E T H
WHEREAS,
the Purchaser has agreed to purchase from time to time from the Seller and
the
Seller has agreed to sell from time to time to the Purchaser first and second
lien adjustable and fixed rate mortgage loans, together with the servicing
rights associated with such Mortgage Loans; and
WHEREAS,
the Mortgage Loans will be sold by the Seller and purchased by the Purchaser
as
pools or groups of whole loans, servicing released (each, a “Mortgage Loan
Package”) on the various Closing Dates as provided herein; and
WHEREAS,
each of the Mortgage Loans as of the related Closing Date will be secured by
a
mortgage, deed of trust or other security instrument creating a first or second
lien on a residential dwelling located in the jurisdiction indicated on the
related Mortgage Loan Schedule for the related Mortgage Loan Package, which
will
be annexed to a Memorandum of Sale (defined herein) on the related Closing
Date;
and
WHEREAS,
the Purchaser and the Seller wish to prescribe the manner of purchase of the
Mortgage Loans and the conveyance, interim servicing and control of the Mortgage
Loans.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Seller agree as
follows:
ARTICLE II
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the content otherwise
requires, shall have the following meanings:
Accepted
Practices:
Procedures (including collection procedures) that comply with Applicable Laws
and that the Seller customarily employs and exercises in underwriting,
originating, servicing and administering mortgage loans for its own account
and
which are in accordance with the accepted mortgage originating and servicing
practices of prudent subprime mortgage lending institutions which originate
and
service mortgage loans of the same type as the Mortgage Loans in the
jurisdiction where the related Mortgaged Property is located.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan that contains a provision pursuant to which the Mortgage Interest
Rate is adjusted periodically.
Adjustment
Date:
As to
each Adjustable Rate Mortgage Loan, the date on which the Mortgage Interest
Rate
is adjusted in accordance with the terms of the related Mortgage Note and
Mortgage.
Affiliate:
With
respect to any specified Person, any other Person controlling, controlled by
or
under common control with such specified Person.
Agreement:
This
Master Bulk Sale and Interim Servicing Agreement and all amendments hereof
and
supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Applicable
Laws:
All
legal and regulatory requirements (including statues, rules, regulations and
ordinances) of federal, state and local governmental agencies, boards,
commissions, instrumentalities or other governmental bodies to which any
Mortgage Loan or any previous or current party (including the servicer) to
any
Mortgage Loan is subject.
Appraisal:
Either
(i) written appraisal of a Mortgaged Property made by a Qualified
Appraiser,
which
appraisal must be written, in form and substance to satisfy the requirements
of
Title XI of the Financial Institution, Reform, Recovery and Enforcement Act
of
1989 and the regulations promulgated thereunder, in effect as of the date of
the
appraisal or (ii) to the extent reflected on the Mortgage Loan Schedule, another
form of valuation of the Mortgaged Property permitted under the related
Underwriting Guidelines.
Appraised
Value:
With
respect to any Mortgage Loan, the lesser of (i) the value set forth on the
Appraisal made in connection with the origination of the related Mortgage Loan
as the value of the related Mortgaged Property, or (ii) the purchase price
paid
for the Mortgaged Property, provided, however, that in the case of a refinanced
Mortgage Loan, such value shall be based solely on the Appraisal made in
connection with the origination of such Mortgage Loan.
Assignment,
Assumption and Recognition Agreement:
The
agreement substantially in the form of Exhibit
E
attached
hereto.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser.
Balloon
Mortgage Loan:
Any
Mortgage Loan which by its original terms or any modifications thereof provides
for amortization beyond its scheduled maturity date.
BPO:
A
broker’s price opinion with respect to a Mortgaged Property.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking or savings
and loan institutions in the State of New York or the state in which the
Seller’s servicing operations are located are authorized or obligated by law or
executive order to be closed.
Buydown
Agreement:
An
agreement between the Seller and a Mortgagor, or an agreement among the Seller,
a Mortgagor and a seller of a Mortgaged Property or a third party with respect
to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds:
In
respect of any Buydown Loan, any amount contributed by the seller of a Mortgaged
Property subject to a Buydown Loan, the buyer of such property, the Seller
or
any other source, plus interest earned thereon, in order to enable the Mortgagor
to reduce the payments required to be made from the Mortgagor’s funds in the
early years of a Mortgage Loan.
Buydown
Loan:
Any
Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i) the
Mortgagor pays less than the full monthly payments specified in the Mortgage
Note for a specified period and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Closing
Date:
With
respect to a Mortgage Loan Package, the date or dates, set forth in the related
Memorandum of Sale, on which the Purchaser will purchase and the Seller will
sell the Mortgage Loans identified therein.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
Cooperative
Loan Documents:
With
respect to any Cooperative Loan, (i) the Cooperative Shares, together with
a
stock power in blank; (ii) the original executed Security Agreement and the
assignment of the Security Agreement endorsed in blank; (iii) the original
executed Proprietary Lease and the assignment of the Proprietary Lease endorsed
in blank; (iv) the original executed Recognition Agreement and the
assignment of the Recognition Agreement (or a blanket assignment of all
Recognition Agreements) endorsed in blank; (v) the executed UCC-1 financing
statement with evidence of recording thereon, which has been filed in all places
required to perfect the security interest in the Cooperative Shares and the
Proprietary Lease; and (vi) the Seller’s executed UCC-3 financing statements (or
copies thereof) or other appropriate UCC financing statements required by state
law, evidencing a complete and unbroken chain of title from the mortgagee to
the
Seller with evidence of recording thereon (or in a form suitable for
recordation).
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
Cooperative
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single family dwelling located in a Cooperative Property.
Credit
Score:
The
credit score of the Mortgagor provided by an organization providing credit
scores at the time of the origination of a Mortgage Loan as reflected on the
related Mortgage Loan Schedule and determined in accordance with the related
Underwriting Guidelines.
Custodial
Agreement:
The
agreement between the Purchaser and the Custodian governing the retention of
the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents.
Custodian:
The
custodian under the Custodial Agreement, which shall initially be Deutsche
Bank
National Trust Company, or its successor in interest or assigns, or any
successor to the Custodian under the Custodial Agreement as provided
therein.
Cut-off
Date:
With
respect to each Mortgage Loan, as specified in the related Memorandum of Sale,
either the first day of the month of the related Closing Date or such other
date
specified in the related Trade Confirmation.
Delivery
Requirements:
As
defined in Section 5.01.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace, as specified in the related Mortgage Note.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Seller pursuant
to
Section 4.03.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, mortgage insurance premiums, fire and
hazard insurance premiums, and any other payments required to be escrowed by
the
Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇
▇▇▇:
The
entity formerly known as Federal National Mortgage Association (FNMA), or any
successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Seller pursuant to
Section 4.03.
First
Lien:
With
respect to each Mortgaged Property, the lien of the mortgage, deed of trust
or
other instrument securing a Mortgage Note which creates a first lien on the
Mortgaged Property.
Flood
Zone Service Contract:
A
transferable contract maintained for the Mortgaged Property with a nationally
recognized flood zone service provider for the purpose of obtaining the current
flood zone relating to such Mortgaged Property.
▇▇▇▇▇▇▇
Mac:
The
entity formerly known as the Federal Home Loan Mortgage Corporation (FHLMC),
or
any successor thereto.
GAAP:
Generally accepted accounting principles, consistently applied.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which is added to the Index in order to
determine the related Mortgage Interest Rate, as set forth in the Mortgage
Loan
Schedule.
HUD:
The
United States Department of Housing and Urban Development or any federal agency
or official thereof which may from time to time succeed to the functions thereof
with regard to FHA mortgage insurance. The term “HUD,” for purposes of this
Agreement, is also deemed to include subdivisions thereof such as the FHA and
Government National Mortgage Association.
Index:
With
respect to any Adjustable Rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest therein.
Interest-Only
Adjustment Date:
With
respect to each Interest-Only Mortgage Loan, the date specified in the related
Mortgage Note on which the Monthly Payment will be adjusted to include principal
as well as interest.
Interest-Only
Mortgage Loan:
A
Mortgage Loan which only requires payments of interest for a period of time
specified in the related Mortgage Note.
Interim
Servicing Fee:
With
respect to each Mortgage Loan, the amount of the fee the Purchaser shall pay
to
the Company for servicing the Mortgage Loans in accordance with the terms of
this Agreement during the Interim Servicing Period, which shall be equal to
ten
dollars ($10.00) per Mortgage Loan per month, unless otherwise agreed by the
parties. Such fee shall be payable monthly (a pro rata Interim Servicing Fee
shall be paid for any partial month within the Interim Servicing
Period).
Interim
Servicing Period:
With
respect to each Mortgage Loan Package, the period of time from and including
the
related Closing Date to but not including the related Servicing Transfer
Date.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of (i) the original loan amount of
the
Mortgage Loan at its origination (unless otherwise indicated) plus, in the
case
of Second Lien Mortgage Loans, the amount of any related First Lien as of the
date of origination of the Mortgage Loan and (ii) to the Appraised Value of
the
Mortgaged Property.
Market
Change Event:
(a) a
suspension or material limitation in trading in securities generally on the
New
York Stock Exchange or on NASDAQ; (b) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; or (c) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in clause
(c) in the judgment of the Purchaser makes it impracticable or inadvisable
to
proceed with the transactions as contemplated in this Agreement on the terms
and
in the manner contemplated in this Agreement.
Material
Adverse Change:
(a) a
material adverse change in, or a material adverse effect upon, the operations,
business, properties, condition (financial or otherwise) or prospects of the
Seller; (b) a material impairment of the ability of the Seller to perform under
this Agreement or any related agreements; or (c) a material adverse effect
upon
the legality, validity, binding effect or enforceability of this Agreement
against the Seller (unless such material adverse effect is directly caused
by an
action of the Purchaser which can be remedied by the Purchaser).
Memorandum
of Sale:
With
respect to each Mortgage Loan and Mortgage Loan Package, the memorandum of
sale,
substantially in the form of Exhibit
D
attached
hereto, confirming the sale by Seller and the purchase by Purchaser of the
Mortgage Loan Package on the related Closing Date.
Monthly
Payment:
With
respect to any Mortgage Loan (other than an Option ARM Mortgage Loan) the
scheduled monthly payment of principal and/or interest on a Mortgage Loan.
With
respect to any Option ARM Mortgage Loan, the payment of interest and/or
principal elected to be paid by a Mortgagor pursuant to the payment options
under the related Mortgage Note on each Due Date which payment may change on
any
Due Date as provided in the related Mortgage Note.
Mortgage:
With
respect to any Mortgage Loan that is not a Cooperative Loan, the mortgage,
deed
of trust or other instrument securing a Mortgage Note, which creates a first
or
second lien on the Mortgaged Property securing the Mortgage Note and, with
respect to a Cooperative Loan, the related Servicing Agreement.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit A
annexed
hereto, and any additional documents required to be added to the Mortgage File
pursuant to this Agreement.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note in accordance with the
provisions of the Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule annexed to the related Memorandum of Sale, which Mortgage
Loan includes without limitation the Mortgage File, the Monthly Payments,
Principal Prepayments, liquidation proceeds, condemnation proceeds, insurance
proceeds and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
documents referred to in Exhibit
A
as items
1 through 11.
Mortgage
Loan Package:
The
pool or group of whole loans purchased on a Closing Date, as described in the
Mortgage Loan Schedule annexed to the related Memorandum of Sale.
Mortgage
Loan Schedule:
With
respect to each Mortgage Loan Package, the schedule of Mortgage Loans annexed
to
the related Memorandum of Sale (and delivered in electronic format to the
Purchaser), such schedule setting forth the information set forth on
Exhibit
B
with
respect to each Mortgage Loan in the related Mortgage Loan Package.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
With
respect to each Mortgage Loan that is not a Cooperative Loan, the Mortgagor’s
real property or leasehold interest, including any improvements, securing
repayment of a related Mortgage Note, consisting of an unsubordinated estate
in
fee simple or, with respect to real property located in jurisdictions in which
the use of leasehold estates for residential properties is a widely-accepted
practice, a leasehold estate, in a single parcel or multiple parcels of real
property improved by a residential dwelling. With respect to each Cooperative
Loan, the Cooperative Shares allocated to a Cooperative Unit in the related
Cooperative Corporation that were pledged to secure such Cooperative Loan and
the related Proprietary Lease.
Mortgagor:
The
obligor on a Mortgage Note.
Negative
Amortization:
A
gradual increase in the mortgage debt that occurs when the Monthly Payment
is
not sufficient for full application to both principal and interest. The interest
shortage is added to the unpaid principal balance to create “negative”
amortization.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Chief Executive Officer,
the President, an Executive Vice President, a Senior Vice President, a Vice
President or an Assistant Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Seller,
and
delivered to the Purchaser as required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Seller, reasonably
acceptable to the Purchaser.
Option
ARM Mortgage Loan:
An
Adjustable Rate Mortgage Loan with an original term to maturity of not more
than
thirty (30) years and with respect to which the related borrower may choose
a
flexible payment option each month pursuant to the terms of the related Mortgage
Note.
Originator:
With
respect to any Mortgage Loan, the entity that (i) took the Mortgagor’s loan
application, (ii) processed the Mortgagor’s loan application, or (iii) closed
and/or funded such Mortgage Loan.
Periodic
Interest Rate Cap:
As to
each Adjustable Rate Mortgage Loan, the maximum increase or decrease in the
Mortgage Interest Rate on any Adjustment Date pursuant to the terms of the
Mortgage Note.
Person:
Any
individual, corporation, partnership, joint venture, limited liability company,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Prepayment
Premium:
With
respect to a Prepayment Premium Loan, the prepayment charge or penalty interest
required to be paid by the Mortgagor in connection with a prepayment of the
related Mortgage Loan, as provided in the related Mortgage Note or Mortgage,
and
as specified on the related Mortgage Loan Schedule.
Prepayment
Premium Loan:
Each
Mortgage Loan identified on the related Mortgage Loan Schedule with respect
to
which the Mortgagor must pay a Prepayment Premium in connection with a Principal
Prepayment.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any Prepayment Premium thereon
and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
Purchase
Price:
The
price specified in the related Memorandum of Sale and paid on the Closing Date
by the Purchaser to the Seller for the Mortgage Loans included in one or more
Mortgage Loan Packages, as calculated and adjusted as set forth in the related
Trade Confirmation.
Purchaser:
Ocwen
Mortgage Asset Trust I, or its successor in interest or any successor or
assignee to the Purchaser under this Agreement as herein provided.
Qualified
Appraiser:
An
appraiser, duly appointed by the Seller, who had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation was not affected by the approval or disapproval of the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfied the requirements of Title XI of the Financial Institution Reform,
Recovery, and Enforcement Act and the regulations promulgated thereunder, all
as
in effect on the date the Mortgage Loan was originated.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten as
described in clause (i) above and were acquired by the Seller within one hundred
eighty (180) calendar days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller’s own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans
properly applied the underwriting criteria designated by the
Seller.
Qualified
Substitute Mortgage Loan:
A
mortgage loan eligible to be substituted by the Seller for a Deleted Mortgage
Loan which must, on the date of such substitution be approved by the Purchaser.
Rating
Agency:
Each of
Fitch, Inc., ▇▇▇▇▇’▇ Investors Service, Inc., and Standard & Poor’s Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor
thereto.
Recognition
Agreement:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17
C.F.R.§§229.1100-229.1123, as such may be amended from time to time, and subject
to such clarification and interpretation as have been provided by the Commission
in the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
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 a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the Code,
and related provisions, and regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Repurchase
Price:
With
respect to any Mortgage Loan for which discovery of or notice of breach occurs
within twelve (12) months after the Closing Date a price equal to (i) the Stated
Principal Balance of the Mortgage Loan as of the date on which such repurchase
takes place multiplied by the purchase price percentage set forth in the related
Memorandum of Sale plus (ii) interest on such Stated Principal Balance at the
Mortgage Interest Rate from the date on which interest has last been paid and
distributed to the Purchaser through the last day of the month in which such
repurchase takes place, plus (iii) all costs and expenses incurred by the
Purchaser arising out of or based upon the related breach of representation
and
warranty of the Seller, including without limitation costs and expenses incurred
in the enforcement of the Seller’s repurchase obligation under Section 3.03,
plus (iv) all costs and expenses incurred by or on behalf of the Purchaser
in
connection with any predatory or abusive-lending law, less (v) amounts received
or advanced in respect of such repurchased Mortgage Loan which are being held
by
the Successor Servicer for distribution in the month of repurchase. With respect
to any Mortgage Loan for which discovery of or notice of breach occurs more
than
twelve (12) months after the Closing Date, a price equal to (i) the Stated
Principal Balance of the Mortgage Loan as of the date on which such repurchase
takes place plus (ii) interest on such Stated Principal Balance at the Mortgage
Interest Rate from the date on which interest has last been paid and distributed
to the Purchaser through the last day of the month in which such repurchase
takes place, plus (iii) all costs and expenses incurred by the Purchaser arising
out of or based upon the related breach of representation and warranty of the
Seller, including without limitation costs and expenses incurred in the
enforcement of the Seller’s repurchase obligation under Section 3.03, plus (iv)
all costs and expenses incurred by or on behalf of the Purchaser in connection
with any predatory or abusive-lending law, less (v) amounts received or advanced
in respect of such repurchased Mortgage Loan which are being held by the
Successor Servicer for distribution in the month of repurchase.
RESPA:
The
Real Estate Settlement Procedures Act, as amended.
Second
Lien:
With
respect to each Mortgaged Property, the lien of the mortgage, deed of trust
or
other instrument securing a Mortgage Note which creates a second lien on the
Mortgaged Property.
Second
Lien Mortgage Loan:
A
Mortgage Loan secured by the lien on the Mortgaged Property, subject to one
prior lien on such Mortgaged Property securing financing obtained by the related
Mortgagor.
Securities
Act of 1933 or the 1933 Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller:
Aames
Capital Corp., or its successor in interest or assigns, or any successor to
the
Seller under this Agreement appointed as herein provided.
Seller
Employees:
As
defined in Section 4.03.
Seller
Information:
As
defined in Section 8.05.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Seller of its servicing obligations hereunder.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Seller consisting of
originals or copies, which may be imaged copies, of all documents in the
Mortgage File which are not delivered to the Custodian and copies of the
Mortgage Loan Documents listed in the Custodial Agreement the originals of
which
are delivered to the Custodian pursuant to Section 2.03.
Servicing
Transfer Date:
The
date on which the responsibility for the servicing of the Mortgage Loans
included in a Mortgage Loan Package transfers from Seller to the Successor
Servicer, which date shall be the date which is, unless otherwise agreed by
the
Seller and the Purchaser, fifteen (15) calendar days following the related
Closing Date (or if such date is not a Business Day, the Business Day
immediately succeeding such date).
Stated
Principal Balance:
As to
each Mortgage Loan, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal received
on or
before such date, whether or not received (except with respect to Option ARM
Mortgage Loans, in which case, to the extent received), minus (ii) all amounts
previously distributed to the Purchaser with respect to the related Mortgage
Loan representing payments or recoveries of principal or advances in lieu
thereof.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Subservicer:
Aames
Funding Corporation.
Subservicing
Agreement:
Any
subservicing agreement between the Seller and any Subservicer relating to
servicing and/or administration of some or all of the Mortgage Loans included
in
a Mortgage Loan Package.
Successor
Servicer:
Ocwen
Loan Servicing, LLC and any successor servicer with respect to the Mortgage
Loans.
Tax
Service Contract:
A
transferable contract maintained for the Mortgaged Property with a tax service
provider for the purpose of obtaining current information from local taxing
authorities relating to such Mortgaged Property.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Trade
Confirmation:
With
respect to any Mortgage Loan Package purchased and sold on any Closing Date,
the
letter agreement between the Purchaser and the Seller, in the form attached
hereto as Exhibit
C
(including any exhibits, schedules and attachments thereto) or as shall be
agreed upon by the parties from time to time, setting forth the terms and
conditions of such transaction and describing the Mortgage Loans to be purchased
by the Purchaser on such Closing Date. A Trade Confirmation may relate to more
than one Mortgage Loan Package to be purchased on one or more Closing Dates
hereunder.
Underwriting
Guidelines:
The
underwriting guidelines of the Seller attached hereto as Exhibit
F,
as may
be updated and incorporated into Exhibit
F
from
time to time by providing such updates to the Purchaser.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to a
third party, which sale or transfer is not a Securitization
Transaction.
ARTICLE
III
AGREEMENT
TO PURCHASE; CONVEYANCE OF MORTGAGE LOANS; PURCHASE PRICE; POSSESSION OF
MORTGAGE FILES; MAINTENANCE OF SERVICING FILES; BOOKS AND RECORDS; CUSTODIAL
AGREEMENT; DELIVERY OF DOCUMENTS; CLOSING CONDITIONS
Section
3.01. Agreement
to Purchase; Conveyance of Mortgage Loans; Purchase Price; Possession of
Mortgage Files; Maintenance of Servicing Files.
(A) Agreement
to Purchase; Conveyance of Mortgage Loans
In
exchange for the payment of the Purchase Price on the related Closing Date,
the
Seller agrees to sell and the Purchaser agrees to purchase, without recourse,
but subject to the terms of this Agreement, on a servicing released basis,
all
of the right, title and interest of the Seller in and to the Mortgage Loans
in a
Mortgage Loan Package having an aggregate Stated Principal Balance on the
related Cut-off Date in an amount as set forth in the related Memorandum of
Sale. The Seller shall deliver the Mortgage Loan Schedule for the Mortgage
Loan
Package to be purchased on the related Closing Date to the Purchaser at least
two (2) Business Days prior to such Closing Date. Pursuant to Section 2.03,
the
Seller will deliver the Mortgage Loan Documents to the Custodian.
Notwithstanding any provision in this Agreement to the contrary, Mortgage Loans
purchased under this Agreement may not be subject to any risk sharing agreement
between the Originator and any mortgage insurance company, and the Seller shall
any Mortgage Loan subject to such arrangement to be released therefrom prior
to
the related Closing Date or shall not sell such Mortgage Loan to the
Purchaser.
(B) Purchase
Price
The
Purchase Price for each Mortgage Loan listed on the related Mortgage Loan
Schedule shall be the percentage of par as stated in or otherwise calculated
pursuant to the related Trade Confirmation (subject to adjustment as provided
therein), multiplied by its Stated Principal Balance as of the related Cut-off
Date. If so provided in the related Trade Confirmation, portions of the Mortgage
Loans shall be priced separately. In addition to the Purchase Price as described
above, the Purchaser shall pay to the Seller, at closing, accrued interest
on
the Stated Principal Balance of each Mortgage Loan as of the related Cut-off
Date at the Mortgage Interest Rate from the related Cut-off Date through the
day
prior to the related Closing Date, both inclusive. With respect to each Mortgage
Loan (other
than Option ARM Mortgage Loans) purchased,
the Purchaser shall own and be
entitled to receive: (a) all Monthly Payments due (or received in the case
of
the Option ARM Mortgage Loans)
after
the applicable Cut-off Date
and
(b) all
other payments and/or recoveries of principal collected on or after the
applicable Cut-off Date (provided, however, that all scheduled payments of
principal and interest due on or before the applicable Cut-off Date and
collected by the Servicer after the applicable Cut-off Date shall,
except
in the case of the Option ARM Mortgage Loans,
belong
to the Seller).
(C) Possession
of Mortgage Files; Maintenance of Servicing Files
The
contents of each Servicing File are and shall be held in trust by the Seller
for
the benefit of the Purchaser as the owner thereof. The Seller shall take all
necessary steps to ensure that the documents required to be included in the
Servicing File are complete and shall maintain the Servicing File as required
by
this Agreement and Accepted Practices. Possession of each Servicing File by
the
Seller is at the will of the Purchaser for the sole purpose of servicing the
related Mortgage Loan during the Interim Servicing Period, and such retention
and possession by the Seller is in a custodial capacity only. Upon the sale
of
the Mortgage Loans, the ownership of each Mortgage Note, the related Mortgage
and the related Mortgage File and Servicing File shall vest immediately in
the
Purchaser, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Seller shall vest immediately in the Purchaser and shall be retained and
maintained by the Seller, in trust, at the will of the Purchaser and only in
such custodial capacity. The Seller shall release its custody of the contents
of
any Servicing File only in accordance with written instructions from the
Purchaser or is in connection with the transfer of servicing pursuant to Section
5.01 or a repurchase of any Mortgage Loan pursuant to Section 3.03.
Servicing Files for the Mortgage Loans shall be delivered to the Successor
Servicer on or before the related Servicing Transfer Date.
(D) Tax
Service Contract; Flood Zone Service Contract
Each
Mortgage Loan shall be covered by a life of loan Tax Service Contract and a
life
of loan Flood Zone Service Contract.
(E) Home
Mortgage Disclosure Act
The
Seller shall provide to the Purchaser all data and information (in form and
substance acceptable to the Purchaser) required to be collected by the
Originator or owner of mortgage loans under the Home Mortgage Disclosure
Act.
Section
3.02. Books
and Records; Transfers of Mortgage Loans.
The
sale
of each Mortgage Loan shall be reflected on the Seller’s balance sheet and other
financial statements, tax returns and business records as a sale of assets
by
the Seller. The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser, or its designee, and shall deliver to the Purchaser
upon demand, evidence of compliance with all Applicable Laws, including but
not
limited to documentation as to the method used in determining the applicability
of the provisions of the Flood Disaster Protection Act of 1973, as amended,
to
the Mortgaged Property and documentation evidencing insurance
coverage.
For
the
purposes of this Agreement, the Seller shall be under no obligation to deal
with
any person with respect to this Agreement or the Mortgage Loans unless the
books
and records show such person as the owner of the Mortgage Loan. The Purchaser
may, subject to the terms of this Agreement, sell and transfer one or more
of
the Mortgage Loans.
Section
3.03. Custodial
Agreement; Delivery of Documents.
The
Seller will, with respect to each Mortgage Loan, deliver and release the
Mortgage Loan Documents to the Custodian at least five (5) Business Days prior
to the related Closing Date. The Seller further agrees that it will not alter
the information referenced in this paragraph with respect to any Mortgage Loan
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
The
Custodian shall be required to certify its receipt of the Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement prior
to
the related Closing Date, as evidenced by the initial certification of the
Custodian in the form annexed to the Custodial Agreement. The Purchaser shall
be
responsible for the initial and on-going fees and expenses of the
Custodian.
Except
as
otherwise provided in this Section 2.03 and in Section 3.03, upon discovery
or
receipt of notice of any defective document required to be included in a
Mortgage File, or that a document required to be in a Mortgage File is missing,
the Seller shall have sixty (60) days to cure such defect or deliver such
missing document to the Custodian. Any document required to be included in
a
Mortgage File that is not executed as required or does not strictly comply
with
all legal requirements shall be deemed to be defective. If the Seller does
not
cure such defect or deliver such missing document within such time period,
the
Seller shall repurchase such Mortgage Loan in accordance with Section
3.03.
If
the
original or a copy certified by the appropriate recording office of any document
submitted for recordation to the appropriate public recording office is not
so
delivered to the Custodian within one hundred fifty (150) calendar days
following the related Closing Date, and if the Seller does not cure such failure
within thirty (30) calendar days after receipt of written notification of such
failure from the Purchaser, the related Mortgage Loan shall, upon the request
of
the Purchaser, be repurchased by the Seller at a price and in the manner
specified in Section 3.03.
In
the
event the public recording office is delayed in returning any original document,
the Seller shall deliver to the Custodian within one hundred eighty (180)
calendar days following the related Closing Date, a copy of such document and
an
Officer’s Certificate, which shall (i) identify the recorded document;
(ii) state that the recorded document has not been delivered to the
Custodian due solely to a delay by the public recording office, (iii) state
the
amount of time generally required by the applicable recording office to record
and return a document submitted for recordation, and (iv) specify the date
the
applicable recorded document will be delivered to the Custodian. The Seller
will
be required to deliver the document to the Custodian by the date specified
in
(iv) above. An extension of the date specified in (iv) above may be requested
from the Purchaser, which consent shall not be unreasonably withheld. However,
if the Seller cannot either (i) deliver such original or clerk-certified copy
of
any document submitted for recordation to the appropriate public recording
office or (ii) provide evidence satisfactory to the Purchaser that the Seller
is
using commercially reasonable efforts to obtain such recorded copy within three
hundred sixty five (365) calendar days following the related Closing Date,
the
Seller shall, at the option of the Purchaser, indemnify the Purchaser for
expenses related to such failure and repurchase the related Mortgage Loan at
the
price and in the manner specified in Section 3.03.
In
addition to any rights granted to the Purchaser hereunder to underwrite the
Mortgage Loans and review the Mortgage Loan Documents prior to the Closing
Date,
the Purchaser shall be entitled to conduct a due diligence review of the
Mortgage Files in accordance with the timetable and any additional terms and
conditions set forth in the Trade Confirmation. Such underwriting by the
Purchaser or its designee shall not impair or diminish the rights of the
Purchaser or any of its successors under this Agreement with respect to a breach
of the representations and warranties contained in this Agreement. The fact
that
the Purchaser or its designee has conducted or has failed to conduct any partial
or complete examination of the Mortgage Files shall not affect the Purchaser’s
or any of its successors’ rights to demand repurchase or other relief or remedy
provided for in this Agreement.
Section
3.04. Quality
Control Procedures.
The
Seller shall have an internal quality control program in writing that verifies,
on a regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program shall
include evaluating and monitoring the overall quality of the Seller’s
underwriting, originating, administering and servicing activities in accordance
with industry standards and Applicable Laws. The Seller shall make available
upon request of the Purchaser the Seller’s quality control policies and
procedures.
Section
3.05. Closing
Conditions.
The
closing for the purchase and sale of each Mortgage Loan Package shall take
place
on the respective Closing Date. The closing shall be either: by telephone,
confirmed by letter or wire as the parties shall agree; or conducted in person,
at such place as the parties may agree.
The
closing for each Mortgage Loan Package shall be subject to the satisfaction
of
each of the following conditions:
(a) with
respect to the Purchaser’s obligations to close:
(i) the
Seller shall have delivered to the Purchaser and the Custodian the related
Mortgage Loan Schedule and an electronic data file containing information on
a
loan-level basis;
(ii) all
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct as of the related Closing Date (or such other date specified
herein) in all material respects;
(iii) the
Purchaser and its counsel shall have received an opinion from the Seller’s
counsel, substantially in the form of Exhibit
G
attached
hereto (with respect to the initial closing only);
(iv) the
Purchaser shall have received from the Custodian an initial certification with
respect to its receipt of the Mortgage Loan Documents for the related Mortgage
Loans, which certification shall be in form and substance acceptable to the
Purchaser;
(v) the
Purchaser shall have received originals of the related Memorandum of Sale,
the
related Trade Confirmation and a funding memorandum setting forth the Purchase
Price(s), and the accrued interest thereon, for the Mortgage Loan Package,
in
each case executed on behalf of the Seller;
(vi) no
Material Adverse Change or Market Change Event shall have occurred since the
date of the Trade Confirmation; and
(vii) all
other
terms and conditions of this Agreement, the related Memorandum of Sale and
the
related Trade Confirmation to be satisfied by the Seller shall have been
complied with in all material respects; and
(b) with
respect to the Seller’s obligations to close:
(i) the
Seller shall have received a copy of the initial certification of the Custodian
with respect to its receipt of the Mortgage Loan Documents for the related
Mortgage Loans;
(ii) the
Seller has received originals of the related Memorandum of Sale, the related
Trade Confirmation and a funding memorandum setting forth the Purchase Price(s),
and accrued interest thereon, for the Mortgage Loan Package, in each case
executed on behalf of the Purchaser; and
(iii) all
terms
and conditions of this Agreement, the related Memorandum of Sale and the related
Trade Confirmation to be satisfied by the Purchaser shall have been materially
complied with.
Upon
satisfaction of the foregoing conditions, the Purchaser shall pay to the Seller
on such Closing Date the Purchase Price for the related Mortgage Loan Package,
including accrued interest pursuant to Section 2.01 of this
Agreement.
Section
3.06. Costs.
The
Purchaser shall pay any commissions due its salesmen, the Custodian and the
legal fees and expenses of its attorneys. All other costs and expenses incurred
in connection with the transfer and delivery of the Mortgage Loans, including
without limitation recording fees, fees for title policy endorsements and
continuations, fees for recording Assignments of Mortgage, if any, and the
Seller’s attorney’s fees, shall be paid by the Seller.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
Section
4.01. Seller
Representations, Warranties and Covenants Regarding the Seller.
The
Seller hereby makes the representations, warranties and covenants set forth
in
Exhibit
H
hereto
to the Purchaser as of the related Closing Date.
Section
4.02. Representations,
Warranties and Covenants Regarding Individual Mortgage Loans.
As
to
each Mortgage Loan, the Seller hereby makes the representations, warranties
and
covenants set forth in Exhibit
I
hereto
to the Purchaser as of the related Closing Date.
Section
4.03. Repurchase
and other Remedies.
It
is
understood and agreed that the representations and warranties set forth in
the
exhibits referred to in Sections 3.01 and 3.02 shall survive the sale of
the Mortgage Loans to the Purchaser and the delivery of the Mortgage Loan
Documents to the Custodian and shall inure to the benefit of the Purchaser
and
any Successor Servicer hereunder, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination
or
failure to examine any Mortgage File. Notwithstanding the foregoing sentence,
the representations and warranties set forth in Exhibit I hereto referred to
in
Section 3.02 contained in the following sections: 1 (b), (c), (d), (m), (p),
(r), (u), (x), (ee), (ff), (gg), (jj), (mm), (bbb), (eee), (fff), (ggg), (qqq),
and 2(o) shall expire two (2) years from the Closing Date. Upon discovery by
either the Seller or the Purchaser of any defective or missing document required
to be included in a Mortgage File (“Defective Document”) or a breach of any of
the foregoing representations and warranties either of which materially
adversely affects the value of a Mortgage Loan or the interest of the Purchaser
(or that adversely affects the interests of Purchaser in the related Mortgage
Loan in the case of a representation and warranty relating to a particular
Mortgage Loan), the party discovering such Defective Document or a breach shall
give prompt written notice to the other. Any such breach or Defective Document
that causes a Mortgage Loan not be a “qualified mortgage” within the meaning of
Section 860G(a)(3) of the Code shall be deemed to adversely affect the interests
of the Purchaser. With respect to the representations and warranties set forth
in the exhibits referred to in Sections 3.01 and 3.02 that are made to the
best
of the Seller’s knowledge, if it is discovered that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan or the interest of
the
Purchaser in such Mortgage Loan, the Purchaser shall be entitled to all the
remedies to which it would be entitled for a breach of representation or
warranty, including without limitation, the repurchase and indemnification
requirements contained herein, notwithstanding the Seller’s lack of knowledge
with respect to the inaccuracy at the time the representation was
made.
Within
sixty (60) calendar days of the earlier of either discovery by or notice to
the
Seller of any Defective Document or a breach of a representation or warranty
which materially adversely affects the value of a Mortgage Loan or the interest
of the Purchaser therein, the Seller shall use its best efforts promptly to
cure
such breach in all material respects and, if such Defective Document or breach
cannot be cured, the Seller shall, at the Purchaser’s option, repurchase such
Mortgage Loan at the Repurchase Price. In the event that a breach shall involve
any representation or warranty set forth in Section 3.01, and such breach cannot
be cured within sixty (60) calendar days of the earlier of either discovery
by
or notice to the Seller of such breach, all of the Mortgage Loans shall, at
the
Purchaser’s option, be repurchased by the Seller at the Repurchase Price.
However, if the breach or Defective Document shall involve a representation
or
warranty set forth in the exhibit referred to in Section 3.02 and the Seller
discovers or receives notice of any such breach within ninety (90) days of
the
related Closing Date, the Seller shall, if the breach or Defective Document
cannot be cured, at the Purchaser’s option and provided that the Seller has a
Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage Loan
as
provided above, remove such Mortgage Loan (a “Deleted Mortgage Loan”) and
substitute in its place a Qualified Substitute Mortgage Loan or Loans, provided
that any such substitution shall be effected not later than one hundred twenty
(120) days after the related Closing Date. Notwithstanding any of the foregoing,
if a breach or Defective Document would cause the Mortgage Loan to be other
than
a “qualified mortgage,” as defined in Section 860G(a)(3) of the Code, any such
repurchase or substitution must occur within forty-five (45) calendar days
from
the date the breach or Defective Document was discovered unless such breach
is
cured during such period. In addition, for purposes of this Section 3.03, any
document required to be included in a Mortgage File that is not executed as
required or does not strictly comply with all legal requirements shall be deemed
to adversely affect the interests of the Purchaser. Notwithstanding anything
to
the contrary herein, within sixty (60) calendar days of the earlier of either
discovery by or notice to the Seller of any breach of the representations or
warranties set forth in subsections 2 and 3 of Exhibit
H,
the
Seller shall repurchase such Mortgage Loan at the Repurchase Price.
If
the
Seller has no Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan within sixty (60) days after the written notice of
the
breach or Defective Document. Any repurchase of a Mortgage Loan or Loans
pursuant to the foregoing provisions of this Section 3.03 shall be accomplished
by deposit in such account as the Purchaser shall identify to the Seller of
the
amount of the Repurchase Price, after deducting therefrom any amount received
in
respect of such repurchased Mortgage Loan or Loans and being held by the Seller
or the Successor Servicer for distribution to the Purchaser.
At
the
time of repurchase or substitution, the Purchaser and the Seller shall arrange
for the reassignment of the applicable Mortgage Loan to the Seller and the
delivery to the Seller of the related Mortgage File previously delivered by
the
Seller to the Purchaser or its designee. In the event of a repurchase, the
Seller shall, simultaneously with such reassignment, give written notice to
the
Purchaser that such repurchase or substitution has taken place and amend the
related Mortgage Loan Schedule to reflect the withdrawal of the Deleted Mortgage
Loan from this Agreement, and, in the case of substitution, identify a Qualified
Substitute Mortgage Loan and amend the related Mortgage Loan Schedule to reflect
the addition of such Qualified Substitute Mortgage Loan to this Agreement.
In
connection with any such substitution, the Seller shall be deemed to have made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in the exhibits referred to in Sections 3.01 and 3.02 except that
such
representations and warranties set forth in this Agreement shall be deemed
made
as of the date of such substitution. The Seller shall effect such substitution
by delivering to the Custodian for such Qualified Substitute Mortgage Loan
the
documents required by Section 2.03, with the Mortgage Note endorsed as required
by Section 2.03. No substitution will be made in any calendar month after the
Determination Date for such month. The Seller shall deposit in such account
as
the Purchaser shall identify to the Seller for the Monthly Payment less the
Interim Servicing Fee due on such Qualified Substitute Mortgage Loan or Loans
in
the month following the date of such substitution. Monthly Payments due with
respect to Qualified Substitute Mortgage Loan in the month of substitution
shall
be retained by the Seller. With respect to any Deleted Mortgage Loan,
distributions to the Purchaser shall include the Monthly Payment due on any
Deleted Mortgage Loan in the month of substitution, and the Seller shall
thereafter be entitled to retain all amounts subsequently received by the Seller
in respect of such Deleted Mortgage Loan.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the amount (if any) by which
the
aggregate principal balance of all such Qualified Substitute Mortgage Loans
as
of the date of substitution is less than the aggregate Stated Principal Balance
of all such Deleted Mortgage Loans (after application of the principal portion
of the Monthly Payments due in the month of substitution) (the “Substitution
Adjustment Amount”) shall be deposed to such account as the Purchaser shall
identify to the Seller.
In
addition to such repurchase obligation, the Seller shall indemnify the Purchaser
and any Successor Servicer and hold each of them harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments, and other costs and expenses resulting from any claim
or defense resulting from a breach of the representations and warranties of
the
Seller contained in this Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Section 3.03 to cure or repurchase
a
defective Mortgage Loan and to indemnify the Purchaser and Successor Servicer
as
provided in this Section 3.03 constitute the sole remedies of the Purchaser
and
Successor Servicer respecting a breach of the foregoing representations and
warranties. For purposes of this paragraph, “Purchaser” shall mean the Person
then acting as the Purchaser under this Agreement and any and all Persons who
previously were “Purchasers” under this Agreement and “Successor Servicer” shall
mean the Person then acting as the Successor Servicer under this Agreement
and
any and all Persons who previously were “Successor Servicers” under this
Agreement.
Upon
the
request of the Purchaser, the Seller hereby agrees to execute a recognition
agreement recognizing the servicer designated by the Purchaser therein as the
Successor Servicer.
Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties set forth in the exhibits referred to in Sections
3.01 and 3.02 shall accrue as to any Mortgage Loan upon (i) discovery of such
breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii)
failure by the Seller to cure such breach or repurchase such Mortgage Loan
as
specified above, and (iii) demand upon the Seller by the Purchaser for
compliance with this Agreement.
Section
4.04. Payment
Default; Exercise of Rescission Right.
If
the
related Mortgagor is thirty (30) calendar days or more delinquent with respect
to any of the Mortgage Loan’s first three (3) Monthly Payments due after the
related Closing Date or a debtor in any state or federal bankruptcy or
insolvency proceeding filed within sixty (60) calendar days following the
related Closing Date and the Purchaser notifies the Seller within forty-five
(45) calendar days of receipt of notice or other actual knowledge by the
Purchaser or the Successor Servicer of such delinquent payment or the filing
of
such insolvency proceeding (provided, that with respect to the Mortgage Loans
transferred on the initial Closing Date, such notice must be provided within
sixty (60) calendar days of receipt of notice or other actual knowledge), the
Seller, at the Purchaser’s option, shall repurchase such Mortgage Loan from the
Purchaser at the Repurchase Price within five (5) calendar days following
receipt of such written notice to the Seller. In the event a Mortgagor exercises
any right of rescission it may have with respect to the related Mortgage Loan
that arises as a result of an act or omission prior to the related Closing
Date,
the Seller shall repurchase such Mortgage Loan at the related Repurchase Price
within thirty (30) calendar days of receiving written notice of such Mortgagor’s
intention to rescind the Mortgage Loan.
Section
4.05. Premium
Recapture.
If
any
Mortgage Loan prepays in full within the first three (3) months following the
related Closing Date, then (i) with respect to any such Mortgage Loan that
does
not provide for a Prepayment Premium, the Seller will pay to the Purchaser
the
premium paid by the Purchaser in excess of par as set forth in the related
Memorandum of Sale and (ii) with respect to any such Mortgage Loan that provides
for a Prepayment Premium, the Seller shall pay to the Purchaser such Prepayment
Premium, plus the amount, if any, by which the purchase price premium in excess
of par paid by the Purchaser exceeds the amount of such Prepayment Premium.
The
Seller shall remit the amounts payable under clauses (i) and (ii) above, for
the
benefit of the Purchaser or any assignee of the Purchaser, by wire transfer
of
immediately available funds no later than the fifth (5th)
Business Day following the date the related prepayment is received by the Seller
or the Seller is notified that the related prepayment has been received by
the
Successor Servicer.
Section
4.06. Review
of Mortgage Loans.
Prior
to
the related Closing Date, the Purchaser shall have the right to review the
Mortgage Files and obtain BPOs on the Mortgaged Properties relating to the
Mortgage Loans purchased on the related Closing Date. In addition, the Purchaser
shall have the right to reject any Mortgage Loan which in the Purchaser’s sole
determination (i) fails to conform to the Underwriting Guidelines, (ii) is
underwritten without verification of the Mortgagor’s income and assets and there
is no credit report or Credit Score, (iii) is not an acceptable credit risk,
or
(iv) the value of the Mortgaged Property pursuant to any BPO varies by more
than
plus or minus 15% from the lesser of (A) the original appraised value of the
Mortgaged Property or (B) the purchase price of the Mortgaged Property as of
the
date of origination of the related Mortgage Loan. The Seller shall make
available all files required by Purchaser in order to complete its review,
including all CRA/HMDA required data fields.
ARTICLE
V
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS DURING THE INTERIM SERVICING
PERIOD
Section
5.01. Seller
to Act as Servicer.
(a) The
Mortgage Loans are being sold by the Seller to the Purchaser on a servicing
released basis. During the related Interim Servicing Period, the Seller, as
an
independent contractor, shall service and administer the Mortgage Loans on
behalf of the Purchaser and shall have full power and authority, acting alone
or
through Subservicers, to do any and all things in connection with such servicing
and administration which the Seller may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Practices; provided, however,
that the servicing activities of the Seller hereunder shall be restricted to
such minimal servicing and collection activities as are necessary for preserving
and collecting the Mortgage Loans on a temporary basis, it being agreed and
understood that the servicing of the Mortgage Loans is intended to be
transferred to the Purchaser or the Purchaser’s designee on or before the
related Servicing Transfer Date. The Seller shall service the Mortgage Loans
in
accordance with Accepted Practices subject to the limitations set forth in
this
Section 4.01(a). The Seller will advise Purchaser from time to time of such
servicing actions, including, without limitation, filing of notices of default,
that the Seller believes should be taken with respect to the Mortgage Loans
and
will take such actions to the extent authorized to do so by the Purchaser.
Notwithstanding any provision in this Agreement to the contrary, the Seller
shall not make any Servicing Advances in excess of $500 with respect to any
Mortgage Loan (other than for taxes and insurance) without the consent of the
Purchaser. In the event that servicing of the Mortgage Loans is not transferred
to the Purchaser or the Purchaser’s designee within thirty (30) calendar days of
the related Closing Date, the Seller and the Purchaser shall enter into mutually
agreeable servicing agreement to govern the servicing of the Mortgage Loans
for
the remainder of the Interim Servicing Period.
(b) The
Seller shall be entitled to all late payment fees and other ancillary income
(other than Prepayment Premiums) received from the related Mortgagor during
the
Interim Servicing Period.
Section
5.02. Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the related Servicing Transfer Date, in accordance
with this Agreement and Accepted Practices, the Seller shall proceed diligently
to collect all payments due under each of the Mortgage Loans when the same
shall
become due and payable and shall ascertain and estimate Escrow Payments and
all
other charges that will become due and payable with respect to the Mortgage
Loan
and the Mortgaged Property, to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable. The Seller shall remit to the Purchaser on or before the third
(3rd)
Business Day following the related Servicing Transfer Date any and all amounts
received on account of the Mortgage Loans during the Interim Servicing Period,
including, without limitation, payments of principal and interest and insurance
proceeds, such remittance to be by wire transfer in the case of cash received
and by overnight delivery service with respect to checks and other instruments.
Such remittance shall be accompanied by a report in form and detail reasonably
satisfactory to Purchaser setting forth the source and application of all
amounts received.
Section
5.03. Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Seller shall maintain with responsible companies, at its own expense, a blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other persons acting in any capacity requiring
such persons to handle funds, money, documents or papers relating to the
Mortgage Loans (“Seller Employees”). Any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be in the form of the Mortgage Banker’s Blanket
Bond and shall protect and insure the Seller against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
Seller Employees. Such Fidelity Bond and Errors and Omissions Insurance Policy
also shall protect and insure the Seller against losses in connection with
the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section 4.03
requiring such Fidelity Bond and Errors and Omissions Insurance Policy shall
diminish or relieve the Seller from its duties and obligations as set forth
in
this Agreement. The minimum coverage under any such Fidelity Bond and Errors
and
Omissions Insurance Policy shall be at least equal to the amounts acceptable
to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. Upon the request of the Purchaser, the Seller shall
cause to be delivered to the Purchaser a certificate of insurance for such
Fidelity Bond and Errors and Omissions Insurance Policy.
Section
5.04. Gramm
▇▇▇▇▇ ▇▇▇▇▇▇ Act.
The
Seller shall comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 and
all
applicable regulations promulgated thereunder, relating to the Mortgage Loans
and the related Mortgagors and shall provide all required notices thereunder
required prior to the Servicing Transfer Date.
Section
5.05. Disaster
Recovery/Business Continuity Plan.
The
Seller shall establish and maintain contingency plans, recovery plans and proper
risk controls to ensure Seller’s continued performance under this Agreement. The
plans must be in place within thirty (30) calendar days after the Closing Date
of this Agreement and shall include, but not be limited to, testing, control
functions, accountability and corrective actions to be immediately implemented,
if necessary. The Seller agrees to make copies or summaries of the plans
available to the Purchaser or appropriate regulator upon request.
ARTICLE
VI
TRANSFER
OF SERVICING
Section
6.01. Assumption
of Responsibilities at Transfer Date.
On
the
Servicing Transfer Date, the Purchaser, or its designee, shall assume all
servicing responsibilities related to, and the Seller will cease all servicing
responsibilities (except as expressly set forth herein) related to, the Mortgage
Loans. On or prior to the Servicing Transfer Date (or in the case of (c), (d)
and (e) below, within three (3) Business Days from and after the Servicing
Transfer Date or by such other date as may be specified in this Agreement or
as
may be otherwise agreed), the Seller will take such steps as are provided for
in
the servicing transfer procedures attached hereto as Exhibit
K
(the
“Servicing Transfer Procedures”), or as may otherwise be necessary or
appropriate to effectuate and evidence the transfer of the servicing of the
Mortgage Loans to the Purchaser, or its designee, including but not limited
to
the following (which shall not apply to the extent they are inconsistent with
the Servicing Transfer Procedures):
(a) Notice
to the Mortgagors.
The
Seller shall mail to each Mortgagor a letter advising the Mortgagor of the
transfer of the servicing of the related transferring Mortgage Loan to the
Purchaser, or its designee, in accordance with RESPA, Regulation X and other
applicable laws and regulations; provided, however, the content and format
of
the letter in a standard from shall have the prior approval of the Purchaser.
The Seller shall provide the Purchaser with copies of all such related notices
no later than fifteen (15) calendar days from and after the Servicing Transfer
Date.
(b) Notice
of Taxing Authorities and Insurance Companies.
The
Seller shall transmit to the applicable taxing authorities and insurance
companies and/or agents, notification of the transfer of the servicing to the
Purchaser, or its designee, and instructions to deliver all notices, tax bills
and insurance statements, as the case may be, to the Purchaser, or its designee,
from and after the Servicing Transfer Date, with an officer’s certificate of a
servicing officer of the Seller, confirming that all such notices have been
transmitted, together with a copy of the related standard form(s) of such
notifications no later than the Servicing Transfer Date.
(c) Delivery
of Servicing Records.
The
Seller shall forward to the Purchaser, or its designee, all servicing records
and the Servicing Files in the Seller’s possession relating to each transferring
Mortgage Loan, and shall make available to the Purchaser, or its designee,
during normal business hours, any such records.
(d) Escrow
Payments.
The
Seller shall provide the Purchaser, or its designee, with immediately available
funds by wire transfers in the amount of the net Escrow Payments and suspense
balances and all loss draft balances associated with the Mortgage Loans. The
Seller shall provide the Purchaser, or its designee, with an accounting
statement of Escrow Payments and suspense balances and loss draft balances
sufficient to enable the Purchaser, or its designee, to reconcile the amount
of
such payment with the accounts of the Mortgage Loans. Additionally, the Seller
shall wire transfer to the Purchaser the amount of any prepaid transferring
Mortgage Loan payments and all other similar amounts held by the
Seller.
(e) Mortgage
Payments Received Prior to Servicing Transfer Date.
Prior
to the Servicing Transfer Date all payments received by the Seller on each
Mortgage Loan shall be properly applied by the Seller to the account of the
particular Mortgagor.
(f) Mortgage
Payments Received After the Servicing Transfer Date.
The
amount of any Monthly Payments for the Mortgage Loans received by the Seller
within sixty (60) calendar days after the Servicing Transfer Date shall be
forwarded to the Purchaser by wire transfer or overnight mail within two (2)
Business Days of receipt. The Seller shall notify the Purchaser of the
particulars of the payment, which notification requirement shall be satisfied
if
the Seller forwards with its payment sufficient information to permit
appropriate processing of the payment to the Purchaser. The Seller shall assume
full responsibility for the endorsement of such Monthly Payment to the Purchaser
with the particulars of the payment such as the account number, dollar amount,
date received and any special Mortgagor application instructions with respect
to
such Monthly Payments received by the Seller after the Servicing Transfer Date
with respect to any Mortgage Loans then in foreclosure or
bankruptcy.
(g) Misapplied
Payments.
Misapplied payments (including without limitation payments returned for
insufficient funds) on Mortgage Loans shall be processed as follows: (i) all
parties shall cooperate in correcting misapplication errors; (ii) the party
receiving notice of a misapplied payment occurring prior to the Servicing
Transfer Date and discovered after the Servicing Transfer Date shall immediately
notify the other party; (iii) if a misapplied payment occurred prior to the
Servicing Transfer Date cannot be identified and said misapplied payment has
resulted in a shortage in a custodial account or escrow account, the Seller
shall be liable for the amount of such shortage; the Seller shall reimburse
the
Purchaser for the amount of such shortage within thirty (30) calendar days
after
the receipt of written demand thereof from the Purchaser; (iv) if a misapplied
payment which occurred prior to the Servicing Transfer Date has created an
improper Purchase Price as the result of an inaccurate outstanding principal
balance, the party with notice of such misapplied payment shall promptly inform
the other party and a wire transfer or check shall be issued to the party
shorted by the improper payment application within ten (10) Business Days after
notice thereof by the other party; and (v) any wire transfer or check issued
under the provisions of this paragraph shall be accompanied by a statement
indicating the corresponding Seller and/or the Purchaser Mortgage Loan
identification number and an explanation of the allocation of any such payments
or by fax.
(h) Books
and Records.
On the
Servicing Transfer Date, the books, records and accounts of the Seller with
respect to the servicing of the Mortgage Loans shall be in accordance with
the
Accepted Practices.
(i) Reconciliation.
The
Seller shall, on or before the Servicing Transfer Date, reconcile principal
balances and make any monetary adjustments for the Mortgage Loans as agreed
to
by Seller and Purchaser. Any such monetary adjustments will be transferred
between the Seller and the Purchaser as appropriate.
(j) IRS
Forms.
The
Seller shall file all IRS forms 1099, 1099A, 1098, or 1041 and K-1 which are
required to be filed in relation to the servicing and ownership of the Mortgage
Loans on or before the Servicing Transfer Date. The Seller shall provide copies
of such forms to the Purchaser upon reasonable request and shall reimburse
the
Purchaser for any penalties or reasonable costs incurred by the Purchaser due
to
the Seller’s failure to comply with this paragraph.
(k) Insurance
Premiums.
The
Seller shall pay all hazard and flood insurance premiums due within thirty
(30)
calendar days after the Servicing Transfer Date, provided that the Seller has
received bills for insurance premiums at least fourteen (14) days prior to
the
Servicing Transfer Date.
(l) Property
Taxes.
The
Seller shall pay all tax bills (including interest, late charges and penalties
in connection therewith) due, meaning economic loss, within thirty (30) calendar
days after the Servicing Transfer Date, provided that the Seller has received
such bills at least fourteen (14) calendar days prior to the Servicing Transfer
Date. For ninety (90) calendar days after the Servicing Transfer Date, the
Seller shall deliver such tax bills as it may receive with respect to the
Mortgage Loans to Purchaser within two (2) Business Days of receipt of the
same,
thereafter Seller shall exercise reasonable efforts to deliver such tax bills
as
it may receive with respect to the Mortgage Loans to Purchaser within a
reasonable time of its receipt of same.
(m) Insurance
Policies.
For
ninety (90) calendar days after the Servicing Transfer Date, the Seller shall
deliver such insurance policies or renewals and invoiced as it may receive
with
respect to the Mortgage Loans to Purchaser within ten (10) Business Days of
its
receipt of same, thereafter Seller shall exercise reasonable efforts to deliver
such insurance policies or renewals and invoices as it may receive with respect
to the Mortgage Loans to Purchaser within a reasonable time of its receipt
of
same.
(n) Escrow
Analysis.
The
Seller has properly conducted escrow analysis with respect to such Mortgage
Loan
as may be required under Applicable Laws. With respect to any each applicable
Mortgage Loan, any adjustment to the escrow payment due, refunds of escrow
overages and collections of escrow shortages have been made in accordance with
Applicable Laws.
(o) Transfer
of Servicing.
On the
related Servicing Transfer Date, the Seller shall transfer servicing of the
related Mortgage Loans to the Purchaser or its designee pursuant to the terms
of
this Agreement and the procedures reasonably agreed to by the Seller, the
Purchaser and the Purchaser’s designee. At the Purchaser’s option and upon
reasonable notice, the Seller shall effect the transfer of servicing for the
related Mortgage Loans by means of a “tape to tape” transfer. All information
provided to the Purchaser or its designee shall be provided electronically.
The
Seller shall pay any costs and expenses the Purchaser or its designee incurs
related to the manual transfer of any information to the Purchaser or its
designee.
(p) Reimbursement
for Servicing Advances.
Following a Servicing Transfer Date, the Seller shall be reimbursed for any
unreimbursed Servicing Advances in relation to any related Mortgage Loan. Such
reimbursement shall be paid by the Purchaser or its designee to the Seller
following the delivery of a reasonably detailed invoice or other evidence of
such amounts to the Purchaser. This Section 5.01(p) shall survive each Servicing
Transfer Date.
ARTICLE
VII
SELLER
TO COOPERATE
Section
7.01. Provision
of Information.
During
the term of this Agreement, the Seller shall furnish to the Purchaser such
periodic, special, or other reports or information as the Purchaser may
reasonably request, and copies or originals of any documents contained in the
Servicing File for each Mortgage Loan provided for herein. All other special
reports or information not provided for herein as shall be necessary,
reasonable, or appropriate with respect to the Purchaser or any regulatory
agency will be provided at the Purchaser’s expense. All such reports, documents
or information shall be provided by and in accordance with all reasonable
instructions and directions which the Purchaser may give
The
Seller shall execute and deliver all such instruments and take all such action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
Section
7.02. Financial
Statements.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser the audited financial statements of the Seller,
which
shall include information relating to the Seller, for the most recently
completed two fiscal years for which such financial statements are available,
as
well as a consolidated statement of condition at the end of the last two fiscal
years covered by such consolidated statement of condition. The Seller also
shall
make available any comparable interim statements to the extent any such
statements have been prepared by or on behalf of the Seller (and are available
upon request to members or stockholders of the Seller or to the public at
large).
The
Seller also shall make available to the Purchaser or prospective purchaser
a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Seller or the financial
statements of the Seller, and to permit the Purchaser to inspect the Seller’s
servicing facilities for the purpose of satisfying the Purchaser that the Seller
has the ability to interim service the Mortgage Loans as provided in this
Agreement.
Section
7.03. Reports
of Litigation.
During
the term of this Agreement, the Seller shall provide to the Purchaser notice
of
any and all actions, suits, proceedings or other litigation (each, a “Litigation
Event”) to which the Seller is a party and that is reasonably likely to have a
material effect on the Mortgage Loans. The Seller shall furnish to the Purchaser
such reports or information regarding such Litigation Event as the Purchaser
may
reasonably request. All such reports and information shall be provided at the
Seller’s sole expense.
ARTICLE VIII
THE
SELLER
Section
8.01. Indemnification;
Third Party Claims.
The
Seller shall indemnify the Purchaser and the Successor Servicer (each, an
“Indemnified Party”) and hold them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures and reasonable and necessary legal fees
and related costs, judgments, and any other costs, fees and expenses related
thereto sustained by the Indemnified Party due to the failure of the Seller
to
perform its duties and service the Mortgage Loans in compliance with the terms
of this Agreement. The Purchaser shall immediately notify the Seller if a claim
is made by a third party with respect to Seller’s breach of this Agreement. The
Seller immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans, and if such claim
is
prior to the Servicing Transfer Date, assume (with the prior written consent
of
the Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim. The Seller shall follow any written instructions received from
the Purchaser in connection with such claim. The Purchaser promptly shall
reimburse the Seller for all amounts advanced by it pursuant to the preceding
sentence except when the claim is in any way related to the Seller’s
indemnification pursuant to Section 3.03, or the failure of the Seller to
service and administer the Mortgage Loans in strict compliance with the terms
of
this Agreement. The provisions of this Section 7.01 shall survive termination
of
this Agreement.
Section
8.02. Merger
or Consolidation of the Seller.
The
Seller shall keep in full effect its existence, rights and franchises as a
corporation, and shall obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement or
any
of the Mortgage Loans and to perform its duties under this
Agreement.
The
Seller shall provide notice to the Purchaser immediately upon any merger,
conversion or consolidation to which the Seller shall be a party or any sale
of
substantially all of the assets of the Seller , or any change in the senior
management of the Seller. Any Person succeeding to the business of the Seller
shall be the successor of the Seller 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 shall be an institution having a GAAP net worth
of
not less than that of the Seller at the time of the transaction. Furthermore,
in
the event the Seller transfers or otherwise disposes of all or substantially
all
of its assets to an affiliate of the Seller, such affiliate shall be fully
liable to the Purchaser for all of the Seller’s obligations and liabilities
hereunder.
Section
8.03. Limitation
on Liability of Seller and Others.
Neither
the Seller nor any of the directors, officers, employees or agents of the Seller
shall be under any liability to the Purchaser 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 Seller or any such person against any breach of warranties
or representations made herein, or failure to perform its obligations in
compliance with any standard of care set forth in this Agreement or any other
liability which would otherwise be imposed under this Agreement. The Seller
and
any director, officer, employee or agent of the Seller 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 Seller shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve
it
in any expense or liability; provided, however, that the Seller may, with the
consent of the Purchaser, undertake any such action which it may deem necessary
or desirable in respect to this Agreement and the rights and duties of the
parties hereto. In such event, the Seller shall be entitled to reimbursement
from the Purchaser of the reasonable legal expenses and costs of such action,
unless any such costs result from a breach of the Seller’s representations and
warranties made herein or its failure to perform its obligations in compliance
with this Agreement.
Section
8.04. Limitation
on Resignation and Assignment by Seller.
The
Seller shall neither assign this Agreement or the servicing hereunder or
delegate its rights or duties hereunder or any portion hereof or sell or
otherwise dispose of all of its property or assets other than pursuant to
Section 7.02 hereunder without the prior written consent of the Purchaser,
which
consent shall not be unreasonably withheld.
The
Seller shall not resign from the obligations and duties hereby imposed on it
except by mutual consent of the Seller and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
Applicable Laws and such incapacity cannot be cured by the Seller. Any such
determination permitting the resignation of the Seller shall be evidenced by
an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor acceptable to the Purchaser
shall have assumed the Seller’s responsibilities and obligations
hereunder.
ARTICLE
IX
RECONSTITUTION
OF MORTGAGE LOANS AND COMPLIANCE WITH REGULATION AB
As
to
each Mortgage Loan, the Seller hereby agrees to comply with the provisions
set
forth in Exhibit
J
hereto,
as such Exhibit
J
may be
amended from time to time.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
Section
10.01. Amendment.
This
Agreement may be amended from time to time by the Seller and by written
agreement signed by the Seller and the Purchaser.
Section
10.02. Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
EACH
OF
THE SELLER AND THE PURCHASER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OR ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL
OR WRITTEN), OR ACTIONS OF THE SELLER OR THE PURCHASER. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PURCHASER TO ENTER INTO THIS AGREEMENT.
Section
10.03. Arbitration.
(a) If
the
Parties are unable to resolve a dispute arising out of or relating to this
Agreement within ten (10) Business Days following the end of any applicable
cure
period, or if there is specified cure period within thirty (30) calendar days
following the receipt of notice of a claim, the parties will in good faith
attempt to resolve such dispute through non-binding mediation before a mediator
acceptable to both parties, provided, however, that disputes relating to
Sections 9.10 and/or 9.11 shall not be subject to this provision.
(b) Any
controversy or claim, other than those specifically excluded, between or among
the parties not resolved through mediation under the preceding provision, shall
at the request of either party be settled by binding arbitration. The
arbitration shall be conducted by a panel of three arbitrators (the “Arbitration
Panel”). Each party shall select one arbitrator for the Arbitration Panel and
the third member of the Arbitration Panel shall be selected by mutual agreement
of the arbitrators named by each party. The arbitration shall be held in
Charlotte, N.C. under the auspices of the Commercial Arbitration Rules of the
American Arbitration Association.
The
scope
and schedule of any discovery related to the arbitration shall be determined
by
mutual agreement of the parties. In the event that the parties are unable to
agree with respect to either the scope or schedule of discovery, the discovery
process shall be as ordered by the Arbitration Panel. Sections 9.10 and 9.11
of
this Agreement shall apply to the arbitration proceeding, all evidence taken,
and the Arbitration Panel’s opinion, which shall be Confidential Information of
both parties. Judgment upon the decision rendered by the Arbitration Panel
may
be entered in any court having jurisdiction.
No
provision of this Section shall limit the right of a party to seek injunctive
or
other equitable relief from a court of competent jurisdiction pending the
outcome of any arbitration. The exercise of a remedy does not waive the right
of
either party to initiate arbitration.
Each
party shall bear its own costs and expenses and an equal share of the
arbitrators’ and administrative fees of arbitration.
Section
10.04. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or delivered by
overnight courier:
(a) if
to the
Seller:
Aames
Capital Corp.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Executive Vice President Capital Markets
Telecopy:
(▇▇▇)▇▇▇-▇▇▇▇
with
a
copy to:
Aames
Capital Corp.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Telecopy:
(▇▇▇)▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished to the Purchaser in writing
by
the
Seller;
(b) if
to the
Purchaser:
Ocwen
Mortgage Asset Trust I
c/o
Ocwen
Mortgage Asset Investment Company, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Secretary
Telecopy:
(▇▇▇)▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished to the Seller in writing by the
Purchaser.
Section
10.05. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, 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.
Section
10.06. Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of the Seller shall be
rendered as an independent contractor and not as agent for the
Purchaser.
Section
10.07. Successors
and Assigns; Assignment of Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and the respective permitted successors and assigns
of
the Seller and the successors and assigns of the Purchaser. After the Closing
Date, this Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. The
Purchaser shall have the right, without the consent of the Seller, to assign,
in
whole or in part, its interest under this Agreement with respect to some or
all
of the Mortgage Loans, and designate any person to exercise any rights of the
Purchaser hereunder, by executing an Assignment, Assumption and Recognition
Agreement, and the assignee or designee shall accede to the rights and
obligations hereunder of the Purchaser with respect to such Mortgage Loans.
All
references to the Purchaser in this Agreement shall be deemed to include its
assignee or designee. In the event the Purchaser assigns this Agreement, and
the
assignee assumes any of the Purchaser’s obligations hereunder, the Seller
acknowledges and agrees to look first to such assignee, and not the Purchaser,
for performance of the obligations so assumed and, solely to the extent such
assignee fulfills Purchaser’s obligation, the Purchaser shall be relieved from
any liability to the Seller with respect thereto. The Successor Servicer shall
be an intended third party beneficiary of this Agreement to the same extent
as
if it were a party hereto and shall have the right to enforce the provisions
of
this Agreement.
Section
10.08. Solicitation
of Mortgagor.
The
Seller agrees that, from and after the Closing Date, it will not take any action
or permit or cause any action to be taken by any of its agents or affiliates,
or
by any independent contractors on the Seller’s behalf, to personally, by
telephone or mail, solicit the borrower under any Mortgage Loan for the purpose
of refinancing, in whole or in part, or offering other loans or related
financial products. It is understood and agreed that all rights and benefits
relating to the solicitation of any Mortgagors and the attendant rights, title
and interest in and to the list of such Mortgagors and data relating to the
Mortgages (including insurance renewal dates) shall be transferred to the
Purchaser pursuant to this Agreement on the Closing Date and the Seller shall
take no action to undermine these rights and benefits. Notwithstanding the
foregoing, it is understood and agreed that promotions undertaken by Seller
or
any affiliate of the Seller which are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists, and newspaper, radio and television advertisements shall not
constitute solicitation under this Section.
Section
10.09. Further
Agreements.
The
Purchaser and the Seller each agree to execute and deliver to the other such
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
Section
10.10. Confidential
Information.
(a) The
Purchaser and the Seller hereby acknowledge that certain information including,
without limitation, the Mortgage Loans, exchanged by them pursuant to this
Agreement is confidential, sensitive, or proprietary in nature. Either the
Purchaser or the Seller may also designate information as “Confidential” by
written notice to the other party at the time of initial disclosure of such
information. Each of the Purchaser and the Seller agrees that such
“Confidential” information shall be used solely for the purpose of ceding or
assuming reinsurance under the terms and conditions of this Agreement and shall
be disclosed only to employees, agents, and representatives of the other party
as is necessary for the performance of that party’s obligations under this
Agreement. Such employees, agents, and representatives shall use reasonable
safeguards to maintain the confidentiality of such information and to prevent
its disclosure to any person not authorized to receive such
information.
(b) The
term
“Confidential Information” shall mean this Agreement and all proprietary
information, data, trade secrets, business information and other information
of
any kind whatsoever that: (a) a party hereto (“Discloser”) discloses, in
writing, orally or visually, to the other party (“Recipient”) or to which
Recipient obtains access in connection with the negotiation and performance
of
this Agreement, and which (b) relates to: (i) a party hereto or its customers
or
(ii) third-party vendors or licensors who have made confidential or proprietary
information available to a party hereto. Confidential Information shall include
Customer Information (as defined below).
(c) The
Seller acknowledges that the Purchaser has a responsibility to its customers
to
keep information about its customers and their accounts (“Customer Information”)
strictly confidential. In addition to the other requirements set forth in this
Section 9.10 regarding Confidential Information, Customer Information shall
also
be subject to the additional restrictions set forth in this Subsection. The
Seller shall not disclose or use Customer Information other than to carry out
the purposes for which such Customer Information has been disclosed to the
Seller. The Seller shall not disclose any Customer Information other than on
a
“need to know” basis and then only to: (a) affiliates of the Purchaser; (b) its
employees or officers; (c) affiliates of the Seller provided that such
affiliates shall be restricted in use and redisclosure of the Customer
Information to the same extent as the Seller; (d) to subcontractors provided
that such subcontractors shall have entered into a confidentiality agreement
no
less restrictive than the terms hereof; (e) to independent contractors, agents,
experts and consultants hired or engaged by the Purchaser, provided that all
such persons are subject to a confidentiality agreement which shall be no less
restrictive than the provisions of this Section; or (f) pursuant to the
exceptions set forth in 15 U.S.C. § 6802(e) and accompanying regulations which
disclosures are made in the ordinary course of business. The restrictions set
forth herein shall apply during the term and after the termination of this
Agreement.
(d) The
Purchaser acknowledges that the Seller has a responsibility to its customers
to
keep information about its customers and their accounts (“Customer Information”)
strictly confidential. In addition to the other requirements set forth in this
Section 9.10 regarding Confidential Information, Customer Information shall
also
be subject to the additional restrictions set forth in this Subsection. The
Purchaser shall not disclose or use Customer Information other than to carry
out
the purposes for which such Customer Information has been disclosed to the
Purchaser. The Purchaser shall not disclose any Customer Information other
than
on a “need to know” basis and then only to: (a) affiliates of the Purchaser; (b)
its employees or officers; (c) affiliates of the Seller provided that such
affiliates shall be restricted in use and redisclosure of the Customer
Information to the same extent as the Purchaser; (d) to subcontractors provided
that such subcontractors shall have entered into a confidentiality agreement
no
less restrictive than the terms hereof; (e) to independent contractors, agents,
experts and consultants hired or engaged by the Purchaser, provided that all
such persons are subject to a confidentiality agreement which shall be no less
restrictive than the provisions of this Section; or (f) pursuant to the
exceptions set forth in 15 U.S.C. § 6802(e) and accompanying regulations which
disclosures are made in the ordinary course of business. The restrictions set
forth herein shall apply during the term and after the termination of this
Agreement.
(e) Each
of
the Purchaser and the Seller, as the Recipient, hereby agrees on behalf of
itself and its employees, officers, affiliates and subcontractors that
Confidential Information will not be disclosed or made available to any person
for any reason whatsoever, other than on a “need to know basis” and then only
to: (a) its employees and officers; (b) subcontractors and other third parties
specifically permitted under this Agreement, provided that all such persons
are
subject to a confidentiality agreement which shall be no less restrictive than
the provisions of this Section 9.10; (c) independent contractors, agents,
experts and consultants hired or engaged by the Purchaser, provided that all
such persons are subject to a confidentiality agreement which shall be no less
restrictive than the provisions of this Section 9.10; and (d) as required by
law
or as otherwise permitted by this Agreement, either during the term of this
Agreement or after the termination of this Agreement. Prior to any disclosure
of
Confidential Information as required by law, the Recipient shall use its
reasonable best efforts to: (i) notify the Discloser of any, actual or
threatened legal compulsion of disclosure, and any actual legal obligation
of
disclosure immediately upon becoming so obligated, and (ii) cooperate with
the
Discloser’s reasonable, lawful efforts to resist, limit or delay
disclosure.
(f) Upon
the
termination or expiration of this Agreement, the Recipient shall destroy or
return, in its sole discretion, all Confidential Information, including Customer
Information, in the possession of the Recipient or in the possession of any
third party over which Recipient has or may exercise control to the extent
such
Confidential Information is not required for audit or record keeping purposes;
provided that Customer Information which is also Customer Information of the
Recipient shall not be required to be returned or destroyed.
(g) With
the
exception of the obligations related to Customer Information, the obligations
of
confidentiality in this Section 9.10 shall not apply to any information which
either the Purchaser or the Seller rightfully has in its possession when
disclosed to it by the other party, information which either the Purchaser
or
the Seller independently develops, information which is or becomes known to
the
public other than by breach of this Section 9.10 or information rightfully
received by either the Purchaser or the Seller from a third party without the
obligation of confidentiality.
(h) Neither
the Purchaser nor the Seller shall issue any media releases, public
announcements and public disclosures, relating to this Agreement or use the
name
or logo of the other party, including, without limitation, promotional or
marketing material, or customer lists, but not including any disclosure required
by legal, accounting or regulatory requirements beyond the reasonable control
of
such party.
Section
10.11. Information
Security and Privacy.
(a) Each
party acknowledges that each other party may be required to comply with the
information security standards required by the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (15 U.S.C.
6801, 6805(b)(1)), as amended, and the regulations issued thereunder (12 C.F.R.
Part 40) (collectively, the “GLB Act”) or with other statutory or regulatory
requirements (collectively, “Privacy Laws”) as well as its internal information
security program for information protection. If applicable, each party shall
make commercial best efforts to assist each other party to so comply and to
conform to its own policies for information protection with applicable Privacy
Laws, as amended from time to time. At the request of another party to this
Agreement, the other parties hereto shall make commercially reasonable
modifications to its information security program or to the procedures and
practices thereunder to conform to such requesting party’s security requirements
as they exist from time to time.
(b) Within
thirty (30) calendar days of receipt of a written request from another party
to
this Agreement, the other parties hereto shall deliver to such requesting
party’s information protection department a copy of its written information
security program. The program shall be designed to:
(i) Ensure
the security, integrity and confidentiality of Confidential
Information;
(ii) Protect
against any anticipated threats or hazards to the security or integrity of
such
Confidential Information;
(iii) Protect
against unauthorized access to or use of such Confidential Information that
could result in substantial harm or inconvenience to the person that is the
subject of such information; and
(iv) Ensure
the proper disposal of such Confidential Information.
Section
10.12. Equal
Opportunity.
The
Purchaser and the Seller represent that they are equal opportunity employers
and
do not discriminate in employment of persons or awarding of subcontracts because
of a person’s race, sex, age, religion, national origin, veteran or handicap
status. The Seller is aware of and fully informed of the Purchaser’s
responsibilities and agrees to the provisions under the following: (a) Executive
Order 11246, as amended or superseded in whole or in part, and as contained
in
Section 202 of said Executive Order as found at 41 C.F.R. § 60-1.4(a)(1-7); (b)
Section 503 of the Rehabilitation Act of 1973 as contained in 41 C.F.R. §
60-741.4; and (c) The Vietnam Era Veterans’ Readjustment Assistance Act of 1974
as contained in 41 C.F.R. § 60-250.4.
Section
10.13. Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
Section
10.14. Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
10.15. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with GAAP;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
Section
10.16. Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
10.17. Trade
Confirmation.
The
terms
and conditions set forth in the Trade Confirmation between the Purchaser and
the
Seller with respect to each Closing Date shall be incorporated herein. In the
event of any conflict between the terms of this Agreement and the related Trade
Confirmation, this Agreement shall control.
[Intentionally
Blank - Next Page Signature Page]
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
OCWEN
MORTGAGE ASSET TRUST I
By:
Delaware Trust Company, National Association
not
in its individual capacity but solely as Owner
Trustee
By:
_________________________________________
Name:
_______________________________________
Title:
________________________________________
AAMES
CAPITAL CORP.
By:
_________________________________________
Name:
_______________________________________
Title:
________________________________________
Solely
with respect to Sections 9.10 and 9.11:
▇▇▇▇▇▇▇▇▇
MANAGEMENT GROUP, LLC
By:
_________________________________________
Name:
_______________________________________
Title:
________________________________________
EXHIBIT
A
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
any prospective Purchaser, and which shall be included in the Servicing File
or
delivered to the Purchaser or the Custodian pursuant to Sections 2.01, 2.02
and
2.03 of the Master Bulk Sale and Interim Servicing Agreement to which this
Exhibit is attached (the “Agreement”):
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1.
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(a)
The original Mortgage Note endorsed “Pay to the order of _____________,
without recourse” and signed in the name of the Seller by an authorized
officer (provided that, in the event that the Mortgage Loan was acquired
by the Seller in a merger, the signature must be in the following
form:
“[Seller], successor by merger to [name of predecessor]”; and in the event
that the Mortgage Loan was acquired or originated by the Seller while
doing business under another name, the signature must be in the following
form: “[Seller], formerly known as [previous name]”). The Mortgage Note
must contain all necessary intervening endorsements showing a complete
chain of endorsement from the Originator (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
|
(b)
With
respect to no more than 1% of the aggregate unpaid principal balance of the
Mortgage Loans included in a Mortgage Loan Package as of the related Cut-off
Date, a certified copy of the Mortgage Note (endorsed as provided above)
together with a lost note affidavit, providing indemnification to the holder
thereof for any losses incurred due to the fact that the original Mortgage
Note
is missing.
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2.
|
The
original of any guarantee executed in connection with the Mortgage
Note
(if any).
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3.
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The
original Mortgage, with evidence of recording thereon, except as
follows:
if in connection with any Mortgage Loan, the Seller cannot deliver
or
cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused
by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such
public
recording office retains the original recorded Mortgage, the Seller
shall
deliver or cause to be delivered to the Custodian, a photocopy of
such
Mortgage, together with (i) in the case of a delay caused by the
public
recording office, an Officer’s Certificate of the Seller stating that such
Mortgage has been dispatched to the appropriate public recording
office
for recordation and that the original recorded Mortgage or a copy
of such
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly
delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the
case
of a Mortgage 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, a copy of such Mortgage
certified by such public recording office or by the title insurance
Seller
that issued the title policy to be a true and complete copy of the
original recorded Mortgage.
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4.
|
The
originals or certified true copies of any document sent for recordation
of
all assumption, modification, consolidation or extension agreements,
with
evidence of recording thereon, or, if the original of any such agreement
with evidence of recording thereon has not been returned by the public
recording office where such agreement has been delivered for recordation
or such agreement has been lost or such public recording office retains
the original recorded agreement, a photocopy of such agreement, certified
by the Seller or its agent to be a true and correct copy of the agreement
delivered to the appropriate public recording office for recordation.
The
original recorded agreement or, in the case of a agreement where
a public
recording office retains the original recorded agreement or in the
case
where an agreement is lost after recordation in a public recording
office,
a copy of such agreement certified by such public recording office
to be a
true and complete copy of the original recorded agreement, will be
promptly delivered to the Custodian upon receipt thereof by the
Seller.
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5.
|
The
Assignment of Mortgage, in blank, for each Mortgage Loan. If the
Mortgage
Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by “[Seller], successor by merger to [name of predecessor].”
If the Mortgage Loan was acquired or originated by the Seller while
doing
business under another name, the Assignment of Mortgage must be made
by
“[Seller], formerly know as [previous name].” Subject to the foregoing and
where permitted under Applicable Laws of the jurisdiction wherein
the
Mortgaged Property is located, such Assignments of Mortgage may be
made by
blanket assignments for Mortgage Loans secured by the Mortgaged Properties
located in the same county.
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6.
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Originals
or certified true copies of documents sent for recordation of all
intervening assignments of the Mortgage, if any, with evidence of
recording thereon, or if any such intervening assignment has not
been
returned from the applicable recording office or has been lost or
if such
public recording office retains the original recorded assignments
of
mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such intervening assignment, together with
(i)
in the case of a delay caused by the public recording office, an
Officer’s
Certificate of the Seller stating that such intervening Assignment
of
Mortgage has been dispatched to the appropriate public recording
office
for recordation and that such original recorded intervening Assignment
of
Mortgage or a copy of such intervening Assignment of Mortgage certified
by
the appropriate public recording office or by the title insurance
Seller
that issued the title policy to be a true and complete copy of the
original recorded intervening Assignment of Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in
the case of an intervening assignment where a public recording office
retains the original recorded intervening Assignment of Mortgage
or in the
case where an intervening Assignment of Mortgage is lost after recordation
in a public recording office, a copy of such intervening Assignment
of
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded intervening Assignment of
Mortgage.
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7.
|
The
original mortgagee policy of title insurance in the form required
by the
Agreement or, if the original lender’s title insurance policy has not been
issued, the preliminary report or irrevocable binder or commitment
to
issue the same.
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8.
|
Any
security agreement, chattel mortgage or equivalent executed in connection
with the Mortgage.
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9.
|
For
each Mortgage Loan which is secured by a residential long-term lease,
if
any, a copy of the lease with evidence of recording indicated thereon,
or,
if the lease is in the process of being recorded, a photocopy of
the
lease, certified by an officer of the respective prior owner of such
Mortgage Loan or by the applicable title insurance Seller,
closing/settlement/escrow agent or Seller or closing attorney to
be a true
and correct copy of the lease transmitted for
recordation.
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10.
|
With
respect to any Cooperative Loan, the applicable Cooperative Loan
Documents.
|
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items to the extent required in the Underwriting
Guidelines:
|
12.
|
The
original hazard insurance policy and, if required by law, flood insurance
policy.
|
|
13.
|
Fully
executed residential loan
application.
|
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14.
|
Fully
executed preliminary Mortgage Loan closing statement (Form HUD-1),
final
Form HUD-1 and any other truth-in-lending or real estate settlement
procedure forms required by law.
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15.
|
Verification
of employment and income (if required pursuant to the Underwriting
Guidelines).
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16.
|
Verification
of acceptable evidence of source and amount of down payment (if required
pursuant to the Underwriting
Guidelines).
|
|
17.
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Credit
report on the Mortgagor.
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18.
|
Residential
appraisal report.
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19.
|
Photograph
of the Mortgaged Property.
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20.
|
Survey
of the Mortgaged Property, if required by the title Seller or Applicable
Law.
|
|
21.
|
Copy
of each instrument necessary to complete identification of any exception
set forth in the exception schedule in the title policy, i.e. map
or plat,
restrictions, easements, sewer agreements, home association declarations,
etc.
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22.
|
All
fully executed required disclosure statements required by Applicable
Laws.
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23.
|
If
applicable, termite report, structural engineer’s report, water potability
and septic certification.
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24.
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Sales
contract, if applicable.
|
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25.
|
Evidence
of payment of taxes and insurance premiums, insurance claim files,
correspondence, current and historical computerized data files (each
of
which may be stored and delivered
electronically).
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|
26.
|
All
other processing, underwriting and closing papers and records which
are
customarily contained in a mortgage file and which are required to
document the Mortgage Loan or to service the Mortgage
Loan.
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27.
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Amortization
Schedule (which may be stored and delivered
electronically).
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28.
|
Payment
history for any Mortgage Loan that has been closed for more than
ninety
(90) calendar days (which may be stored and delivered
electronically).
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29.
|
Fully
executed power of attorney, if
applicable.
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EXHIBIT
A
- Page
EXHIBIT
B
MORTGAGE
LOAN SCHEDULE
(1) the
Seller’s Mortgage Loan number;
(2) Mortgagor’s
name (including any co-mortgagors);
(3) the
full
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ and zip code of the Mortgaged Property and the
mailing address if different than the street address;
(4) a
code
indicating whether the loan was originated through a correspondent, retail,
or
wholesale channel;
(5) the
broker identification number;
(6) the
number of units for all Mortgaged Properties;
(7) the
number of bedrooms and rents by unit;
(8) a
code
indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four-family residence, an
individual unit in a planned unit development or an individual condominium
unit;
(9) the
current Mortgage Interest Rate as of the Cut-off Date;
(10) the
Mortgage Interest Rate as of the date of origination;
(11) the
current Monthly Payment;
(12) the
original term to maturity;
(13) the
scheduled maturity date;
(14) the
original principal amount of the Mortgage Loan and, with respect to Second
Lien
Mortgage Loans, the related First Lien;
(15) the
principal balance of the Mortgage Loan as of the Cut-off Date after deduction
of
payments of principal received on or before the Cut-off Date and with respect
to
Second Lien Mortgage Loans, the principal balance of the related First Lien
as
of the Cut-off Date, after deduction of payments received on or before the
Cut-off Date;
(16) the
Loan-to-Value Ratio
at
origination;
(17) a
code
indicating the Credit Scores of the Mortgagor at the time of origination and
the
source of such Credit Scores;
(18) a
code
indicating the credit grade and specific loan/underwriting program of each
Mortgage Loan as assigned by the Seller;
(19) the
Appraised Value;
(20) the
Due
Date, the Due Date on which the first Monthly Payment was due and the Due Date
as of the Cut-off Date;
(21) the
last
payment date on which a payment was applied;
(22) a
code
indicating the documentation level (full, alternative, limited);
(23) a
code
indicating loan purpose (i.e., purchase financing, rate/term refinancing,
cash-out refinancing);
(24) a
code
indicating whether the Mortgaged Property is owner-occupied or investor
property;
(25) a
code
indicating whether the Mortgagor is self-employed;
(26) a
code
indicating the product type (e.g., 2/28, 3/27, 15-year fixed, 30-year fixed,
15/30 balloon, etc);
(27) a
code
indicating whether the Mortgage Loan is subject to a Prepayment
Premium;
(28) the
term
of any Prepayment Premium;
(29) the
type
and amount of any Prepayment Premium;
(30) the
Mortgagor’s debt to income ratio;
(31) a
code
indicating whether the Mortgage Loan is an Adjustable Rate Mortgage
Loan;
(32) with
respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(33) with
respect to each Adjustable Rate Mortgage Loan, the next Adjustment Date and,
if
different, the date on which the Monthly Payment is changed;
(34) with
respect to each Adjustable Rate Mortgage Loan, the lifetime maximum Mortgage
Interest Rate;
(35) with
respect to each Adjustable Rate Mortgage Loan, the lifetime minimum Mortgage
Interest Rate;
(36) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Interest Rate
Cap;
(37) with
respect to each Adjustable Rate Mortgage Loan, the Index;
(38) with
respect to each Adjustable Rate Mortgage Loan, to the extent that such Mortgage
Loan is an Interest-Only Mortgage Loan, the number of months/years whereby
the
scheduled payment payable by a Mortgagor under the related Mortgage Note on
each
Due Date includes only interest payments;
(39) a
code
indicating whether the Mortgage Loan is an adjustable rate or fixed rate
mortgage loan;
(40) the
name
of the Originator or broker of the Mortgage Loan;
(41) a
code
indicating whether the Mortgaged Property is subject to a First Lien or a Second
Lien;
(42) a
code
indicating the Appraisal type (Tax Assessment, BPO, Drive-By Form 704, URAR,
Form 2065, Form 2055 (Exterior only), Form 2055 (Interior Inspection), or
automated valuation model (“AVM”);
(43) if
the
Appraisal Type in #46 above is an AVM, then a description of the AVM
type;
(44) a
code
indicating whether such Mortgage Loan is a Texas Refinance Loan;
(45) a
code
indicating the cash out purpose of the Mortgage Loan (purchase or
refinance);
(46) Mortgagor
IRS data (ss#, certification date, 1098 exempt code); and
(47) the
Cut-off Date with respect to the Mortgage Loan.
With
respect to the Mortgage Loans in the aggregate in the related Mortgage Loan
Package, the respective Mortgage Loan Schedule shall set forth the following
information, as of the related Cut-off Date:
(1) the
number of Mortgage Loans;
(2) the
current aggregate outstanding principal balance of the Mortgage
Loans;
(3) the
current weighted average Mortgage Interest Rate of the Mortgage Loans;
and
(4) the
weighted average months to maturity of the Mortgage Loans.
EXHIBIT
C
FORM
OF
TRADE CONFIRMATION
[Stored
as a separate document]
EXHIBIT
D
FORM
OF MEMORANDUM OF SALE
CLOSING
DATE:
This
Memorandum of Sale (this “Memorandum”), dated as of the Closing Date referred to
above, confirms the sale by Aames Capital Corp. (the “Seller”) to Ocwen Mortgage
Asset Trust I (the “Purchaser”), and the purchase by the Purchaser from the
Seller, of the first [and second] lien adjustable and fixed rate residential
mortgage loans on a servicing released basis described on the Mortgage Loan
Schedule attached as Schedule I hereto (the “Mortgage Loans”), pursuant to the
terms of the Master Bulk Sale and Interim Servicing Agreement (the “Agreement”),
dated as of November 1, 2005, by and between the Purchaser and the
Seller.
For
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Seller does hereby bargain, sell, convey, assign and transfer
to Purchaser without recourse, except as provided in the Agreement, and on
a
servicing released basis, all right, title and interest of the Seller in and
to
each of the Mortgage Loans, together with all documents maintained as part
of
the related Mortgage Files, all Mortgaged Properties which secure any Mortgage
Loan but are acquired by foreclosure, deed in lieu of foreclosure after the
Cut-off Date or otherwise, all payments of principal and interest received
on
the Mortgage Loans after the Cut-off Date, all other unscheduled collections
collected in respect of the Mortgage Loans after the Cut-off Date, and all
proceeds of the foregoing, subject, however, to the rights of the Seller under
the Agreement.
The
Seller hereby acknowledges receipt of the Purchase Price of $[___________]
with
respect to the Mortgage Loans.
The
Seller has delivered to the Custodian prior to the date hereof the Mortgage
Loan
Documents with respect to each Mortgage Loan required to be delivered under
the
Agreement.
The
Seller hereby acknowledges its duties and obligations under the Agreement with
respect to the Mortgage Loans.
Capitalized
terms that are used herein but are not defined herein shall have the respective
meanings set forth in the Agreement.
AAMES
CAPITAL CORP.
By:
_________________________________________
Name:
_______________________________________
Title:
________________________________________
EXHIBIT
E
FORM
OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
[DATE
OF
ASSIGNMENT]
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT dated ___________________, among
_________________, (“Assignor”), _________________, (“Assignee”) and Aames
Capital Corp. (the “Seller”):
For
and
in consideration of the sum of one dollar ($1.00) and other valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. With
respect to the Mortgage Loans listed on Exhibit
A
hereto,
the Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under that certain
Master Bulk Sale and Interim Servicing Agreement (the “Master Bulk Sale and
Interim Servicing Agreement”), dated as of November 1, 2005, and the Memorandum
of Sale dated [INSERT DATE] (together with the Master Bulk Sale and Interim
Servicing Agreement, the “Master Sale Agreement”), each by and between Ocwen
Mortgage Asset Trust I (the “Purchaser”) and the Seller, and the Mortgage Loans
delivered thereunder by the Seller to the Assignor.
2. The
Assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b. The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to the
Master Sale Agreement or the Mortgage Loans;
c. The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Master Sale Agreement or the Mortgage
Loans. The Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of, or assignments of rights
or obligations under, the Master Sale Agreement or the Mortgage Loans;
and
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans 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 which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the “Securities Act”) or which would
render the disposition of the Mortgage Loans a violation of Section 5 of the
Securities Act or require registration pursuant thereto.
3. That
Assignee warrants and represent to, and covenants with, the Assignor and the
Seller pursuant to Section 9.07 of the Master Sale Agreement that:
a. The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Master Sale Agreement and the Mortgage Loans, and from and
after the date hereof, the Assignee assumes for the benefit of each of the
Seller and the Assignor all of the Assignor’s obligations as purchaser
thereunder;
b. The
Assignee understands that the Mortgage Loans have not been registered under
the
Securities Act or the securities laws of any state;
c. The
purchase price being paid by the Assignee for the Mortgage Loans is in excess
of
$250,000.00 and will be paid by cash remittance of the full purchase price
within sixty (60) calendar days of the sale;
d. The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person. In this connection, neither the Assignee nor
any
person authorized to act therefor has offered to sell the Mortgage Loans by
means of any general advertising or general solicitation within the meaning
of
Rule 502(c) Regulation D promulgated under the Securities Act;
e. The
Assignee considers itself a substantial sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
f. The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Seller;
g. Neither
the Assignee nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or
accepted a transfer, pledge or other disposition of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any interest in
the
Mortgage Loans or any other similar security with, any person in any manner
which would constitute a distribution of the Mortgage Loans under the Securities
Act or which would render the disposition of the Mortgage Loans a violation
of
Section 5 of the Securities Act or require registration pursuant thereto, nor
will it act, nor has it authorized or will it authorize any person to act,
in
such manner with respect to the Mortgage Loans; and
h. Either
(1) the Assignee is not an employee benefit plan (“Plan”) within the meaning of
section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) or a plan (“Plan”) within the meaning of section 4975(e)(1) of the
Internal Revenue Code of 1986 (“Code”), and the Assignee is not directly or
indirectly purchasing the Mortgage Loans on behalf of, investment manager of,
as
named fiduciary of, as trustee of, or with assets of, a Plan; or (2) the
Assignee’s purchase of the Mortgage Loans will not result in a prohibited
transaction under section 406 of ERISA or section 4975 of the Code.
i. The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and the Master Sale Agreement is:
[NAME
AND
ADDRESS OF ASSIGNEE]
Attention:
Telephone:
Fax:
The
Assignee’s wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Master Sale Agreement
is:
For
the
account of [NAME OF ASSIGNEE]
A/C#:
ABA#:
Attn:
Taxpayer
ID#:
4. Accuracy
of the Agreements.
The
Seller and the Assignor represent and warrant to the Assignee that (i) attached
hereto as Exhibit
B
are
true, accurate and complete copies of the Master Sale Agreement and all
amendments and modifications, if any, thereto and (ii) the Master Sale Agreement
has not been amended or modified in any respect, except as set forth in this
Agreement.
5. Recognition
of Assignee.
From
and
after the date hereof, the Seller shall note the transfer of the Mortgage Loans
to the Assignee in its books and records and the Seller shall recognize the
Assignee as the owner of the Mortgage Loans. It is the intention of the
Assignor, the Seller and the Assignee that the Master Sale Agreement shall
be
binding upon and inure to the benefit of the Seller and the Assignee and their
respective successors and assigns.
[Signatures
Follow]
IN
WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition Agreement be executed by their duly authorized officers as of the
date first above written.
|
[NAME
OF ASSIGNOR]
|
[NAME
OF ASSIGNEE]
|
|
Assignor
|
Assignee
|
|
By:
____________________________________
|
By:
|
|
Name:
__________________________________
|
Name:
|
|
Its:
____________________________________
|
Its:
|
AAMES
CAPITAL CORP.
Seller
By:
Name:
Its:
EXHIBIT
F
UNDERWRITING
GUIDELINES
[Attached
hereto]
EXHIBIT
G
FORM
OF
OPINION OF COUNSEL
November
17, 2005
Ocwen
Mortgage Asset Trust I
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Centrepark
West, Suite ▇▇▇
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Re: Aames
Capital Corp.
Ladies
and Gentlemen:
I
am
special counsel for Aames Capital Corp., a [_______] corporation (the “Seller”),
with respect to certain matters in connection with the sale of Mortgage Loans
pursuant to that certain Master Bulk Sale and Interim Servicing Agreement by
and
between the Seller and Ocwen Mortgage Asset Trust I, dated as of November 1,
2005 (the “Agreement”). Capitalized terms not otherwise defined herein have the
meanings given them in the Agreement.
In
rendering the opinions set forth below, I have examined and relied upon
originals or copies, certified or otherwise identified to my satisfaction,
of
the certificate of incorporation and by-laws of the Seller, the Agreement and
such corporate records, agreements or other instruments of the Seller, and
such
certificates, records and other documents, agreements and instruments, as I
have
deemed necessary and proper as the basis for my opinions. In connection with
such examination, I have assumed the genuineness of all signatures, the
authenticity of all documents, agreements and instruments submitted to me as
originals, the conformity to original documents, agreements and instruments
of
all documents, agreements and instruments submitted to me as copies or
specimens, the authenticity of the originals of such documents, agreements
and
instruments submitted to us as copies or specimens, the conformity to executed
original documents of all documents submitted to me in draft and the accuracy
of
the matters set forth in the documents we reviewed. I have also assumed that
all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto. As to any facts material to such opinions
that
I did not independently establish or verify, I have relied upon statements
and
representations of officers and other representatives of the Seller as I have
deemed necessary and proper as the basis for my opinions, including, among
other
things, the representations and warranties in the Agreement.
Based
upon the foregoing, I am of the opinion that:
1. The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the state of [__________].
2. The
Seller has the power to engage in the transactions contemplated by the Agreement
and all requisite power, authority and legal right to execute and deliver the
Agreement, and to perform and observe the terms and conditions of the
Agreement.
3. Each
person who, as an officer of the Seller, signed (a) the Agreement, and (b)
any
other document delivered prior hereto or on the date hereof in connection with
the sale, servicing and securitization of the Mortgage Loans was, at the
respective times of such signing and delivery, and is, as of the date hereof,
duly elected or appointed, qualified and acting as such officer, and the
signatures of such persons appearing on such documents are their genuine
signatures.
4. The
Agreement has been duly authorized, executed and delivered by the Seller and
is
a legal, valid and binding agreement, enforceable in accordance with its terms,
subject to bankruptcy laws and other similar laws of general application
affecting rights of creditors and subject to the application of the rules of
equity, including those respecting the availability of specific
performance.
5. The
Seller has been duly authorized to allow its officers to execute any and all
documents by original signature in order to complete the transactions
contemplated by the Agreement, and by original or facsimile signature in order
to execute the endorsements of the Mortgage Notes and the Assignments of
Mortgages, and the original or facsimile signature of the officer of the Seller
executing the endorsements of the Mortgage Notes and the Assignments of
Mortgages represents the legal and valid signature of said officer of the
Seller.
6. Either
(i) no consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by the
Seller of or compliance by the Seller with the Agreement, or the consummation
of
the transactions contemplated by the Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the Seller.
7. Neither
the consummation of the transactions contemplated by, nor the fulfillment of
the
terms of the Agreement, will conflict with or result in a breach of or
constitute a default under the charter or by-laws of the Seller, the terms
of
any indenture or other agreement or instrument to which the Seller is a party
or
by which it is bound or to which it is subject, or violate any statute or order,
rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Seller is subject or by which it
is
bound.
8. There
is
no action, suit, proceeding or investigation pending or, to the best of my
knowledge, threatened against the Seller which, in my opinion, either in any
one
instance or in the aggregate, would likely result in any material adverse change
in the business, operations, financial condition, properties or assets of the
Seller or in any material impairment of the right or ability of the Seller
to
carry on its business substantially as now conducted or in any material
liability on the part of the Seller or which would draw into question the
validity of the Agreement, or of any action taken or to be taken in connection
with the transactions contemplated thereby, or which would be likely to impair
materially the ability of the Seller to perform under the terms of the
Agreement.
9. The
sale
of each Mortgage Note and Mortgage as and in the manner contemplated by the
Agreement is sufficient fully to transfer all right, title and interest of
the
Seller thereto as noteholder and mortgagee, apart from the rights to service
the
Mortgage Loans pursuant to the Agreement.
10. The
form
of endorsement that is to be used with respect to the Mortgage Loans is legally
valid and sufficient to duly endorse the Mortgage Notes to the
Purchaser.
The
Opinions expressed herein are limited to matters of federal and _______ law
and
do not purport to cover any matters as to which laws of any other jurisdiction
are applicable. Except as expressly provided herein, this opinion is being
furnished to the addressees hereof solely for their benefit in connection with
the transactions contemplated in the Agreement, and it is not to be used,
circulated, quoted or otherwise referred to for any purpose without my express
written consent.
Sincerely,
By:____________________________
[Name
of
Counsel]
Its: [Special
Counsel]
EXHIBIT
H
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SELLER
The
Seller hereby represents, warrants and covenants that, as of the related Closing
Date, or as of such date specifically provided herein:
(a) Due
Organization and Authority:
The
Seller is duly organized, validly existing and in good standing under the laws
of the jurisdiction and has all licenses necessary to carry on its business
as
now being conducted and is licensed, qualified and in good standing in each
state where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type conducted
by
the Seller, and in any event the Seller is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the related
Mortgage Loan and the servicing of such Mortgage Loan in accordance with the
terms of this Agreement; the Seller has the full corporate power and authority
to execute and deliver this Agreement and to perform in accordance herewith;
the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Seller, subject to bankruptcy, insolvency, moratorium and
other principles of equity affecting the rights of creditors generally, whether
considered in a proceeding at law or in equity; and all requisite corporate
action has been taken by the Seller to make this Agreement valid and binding
upon the Seller in accordance with its terms;
(b) Ordinary
Course of Business:
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, who is in the business of
originating, acquiring, selling and servicing mortgage loans, and the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller
pursuant to this Agreement are not subject to the bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction;
(c) No
Conflicts:
Neither
the execution and delivery of this Agreement, the acquisition of the Mortgage
Loans by the Seller, the sale of the Mortgage Loans to the Purchaser or the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement will conflict with or result in a breach
of any of the terms or provisions of the organizational documents of the Seller
or any agreement or instrument to which the Seller is now a party or by which
it
is bound, or constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Seller or its property is
subject, or impair the ability of the Purchaser to realize on the Mortgage
Loans, or impair the value of the Mortgage Loans;
(d) Approvals:
The
Seller is a HUD approved mortgagee pursuant to Section 203 of the National
Housing Act, and no event has occurred, including but not limited to a change
in
insurance coverage, which would make the Seller unable to comply with HUD
eligibility requirements or which would require notification to
HUD;
(e) Fair
Consideration:
The
consideration received by the Seller upon the sale of the Mortgage Loans under
this Agreement shall constitute fair consideration and reasonably equivalent
value for the Mortgage Loans;
(f) Ability
to Perform; Solvency:
The
Seller does not believe, nor does it have any reason or cause to believe, that
it cannot perform each and every covenant contained in this Agreement. The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken to hinder,
delay or defraud any of the Seller’s creditors;
(g) No
Litigation Pending:
Except
as disclosed by Aames Investment Corporation in its public filings with the
Commission, there is no action, suit, proceeding or investigation pending or
to
its knowledge threatened against the Seller which, either in any one instance
or
in the aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be contemplated
herein, or which would be likely to impair materially the ability of the Seller
to perform under the terms of this Agreement;
(h) No
Consent Required:
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Seller
of,
or compliance by the Seller with, this Agreement or the sale of the Mortgage
Loans as evidenced by the consummation of the transactions contemplated by
this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(i) No
Untrue Information:
None of
this Agreement, the information set forth in the Mortgage Loan Schedule attached
to the related Memorandum of Sale and the information contained in the related
electronic data file delivered to the Purchaser by the Seller, nor any
statement, report or other document furnished or to be furnished by or on behalf
of the Seller pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of material fact or omits
to
state a material fact necessary to make the statements contained therein not
misleading;
(j) Sale
Treatment:
The
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for accounting and tax
purposes;
(k) No
Material Change:
There
has been no material adverse change in the business, operations, financial
condition or assets of the Seller since the date of the Seller’s most recent
financial statements;
(l) No
Brokers’ Fees:
The
Seller has not dealt with any broker, investment banker, agent or other Person
that may be entitled to any commission or compensation in the connection with
the sale of the Mortgage Loans;
(m) Anti-Money
Laundering Law Compliance:
The
Seller has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); the Seller has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection with
the origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the legitimacy of the applicable Mortgagor
and
the origin of the assets used by the said Mortgagor to purchase the property
in
question, and maintains, and will maintain, sufficient information to identify
the applicable Mortgagor for purposes of the Anti-Money Laundering
Laws;
(n) Securities
Law Compliance:
Neither
the Seller nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of any Mortgage Loans, any interest
in
any Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to any Mortgage Loans, any interest in any Mortgage
Loans 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 which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 or which would render the disposition
of
any Mortgage Loans a violation of Section 5 of the Securities Act of 1933 Act
or
require registration pursuant thereto, nor will it act, nor has it authorized
or
will it authorize any person to act, in such manner with respect to the Mortgage
Loans; and
(o) Financial
Statements:
The
Seller has delivered to the Purchaser financial statements as requested by
the
Purchaser. All such financial statements fairly present the pertinent results
of
operations and changes in financial position for each of such periods and the
financial position at the end of each such period of the Seller and its
subsidiaries and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved.
There has been no change in the business, operations, financial condition,
properties or assets of the Seller since the date of the Seller’s financial
statements that would have a material adverse effect on its ability to perform
its obligations under this Agreement.
EXHIBIT
I
REPRESENTATIONS,
WARRANTIES AND COVENANTS REGARDING
INDIVIDUAL
MORTGAGE LOANS
The
Seller hereby represents, warrants, and covenants with respect to the Mortgage
Loans that as of the related Closing Date for such Mortgage Loan:
1. Representations,
Warranties, and Covenants Regarding Individual Mortgage Loans:
(a) Mortgage
Loans as Described:
The
information set forth in the Mortgage Loan Schedule annexed to the related
Memorandum of Sale and the information contained on the related electronic
data
file delivered to the Purchaser is complete, true and correct;
(b) Payments
Current:
Other
than the borrower being up to 29 days delinquent, all payments required to
be
made prior to the related Cut-off Date for the Mortgage Loan under the terms
of
the Mortgage Note have been made and credited. No payment under any Mortgage
Loan has been thirty (30) calendar days or more delinquent since the origination
of such Mortgage Loan; other than the borrower being up to 29 days delinquent,
there are no material defaults under the terms of the Mortgage Loan; and neither
the Seller nor the servicer advanced funds, or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the Mortgaged
Property subject to the Mortgage, directly or indirectly for the payment of
any
amount required by the Mortgage Note;
(c) No
Outstanding Charges:
All
taxes, governmental assessments, insurance premiums, leasehold payments, ground
rents, water, sewer and municipal charges, which previously became due and
owing
have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not advanced funds,
or
induced, or solicited directly or indirectly, the payment of any amount required
under the Mortgage Loan, except for (i) payments in the nature of escrow
payments and (ii) 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 one month the Due Date of the first installment of principal
and interest;
(d) Original
Terms Unmodified:
The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect, except by written instruments which have been
recorded, if necessary, to protect the interests of the Purchaser and maintain
the lien priority of the Mortgage and which has been delivered to the Custodian.
The substance of any such waiver, alteration or modification has been approved
by the title insurer, to the extent required by the policy, and its terms are
reflected on the Mortgage Loan Schedule and related electronic data file. No
instrument of waiver, alteration or modification has been executed, and no
Mortgagor has been released, in whole or in part, except in connection with
an
assumption agreement approved by the title insurer, to the extent required
by
the policy and which assumption agreement is part of the Mortgage File delivered
to the Custodian and the terms of which are reflected on the related Mortgage
Loan Schedule and related electronic data file. Neither the Mortgage Note nor
the Mortgage have any marks or notations indicating that they are currently
pledged, assigned or otherwise conveyed to any person other than the
Purchaser;
(e) No
Defenses:
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including without limitation the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, render either the Mortgage
Note or the Mortgage unenforceable, in whole or in part, or subject to any
right
of rescission, set-off, counterclaim or defense, including without limitation
the defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto, and no Mortgagor was a debtor
in
any state or federal bankruptcy or insolvency proceeding at or subsequent to
the
time the Mortgage Loan was originated or as of the date hereof;
(f) No
Satisfaction of Mortgage:
The
Mortgage has not been satisfied, canceled, subordinated (except with respect
to
the subordination of any Second Lien Mortgage Loan to the related first lien
mortgage loans) or rescinded, in whole or in part, and the Mortgaged Property
has not been released from the lien of the Mortgage, in whole or in part, nor
has any instrument been executed that would effect any such satisfaction,
release, cancellation, subordination (except with respect to the subordination
of any Second Lien Mortgage Loan to the related First Lien) or rescission.
The
Seller has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(g) Validity
of Mortgage Documents:
The
Mortgage Note, the Mortgage and, in the case of a Cooperative Loan, the related
Security Agreement, and related documents are original (except for such
documents the originals of which have been delivered to the Custodian, and
with
respect to each Mortgage Loan for which a lost note affidavit has been delivered
to the Custodian in place of the original Mortgage Note) and genuine, and each
is the legal, valid and binding obligation of the Mortgagor enforceable in
accordance with its terms, subject to bankruptcy, insolvency, moratorium and
other laws of general application affecting the rights of creditors and by
general equitable principles and Seller has taken all action necessary to
transfer such rights of enforceability to the Purchaser. All parties to the
Mortgage Note, the Mortgage and, in the case of a Cooperative Loan, the related
Security Agreement, had legal capacity to enter into the Mortgage Loan and
to
execute and deliver the Mortgage Note and the Mortgage, and the Mortgage Note
and the Mortgage have been duly and properly executed by such
parties;
(h) Note
as “Instrument”:
Each
Mortgage Note is comprised of one original promissory note and each such
promissory note constitutes an “instrument” for purposes of Section 9-102(a)(65)
of the UCC;
(i) No
Fraud:
No
fraud, error, omission, misrepresentation or negligence with respect to a
Mortgage Loan has taken place on the part of the Seller or the Mortgagor, any
appraiser, any builder or any developer, any servicer or any other party
involved in the solicitation or origination of the Mortgage Loan or in the
application for any insurance in relation to such Mortgage Loan or in connection
with the sale of such Mortgage Loan to the Purchaser;
(j) Compliance
with Applicable Laws:
All
requirements of any applicable federal, state or local law including, without
limitation, all applicable predatory and abusive lending, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection
(including Uniform Consumer Credit Code laws), fair credit reporting, unfair
collection practices, equal credit opportunity or fair housing and disclosure
laws applicable to the solicitation, origination, servicing and collection
of
the Mortgage Loan have been complied with, the Mortgagor received all disclosure
materials required by applicable law with respect to the making of mortgage
loans of the same type as the Mortgage Loan and, if the Mortgage Loan is a
refinanced Mortgage Loan, rescission materials required by applicable laws,
and
the Seller shall maintain in its possession, available for the Purchaser’s
inspection, and shall deliver to the Purchaser upon demand, evidence of
compliance with all such requirements. 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;
(k) Location
and Type of Mortgaged Property:
The
Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule and consists of a contiguous parcel of real property with a detached
single family residence erected thereon, or a two- to four-family dwelling,
or
an individual condominium unit in a condominium project or an individual unit
in
a planned unit development, or a townhouse or a de minimus planned unit
development; provided, however, that none of the Mortgaged Properties are
Cooperative Properties, manufactured homes, log homes, mobile homes or geodesic
domes. As of the respective appraisal date for each Mortgaged Property, the
Mortgaged Property was not being used primarily for commercial or mixed-use
purposes and, to the Seller’s knowledge, since the date of such Appraisal, the
Mortgaged Property has not been used primarily for commercial purposes. No
Mortgage Loan finances builder inventory;
(l) Valid
First or Second Lien:
The
Mortgage is a valid, subsisting, enforceable and perfected first or, in the
case
of the Second Lien Mortgage Loans, second lien on the Mortgaged Property,
including all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing securing the Mortgage Note’s
original principal balance. The lien of the Mortgage is free and clear of all
adverse claims, liens and encumbrances having priority over the first lien
of
the Mortgage and is subject only to:
(i) the
lien
of current real property taxes and assessments not yet due and
payable;
(ii) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the Originator of the Mortgage Loan and either
(1)
referred to or otherwise considered in the Appraisal made for the Originator
of
the Mortgage Loan or (2) which do not adversely affect the Appraised Value
of
the Mortgaged Property set forth in such Appraisal;
(iii) 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 or the use, enjoyment, value or
marketability of the related Mortgaged Property; and
(iv) the
First
Lien on the related Mortgaged Property, in the case of Second Lien Mortgage
Loans;
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable (A) first lien and first priority security interest
with respect to each first lien Mortgage Loan or (B) second lien and second
priority security interest with respect to each Second Lien Mortgage Loan,
in
either case, on the property described therein and the Seller has full right
to
sell and assign the same to the Purchaser. Except as indicated on the related
Mortgage Loan Schedule with respect to first lien Mortgage Loans that are
subject to a Second Lien Mortgage Loan, the Mortgaged Property was not, as
of
the date of origination of the Mortgage Loan, subject to a mortgage, deed of
trust, deed to secure debt or other security instrument creating a lien
subordinate to the lien of the Mortgage. With respect to any Cooperative Loan,
the Security Agreement is a valid, subsisting and enforceable first priority
security interest on the related Cooperative Shares securing the Mortgage Note,
subject only to (a) liens of the related residential Cooperative Corporation
for
unpaid assessments representing the Mortgagor’s pro rata share of the related
residential Cooperative Corporation’s payments for its blanket mortgage, current
and future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security interest intended to be provided by such
Security Agreement;
(m) Full
Disbursement of Proceeds:
The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor, and there is no requirement for future advances thereunder and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied with.
Any and all requirements as to completion of any on-site or off-site
improvements and any and all requirements as to disbursements of escrow funds
for such improvements have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(n) Ownership:
The
Seller is a sole legal, beneficial and equitable owner of the Mortgage Note
and
the Mortgage. The Seller has full right and authority under all governmental
and
regulatory bodies having jurisdiction over the Seller, subject to no interest
or
participation of, or agreement with, any party, to transfer and sell the
Mortgage Loan to the Purchaser pursuant to this Agreement free and clear of
any
encumbrance or right of others, equity, lien, pledge, charge, mortgage, claim,
participation interest or security interest of any nature (collectively, a
“Lien”); and immediately upon the transfers and assignments herein contemplated,
the Seller shall have transferred and sold all of its right, title and interest
in and to each Mortgage Loan and the Purchaser will hold good, marketable and
indefeasible title to, and be the owner of, each Mortgage Loan subject to no
Lien;
(o) Origination/Doing
Business:
The
Mortgage Loan was originated by a mortgage company, savings and loan
association, a savings bank, a commercial bank, a credit union, an insurance
company, or similar institution that is supervised and examined by a federal
or
state authority or by a mortgagee approved by the Secretary of Housing and
Urban
Development pursuant to Sections 203 and 211 of the National Housing Act. All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (2) either (A) organized under the laws of such state,
(B) qualified to do business in such state, (C) federal savings and loan
associations or national banks having principal offices in such state, or (D)
not doing business in such state;
(p) LTV:
No
Mortgage Loan has an LTV at origination in excess of 100%;
(q) Title
Insurance:
The
Mortgage Loan is covered by an ALTA lender’s title insurance policy (which in
the case of an Adjustable Rate Mortgage Loan has an adjustable rate mortgage
endorsement in the form of ALTA 6.0 or 6.1 or equivalent) generally acceptable
in secondary market transactions, issued by a title insurer generally acceptable
in secondary market transactions and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the Seller,
its
successors and assigns, as to the first (or where applicable, second) priority
lien of the Mortgage in the original principal amount of the Mortgage Loan,
subject only to the exceptions contained in clauses (i), (ii) and (iii), and
with respect to each Second Lien Mortgage Loan, clause (iv), of Paragraph (l)
of
this Exhibit
K,
and
with respect to Adjustable Rate Mortgage Loans against any loss by reason of
the
invalidity or unenforceability of the lien resulting from the provisions of
the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Additionally, such lender’s title insurance policy affirmatively
insures ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. Where required by state law or regulation,
the
Mortgagor has been given the opportunity to choose the carrier of such lender’s
title insurance policy. The Seller, its successors and assigns, are the sole
insureds of such lender’s title insurance policy, and such lender’s title
insurance policy is valid and remains in full force and effect and will be
in
full force and effect upon the consummation of the purchase of the Mortgage
Loans as contemplated by this Agreement. No claims have been made under such
lender’s title insurance policy, and no prior holder of the Mortgage, including
the Seller, has done, by act or omission, anything which would impair the
coverage of such lender’s title insurance policy. In connection with the
issuance of such lender’s title insurance policy, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will
be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(r) No
Defaults:
Other
than the borrower being up to 29 days delinquent, there is no default, breach,
violation or event of acceleration existing under the Mortgage or the Mortgage
Note and no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event permitting acceleration, and neither the Seller nor its
predecessors have waived any default, breach, violation or event permitting
acceleration. With respect to each Second Lien Mortgage Loan, (i) the prior
mortgage is in full force and effect, (ii) there is no default, breach,
violation or event of acceleration existing under the prior mortgage or the
related mortgage note, (iii) other than the borrower being up to 29 days
delinquent, no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and (iv) either (A) the First
Lien contains a provision that allows or (B) applicable law requires, the
mortgagee under the Second Lien Mortgage Loan to receive notice of, and affords
such mortgagee an opportunity to cure, any default by payment in full or
otherwise under the prior mortgage;
(s) No
Mechanics’ Liens:
As of
the date of origination of such Mortgage Loan, and to the Seller’s knowledge, as
of the Closing Date, there are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding
that
under the law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to, or equal or coordinate with, the
lien of the related Mortgage;
(t) Location
of Improvements; No Encroachments:
Except
as insured against by the title insurance policy referenced in Paragraph (r)
above, all improvements which were considered in determining the Appraised
Value
of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of the Mortgaged Property (and wholly within the project
with
respect to a condominium unit and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part
of
the Mortgaged Property is in violation of any applicable zoning law or
regulation. To the best of the Seller’s knowledge and with respect to each
Mortgage Loan that is covered by a Primary Insurance Policy, the improvement(s)
located on or being part of the related Mortgaged Property were constructed
in
accordance with the specifications set forth in the original construction
plans;
(u) Payment
Terms:
Payments on each Mortgage Loan commenced no more than sixty (60) calendar days
after the funds were disbursed to the Mortgagor in connection with the Mortgage
Loan. Except as otherwise set forth on the related Mortgage Loan Schedule,
the
Mortgage Loans have an original term to maturity of not more than thirty (30)
years, with interest payable in arrears on the date specified on the related
Mortgage Loan Schedule. As to each Adjustable Rate Mortgage Loan on each
applicable Adjustment Date, the Mortgage Interest Rate will be adjusted to
equal
the sum of the Index plus the applicable Gross Margin, rounded up or down to
the
nearest multiple of 0.125% indicated by the Mortgage Note; provided that the
Mortgage Interest Rate will not increase or decrease by more than the Periodic
Interest Rate Cap on any Adjustment Date, and will in no event exceed the
maximum Mortgage Interest Rate or be lower than the minimum Mortgage Interest
Rate listed on the Mortgage Loan Schedule for such Mortgage Loan. Except with
respect to Option ARM Mortgage Loans and Balloon Mortgage Loans which are
Adjustable Rate Mortgage Loans, as to each Adjustable Rate Mortgage Loan that
is
not an Interest-Only Mortgage Loan, each Mortgage Note requires a monthly
payment which is sufficient, during the period prior to the first adjustment
to
the Mortgage Interest Rate, to fully amortize the outstanding principal balance
as of the first day of such period over the then remaining term of such Mortgage
Note and to pay interest at the related Mortgage Interest Rate. Except with
respect to Balloon Mortgage Loans which are Adjustable Rate Mortgage Loans,
as
to each Adjustable Rate Mortgage Loan, if the related Mortgage Interest Rate
changes on an Adjustment Date (with respect to Interest-Only Mortgage Loans,
following the related Interest-Only Adjustment Date), the then outstanding
principal balance will be reamortized over the remaining life of such Mortgage
Loan. Except as otherwise set forth on the related Mortgage Loan Schedule,
no
Interest-Only Mortgage Loan has an interest only period in excess of five (5)
years. Except with respect to Option ARM Mortgage Loans, no Mortgage Loan
contains terms or provisions which would result in Negative Amortization. No
Option ARM Mortgage Loan has an LTV at in excess of 115% (or 110% with respect
to Option ARM Mortgage Loans with respect to which the related Mortgaged
Property is located in the State of New York);
(v) Balloon
Payments, Graduated Payments or Contingent Interests:
With
respect to any Mortgage Loan which is identified on the Mortgage Loan Schedule
as a Balloon Mortgage Loan, the Mortgage Note is payable in Monthly Payments
based on a fifteen (15), thirty (30) or forty (40) year amortization schedule,
as set forth in the related Mortgage Note, with a final Monthly Payment
substantially greater than the preceding Monthly Payment which is sufficient
to
amortize the remaining principal balance of the Balloon Mortgage Loan. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest
feature;
(w) Customary
Provisions:
The
Mortgage Note has a stated maturity. The Mortgage and related Mortgage Note
contain customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby, including,
(i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale,
and (ii) otherwise by judicial foreclosure. There is no homestead or other
exemption (other than under the Servicemembers Civil Relief Act) available
to a
Mortgagor which would interfere with the right to sell the Mortgaged Property
at
a trustee’s sale or the right to foreclose the Mortgage;
(x) Occupancy
of the Mortgaged Property:
As of
the date of origination the Mortgaged Property was lawfully occupied under
applicable law and the Mortgaged Property is lawfully occupied as of the Closing
Date. All licenses, inspections and certificates required to be made or issued
with respect to all occupied portions of the Mortgage Property 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. The Seller has not received any notice from a
governmental authority that the Mortgaged Property is in material noncompliance
with such laws or regulations, is being used, operated or occupied lawfully
and
has failed to have or obtain such inspection, licenses or certificates, as
the
case may be. The Seller has not received notice of any violation or failure
to
confirm with any such law, ordinance, regulation, standard, license or
certificate. Except as otherwise set forth in the Mortgage Loan Schedule, the
Mortgagor represented at the time of origination of the Mortgage Loan that
the
Mortgagor would occupy the Mortgaged Property as the Mortgagor’s primary
residence;
(y) No
Additional Collateral:
The
Mortgage Note is not and has not been secured by any collateral, pledged account
or other security except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred
to in
Paragraph (l) above;
(z) Deeds
of Trust:
In the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Mortgagee to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(aa) Transfer
of Mortgage Loans:
The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the related Mortgaged Property
is
located;
(bb) Mortgaged
Property Undamaged:
Except
as described in the Appraisal in the Mortgage File, the Mortgaged Property
is in
good repair and undamaged by waste, fire, earthquake or earth movement,
windstorm, hurricane, flood, tornado, mold or other casualty 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;
(cc) Customary
Servicing and Collection Practices; Escrow Deposits:
The
origination practices used by the Seller and the collection and servicing
practices used by the Servicer with respect to each Mortgage Loan have been
in
all respects legal, proper, prudent and customary in the subprime mortgage
origination and servicing industry. The Seller has reported the Mortgagor credit
files, if any, to the three credit repositories in a timely manner. With respect
to escrow deposits and Escrow Payments, all such payments are in the possession
of the Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law.
No
escrow deposits or Escrow Payments or other charges or payments have been
capitalized under the Mortgage Note;
(dd) No
Condemnation:
There
have not been any condemnation proceedings with respect to the Mortgaged
Property, there is no proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property nor is such a proceeding
currently occurring or scheduled to commence at a later date;
(ee) The
Appraisal:
The
Mortgage File contains an Appraisal of the related Mortgaged Property which
(a)
with respect to First Lien Mortgage Loans, is on appraisal form 1004 or form
2055 with an interior inspection, or (b) with respect to Seconid Lien Mortgage
Loans, is on appraisal form 704, 1004, 2065 or 2055, in each case signed prior
to the approval of the Mortgage Loan application by a Qualified Appraiser and
the Appraisal and appraiser both satisfy the requirements of Title XI of the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated, to the extent required in the Underwriting Guidelines
with
respect to mortgage loans of the same type as the Mortgage Loan. If an automated
valuation model (“AVM”) was used in lieu of a full Appraisal in accordance with
the Underwriting Guidelines, such AVM was prepared by a provider acceptable
under the Underwriting Guidelines;
(ff) Hazard
Insurance:
All
buildings or other customarily insured improvements on the Mortgaged Property
are insured by an insurer acceptable to prudent mortgage lending institutions
against loss by fire and such hazards as are covered under a standard extended
coverage endorsement and such other hazards as are provided for pursuant to
insurance policies conforming to Accepted Practices, in an amount which is
not
less than the lesser of 100% of the insurable value of the Mortgaged Property
or
the outstanding principal balance of the Mortgage Loan (plus, with respect
to
any Second Lien Mortgage Loan, the outstanding principal balance of the related
first lien mortgage loan, if any), but in no event less than the amount
necessary to avoid the operation of any co-insurance provisions with respect
to
the Mortgaged Property. If the Mortgaged Property is a condominium unit, it
may
be included under the coverage afforded by a blanket policy for the project.
If
the improvements on the Mortgaged Property are in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards, then 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. Such flood insurance policy is 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
related Mortgaged Property and (C) the maximum amount of insurance which was
available under the Flood Disaster Protection Act of 1973, as amended. All
individual insurance policies contain a standard mortgagee clause naming the
Seller and its successors and assigns as mortgagee, and all premiums thereon
have been paid and such policies have not been reduced, terminated or cancelled
without thirty (30) calendar days’ written notice to the mortgagee. No such
notice has been received by the Seller. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor’s cost and expense,
and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage
to obtain and maintain such insurance at such Mortgagor’s cost and expense, and
to seek reimbursement therefor from the Mortgagor, the Mortgagor has been given
an opportunity to choose the carrier of the required hazard insurance, provided
the policy is not a “master” or “blanket” hazard insurance policy covering the
common facilities of a planned unit development. Each such insurance policy
is
the valid and binding obligation of the insurer, is in full force and effect,
and will be in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the purchase of the Mortgage Loans as contemplated
by
this Agreement. The Seller has not acted or failed to act so as to impair the
coverage of any such insurance policy or the validity, binding effect and
enforceability thereof;
(gg) No
Impairment of Insurance Coverage:
No
action, inaction, or event has occurred and no state of facts exists or has
existed that has resulted or will result in the exclusion from, denial of,
or
defense to coverage under any applicable hazard insurance policy or bankruptcy
bond, irrespective of the cause of such failure of coverage. In connection
with
the placement of any such insurance, no commission, fee, or other compensation
has been or will be received by the Seller or any designee of the Seller or
any
corporation or other entity which the Seller or any officer, director, or
employee had a financial interest at the time of placement of such
insurance;
(hh) Servicemembers
Civil Relief Act:
The
Mortgagor has not notified the Seller, and the Seller has no knowledge of any
relief requested by or allowed to the Mortgagor under the Servicemembers Civil
Relief Act, as amended, or any similar state or local laws;
(ii) No
Construction Loans:
No
Mortgage Loan was made in connection with (i) the construction or rehabilitation
of a Mortgaged Property or (ii) facilitating the trade-in or exchange of a
Mortgaged Property other than a construction-to-permanent loan which has
converted to a permanent Mortgage Loan;
(jj) Underwriting:
Each
Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines;
(kk) Mortgage
Loan Documents:
The
Mortgage Note and the Mortgage and all other documents in the related Mortgage
File, are on ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac uniform instruments modified to reflect
subprime lending terms or are on forms generally acceptable to subprime mortgage
lenders;
(ll) No
Bankruptcy:
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated. Following the date
of
origination of the Mortgage Loan, the Mortgagor with respect to the Mortgage
Loan was not a debtor in any state or federal bankruptcy or insolvency
proceeding, and the Mortgaged Property has not been subject to any bankruptcy
or
foreclosure proceedings;
(mm) Delivery
of Mortgage Files:
The
Mortgage Loan Documents for the related Mortgage Loans have been delivered
to
the Custodian, subject to the delivery requirements of this Agreement. The
Seller is in possession of a complete Mortgage File for each Mortgage Loan,
except for such documents the originals of which have been delivered to the
Custodian, and all documents required to be included in the Mortgage File shall
be complete, executed as required and in compliance with applicable law. With
respect to each Mortgage Loan for which a lost note affidavit has been delivered
to the Custodian in place of the original Mortgage Note, the related Mortgage
Note is no longer in existence, and, if such Mortgage Loan is subsequently
in
default, the enforcement of such Mortgage Loan or of the related Mortgage by
or
on behalf of the Purchaser will not be affected by the absence of the original
Mortgage Note;
(nn) Interest
Calculation:
Interest on each Mortgage Loan is calculated on the basis of a three hundred
sixty (360) day year consisting of twelve (12) thirty (30) day months. No
Mortgage Loan provides for interest payable on a simple interest basis. No
Mortgage Loan provides for an increase in the related Mortgage Interest Rate
upon the occurrence of a default under the terms of the related Mortgage
Note;
(oo) No
Violation of Environmental Laws:
On the
date of origination of such Mortgage Loan, the Mortgaged Property was free
from
any and all toxic or hazardous substances and there existed no violation of
any
local, state or federal environmental law, rule or regulation. To Seller’s
knowledge, as of the Closing Date, the Mortgaged Property is free from any
and
all toxic or hazardous substances and there exists no violation of any local,
state or federal environmental law, rule or regulation. There is no pending
action or proceeding directly involving any Mortgaged Property of which the
Seller is aware in which compliance with any environmental law, rule or
regulation is an issue; and nothing further remains to be done to satisfy in
full all requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(pp) Conversion
to Fixed Interest Rate:
No
Adjustable Rate Mortgage Loan contains a provision permitting or requiring
conversion to a Fixed Rate Mortgage Loan;
(qq) The
Mortgagor:
The
Mortgagor is one or more natural persons and/or an Illinois land trust or a
“living trust” and such “living trust” is in compliance with ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac guidelines. In the event the Mortgagor is a trust, the trustee
of
such trust is a natural person and is a Mortgagor in his or her individual
capacity;
(rr) Texas
Mortgage Loans:
Each
Mortgage Loan originated in the state of Texas pursuant to Article XVI, Section
50(a)(6) of the Texas Constitution (a “Texas Refinance Loan”) has been
originated in compliance with the provisions of Article XVI, Section 50(a)(6)
of
the Texas Constitution, Texas Civil Statutes and the Texas Finance Code. With
respect to any Mortgage Loan which is a Texas Home Equity Loan, any and all
requirements of Section 50, Article XVI of the Texas Constitution applicable
to
Texas Home Equity Loans which were in effect at the time of the origination
of
the Mortgage Loan have been complied with. Specifically, without limiting the
generality of the foregoing, (i) all fees paid by the owner of the Mortgaged
Property or such owner’s spouse, to any person, that were necessary to
originate, evaluate, maintain, record, insure or service the Mortgage Loan
are
reflected in the closing statement for such Mortgage Loan; (ii) the Mortgage
Loan was closed only at the office of the mortgage lender, an attorney at law,
or a title company; (iii) the mortgagee has not been found by a federal
regulatory agency to have engaged in the practice of refusing to make loans
because the applicants for the loans reside or the property proposed to secure
the loans is located in a certain area; (iv)the owner of the Mortgaged Property
was not required to apply the proceeds of the Mortgage Loan to repay another
debt except debt secured by the Mortgaged Property or debt to a lender other
than the mortgagee; (v) the owner of the Mortgaged Property did not sign any
documents or instruments relating to the Loan in which blanks were left to
be
filled in; and (vi) if discussions between the mortgagee and the Mortgagor
were
conducted primarily in a language other than English, the mortgagee provided
to
the owner of the Mortgaged Property, prior to closing, a copy of the notice
required by Section 50(g), Article XVI of the Texas Constitution translated
into
the written language in which the discussions were conducted. All notices,
acknowledgments and disclosure statements required by Section 50, Article XVI
of
the Texas Constitution applicable to Texas Home Equity Loans are contained
in
the Mortgage File for each such Mortgage Loan.
(ss) Homeownership
and Equity Protection Act; No High Cost Loans:
No
Mortgage Loan is (a) covered by the Home Ownership and Equity Protection Act
of
1994 as amended (“HOEPA”), (b) a “high cost,” “threshold,” “covered,”
“predatory,” “abusive,” “high risk home” or similarly defined loan, including
refinance loans, under any other Applicable Law, including any predatory or
abusive lending laws (or a similarly classified loan using different terminology
under a law imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest rates, points
and/or fees); the Seller has implemented and conducted compliance procedures
to
determine if each Mortgage Loan is “high-cost” home loan under the Applicable
Laws and performed a review of the disclosure provided to the related Mortgagor
in accordance with such laws and the related Mortgage Note in order to determine
that such Mortgage Loan, if subject to any such law, does not violate any such
law or (c) a “High Cost Loan” or “Covered Loan,” as defined in the then current
Standard & Poor’s LEVELSâ
Version
5.6 Glossary Revised, Appendix E. Any breach of this representation shall be
deemed to materially and adversely affect the interests of the owner of the
Mortgage Loan and shall require a repurchase of the affected Mortgage
Loan;
(tt) Due
on
Sale:
The
Mortgage contains an enforceable provision, to the extent not prohibited by
applicable law as of the date of such Mortgage, for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event that
the Mortgaged Property is sold or transferred without the prior written consent
of the mortgagee thereunder;
(uu) Adjustments:
All of
the terms of the related Mortgage Note pertaining to interest adjustments,
payment adjustments and adjustments of the outstanding principal balance, if
any, are enforceable and such adjustments on such Mortgage Loan have been made
properly and in accordance with the provisions of such Mortgage
Loan;
(vv) Leaseholds:
If the
Mortgage Loan is secured by a leasehold estate: (A) the Mortgagor is the
owner of a valid and subsisting leasehold interest under such ground lease;
(B) such ground lease is in full force and effect, unmodified and not
supplemented by any writing or otherwise; (C) all rent, additional rent and
other charges reserved therein have been fully paid to the extent payable as
of
the related Closing Date; (D) the Mortgagor enjoys the quiet and peaceful
possession of the leasehold estate; (E) the Mortgagor is not in default
under any of the terms of such ground lease, and there are no circumstances
which, with the passage of time or the giving of notice, or both, would result
in a default under such ground lease; (F) the lessor under such ground
lease is not in default under any of the terms or provisions of such ground
lease on the part of the lessor to be observed or performed; (G) the lessor
under such ground lease has satisfied any repair or construction obligations
due
as of the related Closing Date pursuant to the terms of such ground lease;
(H) the execution, delivery and performance of the Mortgage do not require
the consent (other than those consents which have been obtained and are in
full
force and effect) under, and will not contravene any provision of or cause
a
default under, such ground lease; (I) the term of such lease does not
terminate earlier than five (5) years after the maturity date of the Mortgage
Note; (J) the ground lease is assignable or transferable; (K) the ground lease
does not provide for termination of the lease in the event of lessee’s default
without the mortgagee being entitled to receive written notice of, and a
reasonable opportunity to cure the default; (L) the ground lease permits the
mortgaging of the related Mortgaged Property; (M) the ground lease protects
the
mortgagee’s interests in the event of a property condemnation; and (N) the use
of leasehold estates for residential properties is a widely accepted practice
in
the jurisdiction in which the Mortgaged Property is located;
(ww) Compliance
with Anti-Money Laundering Laws:
The
Seller and the related originator have complied with all applicable and
anti-money laundering laws and regulations, including without limitation the
relevant provisions of the Bank Secrecy Act as amended by the USA Patriot Act
of
2001 and its implementing regulations (collectively, the “Anti-Money Laundering
Laws”); the Seller and the servicer have (1) developed internal policies,
procedures and controls reasonably designed to prevent any funds from being
used
for money laundering or the financing of terrorist activities; (2) designated
a
compliance officer, (3) implemented an ongoing employee training program and
(4)
developed an independent audit function to test the compliance program; and
Seller is in compliance with the implementing regulations promulgated and
administered by the U.S. Treasury Department’s Office of Foreign Assets Control
(“OFAC”) and has established an OFAC compliance program. No Mortgage Loan is
subject to nullification pursuant to Executive Order 13224 (the “Executive
Order”) or the regulations promulgated by the Office of Foreign Assets Control
of the United States Department of the Treasury (the “OFAC Regulations”) or in
violation of the Executive Order or the OFAC Regulations, and no Mortgagor
is
subject to the provisions of such Executive Order or the OFAC Regulations nor
listed as a “blocked person” for purposes of the OFAC Regulations;
(xx) Refinanced
Mortgage Loans:
No
Mortgage Loan is a refinanced subsidized mortgage loan that contain terms more
favorable to the related Mortgagor;
(yy) Prepayment
Premiums:
All
information on the Mortgage Loan Schedule and electronic data file delivered
to
the Purchaser regarding the Prepayment Premium is complete and accurate in
all
material respects and each Prepayment Premium is permissible and enforceable
in
accordance with its terms under applicable law. Where permitted by law,
Prepayment Premiums on the Mortgage Loans are applicable to prepayments
resulting from both refinancings and sales of the related Mortgaged Properties
and the terms of such Prepayment Premiums do not provide for a waiver or release
(i.e., “holidays”) during the term of the Prepayment Premium. No Mortgage Loan
provides for the payment of a Prepayment Premium beyond the three-year term
following the origination of the Mortgage Loan. With respect to any Mortgage
Loan that contains a provision permitting imposition of a Prepayment Premium:
(i) prior to the Mortgage Loan’s origination, the Mortgagor agreed to such
Prepayment Premium in exchange for a monetary benefit, including, but not
limited to, a rate or fee reduction, (ii) prior to the Mortgage Loan’s
origination, the Mortgagor was offered the choice of another mortgage product
that did not require payment of such a premium, (iii) the Prepayment Premium
is
disclosed to the Mortgagor in the loan documents pursuant to applicable state
and federal law, and (iv) notwithstanding any state or federal law to the
contrary, the Seller shall not impose such Prepayment Premium in any instance
when the mortgage debt is accelerated as the result of the Mortgagor’s default
in making the Monthly Payments;
(zz) Credit
Information:
As to
each consumer report (as defined in the Fair Credit Reporting Act, Public Law
91-508) or other credit information furnished by the Seller to the Purchaser,
the Seller has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage Loan. The Seller shall hold the Purchaser harmless from any and
all damages, losses, costs and expenses (including attorney’s fees) arising from
lawful disclosure of credit information in connection with the Purchaser’s
secondary marketing operations and the purchase and sale of Mortgage Loans
or
servicing rights thereto;
(aaa) No
Litigation Pending:
There
is no action, suit, proceeding or investigation pending, or to the Seller’s
knowledge threatened, that is related to the Mortgage Loan and likely to affect
materially and adversely the servicing of such Mortgage Loan;
(bbb) Credit
Scores:
Each
Mortgagor has a non-zero Credit Score and unless otherwise agreed by the
Purchaser, the Credit Score provided is not a NextGen Credit Score;
(ccc) No
Arbitration Provisions:
No
Mortgagor agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the related Mortgage Loan or the origination
thereof;
(ddd) Second
Lien Mortgage Loans:
With
respect to each Second Lien Mortgage Loan, where required or customary in the
jurisdiction in which the related Mortgaged Property is located, the original
lender has filed for record a request for notice of any action by the senior
lienholder under the related First Lien, and the original lender has notified
any senior lienholder in writing of the existence of the Second Lien Mortgage
Loan and requested notification of any action to be taken against the Mortgagor
by the senior lienholder. With respect to Second Lien Mortgage Loans, either
(i)
no consent for the Mortgage Loan is required by the holder of the related First
Lien or (ii) such consent has been obtained and is contained in the related
Mortgage File;
(eee) Down
Payment:
The
source of the down payment, if any, with respect to each Mortgage Loan has
been
fully verified by the Originator if required pursuant to the Underwriting
Guidelines;
(fff) No
Adverse Selection:
No
selection procedures were used by the Seller that identified the Mortgage Loans
as being less desirable or valuable than other comparable mortgage loans in
the
Seller’s portfolio;
(ggg) Purchase
Money Mortgage Loans:
With
respect to each purchase money Mortgage Loan, to the extent required by the
Underwriting Guidelines, the borrower’s assets were verified as part of the
origination process;
(hhh) Broker
Fees:
With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly disclosed and assessed to the Mortgagor and
no
claims will arise as to broker fees that are double charged and for which the
Mortgagor would be entitled to reimbursement;
(iii) Buydown
Loans:
The
Loan does not contain provisions pursuant to which Monthly Payments are paid
or
partially paid by any source other than the Mortgagor nor does it contain any
similar provisions currently in effect which may constitute a “buydown”
provision;
(jjj) Risk
Sharing Agreements.
No
Mortgage Loan is subject to any risk sharing agreement between the Originator
and any mortgage title insurance Seller;
(kkk) Cooperative
Loans.
With
respect to a Mortgage Loan that is a Cooperative Loan, the Cooperative Shares
that are pledged as security for the Mortgage Loan are held by a person as
a
tenant-stockholder (as defined in Section 216 of the Code) in a cooperative
housing corporation (as defined in Section 216 of the Code);
(lll) Mortgagor
Acknowledgement.
The
Mortgagor has received all disclosure materials required by applicable law
with
respect to the making of Adjustable Rate Mortgage Loans and the servicer
maintains acknowledgments of such disclosure materials in the Mortgage File;
and
(mmm) Capitalization
of Interest.
The
Mortgage Note does not by its terms provide for the capitalization or
forbearance of interest;
(nnn) Arbitration. No
Mortgagor agreed to submit to arbitration to resolve any dispute arising out
of
or relating in any way to the loan transaction and no Mortgage Loan is subject
to mandatory arbitration;
(ooo) Average
or Yield Spread Premium Payments.
The
Mortgagor has not mad or caused to be made any payment in the nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(ppp) Lender-Paid
Mortgage Insurance Policy.
No
Mortgage Loan is subject to a lender-paid mortgage insurance policy;
and
(qqq) Additional
Representations:
Each
additional representation and warranty contained in the Trade Confirmation
is
true and correct.
2. ▇▇▇▇▇▇
▇▇▇ Required Representations and Warranties:
(a) No
Mortgage Loan is subject to the requirements of the Home Ownership and Equity
Protection Act of 1994 (“HOEPA”);
(b) 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;
(c) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”). No Mortgage Loan subject to the Georgia Act
and secured by owner occupied real property or an owner occupied manufactured
home located in the State of Georgia was originated (or modified) on or after
October 1, 2002 through and including March 6, 2003;
(d) No
Mortgage Loan is a “High-Cost Home Loan” as defined in New York Banking Law
6-1;
(e) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003);
(f) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Kentucky high-cost
home loan statute effective June 24, 2003 (Ky. Rev. Stat. Section
360.100);
(g) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.);
(h) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. ▇▇▇. §§ 58-21A-1 et
seq.);
(i) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(j) No
Mortgage Loan is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. ▇▇▇. Laws Ch. 183C);
(k) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Indiana Home Loan
Practices Act, effective January 1, 2005 (Ind. Code ▇▇▇. Sections 24-9-1 through
24-9-9);
(l) No
Mortgage Loan is a balloon mortgage loan that has an original stated maturity
of
less than seven (7) years;
(m) No
Mortgage Loan that was originated on or after October 31, 2004, is subject
to
mandatory arbitration;
(n) No
borrower was encouraged or required to select a Mortgage Loan product offered
by
the Mortgage Loan’s originator which is a higher cost product designed for less
creditworthy borrowers, unless at the time of the Mortgage Loan’s origination,
such borrower did not qualify taking into account credit history and
debt-to-income ratios for a lower-cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s originator.
If, at the time of loan application, the borrower may have qualified for a
lower-cost credit product then offered by any mortgage lending affiliate of
the
Mortgage Loan’s originator, the Mortgage Loan’s originator referred the
borrower’s application to such affiliate for underwriting
consideration;
(o) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the borrower’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the borrower’s equity in the collateral as the
principal determining factor in approving such credit extension. Under such
underwriting methodology, at the time of origination (application/approval)
the
borrower had a reasonable ability to make timely payments on the Mortgage
Loan;
(p) With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a premium upon a prepayment prior to maturity: (i) prior to the loan’s
origination, the borrower agreed to such premium in exchange for a monetary
benefit, including but not limited to a rate or fee reduction, (ii) prior to
the
loan’s origination, the borrower was offered the option of obtaining a mortgage
loan that did not require payment of such a premium, (iii) the prepayment
premium is disclosed to the borrower in the loan documents pursuant to
applicable state and federal law, (iv) for loans originated on or after October
1, 2004, the duration of the prepayment period shall not exceed three (3) years
from the date of the note, unless the loan was modified to reduce the prepayment
period to no more than three (3) years from the date of the note and the
borrower was notified in writing of such reduction in prepayment period, and
(v) notwithstanding any state or federal law to the contrary, the Servicer
shall not impose such prepayment premium in any instance when the mortgage
debt
is accelerated as the result of the borrower’s default in making the loan
payments;
(q) No
borrower was required to purchase any single premium credit insurance policy
(e.g., life, mortgage, disability, accident, unemployment, or health insurance
product) or debt cancellation agreement as a condition of obtaining the
extension of credit;
(r) All
points and fees related to each Mortgage Loan were disclosed in writing to
the
borrower in accordance with applicable state and federal law and
regulation;
(s) All
fees
and charges (including finance charges) and whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
each Mortgage Loan has been disclosed in writing to the borrower in accordance
with applicable state and federal law and regulation; and
(t) With
respect to the Interim Servicing Period the Seller will transmit full-file
credit reporting data for each Mortgage Loan and that for each Mortgage Loan,
the Seller agrees it shall report one of the following statuses each month
as
follows: new origination, current, delinquent thirty (30), sixty (60), ninety
(90) days, etc.), foreclosed, or charged-off.
3. ▇▇▇▇▇▇▇
Mac Required Representations and Warranties:
(a) HOEPA:
No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act of
1994
(“HOEPA”);
(b) Mortgage
Premises Located in Georgia:
There
is no Mortgage Loan that was originated on or after October 1, 2002 and before
March 7, 2003, which is secured by property located in the State of
Georgia;
(c) Mortgage
Premises Located in Georgia:
There
is no Mortgage Loan that was originated on or after March 7, 2003, which is
a
“high cost home loan” as defined under the Georgia Fair Lending
Act;
(d) No
High Cost Loans:
No
Mortgage Loan is a “high cost home,” “covered” (excluding home loans defined as
“covered home loans” in the New Jersey Home Ownership Security Act of 2002 that
were originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” loan under any applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees);
(e) Credit
Insurance:
With
respect to each Mortgage Loan, no borrower obtained a prepaid single-premium
credit-life, credit disability, credit unemployment or credit property insurance
policy In connection with the origination of the mortgage loan;
(f) Prepayment
Penalties:
No
subprime mortgage loan originated on or after October 1, 2002 will impose a
prepayment premium for a term in excess of three years. Any loans originated
prior to such date, and any non-subprime loans, will not impose prepayment
penalties in excess of five years;
(g) Credit
Reporting
(past
practice): The Seller has fully furnished, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian, and Trans Union Credit Information Seller (three of the
credit repositories), on a monthly basis;
(h) Credit
Reporting
(future
covenant): With respect to the Interim Servicing Period, the Seller will fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and unfavorable)
on its borrower credit files to Equifax, Experian, and Trans Union Credit
Information Seller (three of the credit repositories), on a monthly
basis;
(i) Qualified
Mortgage for REMIC:
Each
Mortgage Loan is a “qualified mortgage” under Section 860G(a)(3) of the Code and
Treasury Regulation Section 1.860G-2(a)(1); and
(j) No
Arbitration Provision:
With
respect to any Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage nor the related Mortgage Note requires the borrower to submit
to arbitration to resolve any dispute arising out of or relating in any way
to
the mortgage loan transaction.
EXHIBIT
J
RECONSTITUTION
OF MORTGAGE LOANS AND
COMPLIANCE
WITH REGULATION AB
Section
8.01 Certain
Covenants of the Seller.
The
Seller shall take reasonable steps to assist the Purchaser, if the Purchaser
so
requests by fifteen (15) calendar days’ advance written notice to the Seller, in
re-selling the Mortgage Loans in a Whole Loan Transfer or Pass-Through Transfer,
which steps may include, (a) providing any information relating to the Mortgage
Loans, including the Underwriting Guidelines, reasonably necessary to assist
in
the preparation of any disclosure documents, (b) to restate the representations
and warranties contained or referenced in Section 3.01 hereof as of the closing
date of such Whole Loan Transfer or Securitization Transaction; provided,
however, the Seller may qualify and/or modify any such representations or
warranties to reflect any facts or circumstances arising subsequent to the
related Closing Date and (c) provide at the request of the Purchaser customary
indemnifications contained in Securitization Transactions relating to disclosure
provided by the Seller.
Section
8.02 Intent
of the Parties; Reasonableness.
The
Purchaser and the Seller acknowledge and agree that one of the purposes of
Article VIII of this Agreement is to facilitate compliance by the Purchaser
and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Neither the Purchaser nor any Depositor shall
exercise its right to request delivery of information or other performance
under
these provisions other than in good faith, or for purposes other than compliance
with the Securities Act, the Exchange Act and the rules and regulations of
the
Commission thereunder. The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser or any Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Seller shall cooperate fully with the Purchaser to deliver
to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Purchaser or any
Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Seller any Third-Party Originator and the Mortgage Loans, reasonably believed
by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
Section
8.03 Additional
Representations and Warranties of the Seller.
The
Seller shall represent to the Purchaser and to any Depositor, as of the date
on
which information is first provided to the Purchaser or any Depositor under
Section 8.04 that, except as disclosed in writing to the Purchaser or such
Depositor prior to such date:
(a) there
are
no material legal or governmental proceedings pending (or known to be
contemplated) against the Seller or any Third-Party Originator; and
(b) there
are
no affiliations, relationships or transactions relating to the Seller or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
Section
8.04 Information
to Be Provided by the Seller.
In
connection with any Securitization Transaction the Seller shall (i) within
five
(5) Business Days following request by the Purchaser or any Depositor, provide
to the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a), (b), (c) and (f) of this Section, and (ii) as
promptly as practicable following notice to or discovery by the Seller, provide
to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
(a) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent)
and
(ii) each Third-Party Originator, as is requested for the purpose of compliance
with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
(i) the
originator’s form of organization;
| (ii) |
a
description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage loans,
which description shall include a discussion of the originator’s
experience in originating mortgage loans of a similar type as the Mortgage
Loans; information regarding the size and composition of the originator’s
origination portfolio; and information that may be material, in the
good
faith judgment of the Purchaser or any Depositor, to an analysis of
the
performance of the Mortgage Loans, including the originators’
credit-granting or underwriting criteria for mortgage loans of similar
type(s) as the Mortgage Loans and such other information as the Purchaser
or any Depositor may reasonably request for the purpose of compliance
with
Item 1110(b)(2) of Regulation AB;
|
| (iii) |
a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Seller and each Third-Party
Originator; and
|
| (iv) |
a
description of any affiliation or relationship between the Seller,
each
Third-Party Originator and any of the following parties to a
Securitization Transaction, as such parties are identified to the Seller
by the Purchaser or any Depositor in writing in advance of such
Securitization Transaction:
|
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant
to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Seller, and need not be customized for the Purchaser
or any Depositor. Such Static Pool Information for each vintage origination
year
or prior securitized pool, as applicable, shall be presented in increments
no
less frequently than quarterly over the life of the mortgage loans included
in
the vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than one hundred thirty five (135)
calendar days prior to the date of the prospectus or other offering document
in
which the Static Pool Information is to be included or incorporated by
reference. The Static Pool Information shall be provided in an electronic format
that provides a permanent record of the information provided, such as a portable
document format (pdf) file, or other such electronic format reasonably required
by the Purchaser or the Depositor, as applicable.
(c) If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such statements and agreed-upon
procedures letters of certified public accountants reasonably acceptable to
the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to
the
Seller’s or Third-Party Originator’s originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to and be
for
the benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any Sponsor, any Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser with respect
to a Securitization Transaction. Any such statement or letter may take the
form
of a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(d) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information reasonably available to the Seller regarding the performance of
the
Mortgage Loans as is reasonably required to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation AB.
Section
8.05 Indemnification:
Remedies.
The
Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization Transaction: each
sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing and of the
Depositor, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
(i) (A)
any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided under this Article VIII by or on behalf of the Seller, or provided
under this Article VIII by or on behalf of any Third-Party Originator
(collectively, the “Seller Information”), or (B) the omission or alleged
omission to state in the Seller Information a material fact required to be
stated in the Seller Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this paragraph
shall be construed solely by reference to the Seller Information and not to
any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information or any portion
thereof is presented together with or separately from such other
information;
(ii) any
failure by the Seller or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Article VIII; or
(iii) any
breach by the Seller of a representation or warranty set forth in Section 8.03,
to the extent that such breach is not cured by such closing date.
In
the
case of any failure of performance described in clause (ii) of this Section,
the
Seller shall promptly reimburse the Purchaser or any Depositor, as applicable,
for all costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants’ letter or other material not
delivered as required by the Seller or any Third-Party Originator.
Section
8.06 Information
to Be Provided by the Purchaser.
The
Purchaser shall provide customary performance data with respect to the Mortgage
Loans to the Seller in a manner mutually acceptable to the Purchaser and the
Seller.
EXHIBIT
K
SERVICING
TRANSFER PROCEDURES
A. Prior
to
each Servicing Transfer Date:
1. The
Seller or the prior servicer shall inform all hazard, flood, earthquake, private
mortgage and any other insurance companies and/or their agents providing
insurance with respect to any Mortgage Loan of the transfer and request a change
in the loss payee mortgage endorsement clause to the Successor Servicer’s name.
With respect to each Mortgage Loan which is covered by a force placed insurance
policy, the Seller or the prior servicer shall cause such policy to be canceled
as of the Servicing Transfer Date and the Successor Servicer shall cause such
insurance to be provided by its force placed carrier as of such Servicing
Transfer Date. On the Servicing Transfer Date, the Seller or the prior servicer
shall provide to the Successor Servicer a list of all Mortgage Loans covered
by
force placed insurance that will be canceled in connection with the transfer
of
the related Servicing Rights to the Successor Servicer. The Seller or the prior
servicer shall deliver all force placed cancellation refunds via wire or check
with applicable loan level detail within five (5) Business Days after the
Servicing Transfer Date.
2. The
Seller or the prior servicer shall transfer all transferable life-of-loan real
estate tax service contracts on the Mortgage Loans to the extent such contracts
are in place, and
shall
assign and transfer all such contracts to the Successor Servicer at no expense
to the Successor Servicer. In the event that a Mortgage Loan is not subject
to a
fully assignable life of loan tax service contract issued by a nationally
recognized tax service contract provider which is assignable to the Successor
Servicer or any subsequent Successor Servicer without the payment of any cost
or
fee, the Successor Servicer shall acquire a tax service contract for any such
Mortgage Loan and shall be entitled to reimbursement from the Seller for the
cost thereof. The Seller also agrees to reimburse the Successor Servicer for
its
actual cost in obtaining life of loan flood zone determination tracking from
First American Flood Data Services or any other similar company offering life
of
loan flood zone determination tracking services with respect to Mortgage Loans
transferred to the Servicing Portfolio without such tracking service. The
Successor Servicer shall obtain, at the Seller’s expense, tax reports for all
Mortgage Loans as of the Servicing Transfer Date.
3. The
Seller shall, no later than fifteen (15) days prior to the Servicing Transfer
Date, cause the prior servicer to inform all Mortgagors of the change in
servicer from the Seller (or its designee) to the Successor Servicer by written
notice in accordance with applicable law; provided, however, the content and
format of such letters shall have the prior approval of the Successor Servicer.
The Seller or the prior servicer shall promptly provide the Successor Servicer
with copies of all such notices.
4. The
Seller or the prior servicer shall pay all private mortgage insurance premiums
and all hazard, flood, earthquake and other insurance premiums for insurance
covering any of the Mortgage Loans, and real estate taxes for which bills have
been received by the Seller or the prior servicer prior to the Servicing
Transfer Date, on all Mortgage Loans with impound/escrow accounts, to the extent
such premiums or taxes would be delinquent if unpaid within thirty (30) days
after the Servicing Transfer Date. The Seller or the prior servicer will send
to
the Successor Servicer, and the Servicer will pay, any bills received by the
Seller or the prior servicer on or after the Servicing Transfer Date, and any
such bills received by the Seller or the prior servicer prior to the Servicing
Transfer Date, which the Seller or the prior servicer is not required to pay
pursuant to this subparagraph.
5. The
Seller or the prior servicer shall deliver to the Successor Servicer available
computer or like records of the Seller and the prior servicer which contain
each
item of information specified in Exhibit A to the Agreement and reflect the
status of payments, balances and other pertinent information on the Mortgage
Loans as of the Servicing Transfer Date (such information shall include, but
not
be limited to, comprehensive tax and insurance information for each Mortgage
Loan, identifying payee, payee address, next payment due date, next amount
payable, policy number/parcel number). Such records shall include magnetic
tapes, if available, reflecting all computer files maintained by the Seller
and
the prior servicer with respect to the Mortgage Loans, shall include hard copy
trial balance reports and schedules if requested and, as reasonably required
by
the Successor Servicer, shall be in a format and storage medium acceptable
for
conversion to the Successor Servicer’s servicing computer system, and shall be
delivered within one (1) Business Day prior to the Servicing Transfer
Date.
6. The
Seller shall deliver a hard copy of the Servicing File for each Mortgage Loan,
including copies of pertinent credit files held by the prior servicer within
five (5) Business Days after the Servicing Transfer Date. In addition, upon
the
Successor Servicer’s reasonable request, the Seller or the prior servicer shall
assist the Successor Servicer in all reasonable respects in the Successor
Servicer’s efforts to obtain any additional documents or information necessary
to enable the Successor Servicer to service the Mortgage Loans properly. If
a
document deficiency has not been cured in a timely manner and is preventing
the
proper servicing of a Mortgage Loan, upon the Seller’s request, the Successor
Servicer may cure such deficiencies and shall be reimbursed by the Seller for
costs incurred in connection therewith, which reimbursement may be netted by
the
Successor Servicer from its remittance to the Seller.
7. With
respect to Mortgage Loans for which the Mortgagor is in bankruptcy, the Seller
or the prior servicer shall provide the Successor Servicer with the following
information to the extent available: attorney name, address and phone number,
foreclosure status, bankruptcy status and bankruptcy case number, filing date
and chapter. In addition, the Seller or the prior servicer shall notify the
bankruptcy trustee with respect to each related Mortgage Loan of the change
in
servicer from the prior servicer to the Successor Servicer and shall provide
the
Successor Servicer with copies of such notices.
B. After
each Servicing Transfer Date:
1. Within
five (5) Business Days after the Servicing Transfer Date, the Seller or the
prior servicer will deliver to the Successor Servicer reports setting forth
all
Mortgage Loan escrow/impound balances as of the Servicing Transfer Date,
reporting all unposted payments and unearned fees which are deemed collected
as
of the Servicing Transfer Date, and including a reconciliation of such
escrow/impound balances.
2. Within
five (5) Business Days after the Servicing Transfer Date, the Seller or the
prior servicer will deliver to the Successor Servicer all Mortgage Loan
histories in bulk or electronically from origination to the Servicing Transfer
Date to the extent available. In addition, the Seller shall cause the prior
servicer to make Mortgage Loan histories available to the related Mortgagors
upon request made during the twelve (12) months following the Servicing Transfer
Date to the extent available.
3. The
Seller or the prior servicer shall deliver to the Successor Servicer any
correspondence received by the Seller or the prior servicer relating to the
Mortgage Loans after the Servicing Transfer Date, such as tax bills, insurance
bills, borrower letters and the like. Such items shall be forwarded to the
Successor Servicer within one (1) Business Day following the day on which the
correspondence is received by the Seller or the prior servicer, or as soon
thereafter as is practicable. The correspondence shall be forwarded to the
Successor Servicer via overnight courier for the first sixty (60) days
subsequent to the Servicing Transfer Date and via regular mail
thereafter.
4. The
Seller or the prior servicer shall deliver to the Successor Servicer any
payments on the Mortgage Loans received by the Seller or the prior servicer
from
the related Mortgagors for a period of sixty (60) days following the Servicing
Transfer Date. The Seller shall forward or cause the prior servicer to forward
any such payment to the Successor Servicer within one (1) Business Days after
the Seller’s or the prior servicer’s receipt thereof, or as soon thereafter as
is practicable. Such payments shall be forwarded to the Successor Servicer
via
overnight courier for the first thirty (30) days subsequent to the Servicing
Transfer Date and via regular mail for the following thirty (30) days.
Thereafter, the Seller may return or cause the prior servicer to return to
the
related Mortgagors any payments on the Mortgage Loans received by the Seller
or
prior servicer.
5. The
Seller will reimburse the Successor
Servicer
for any outstanding Servicing Advances for which there are insufficient proceeds
in the Custodial Account and will reimburse the Successor
Servicer
for trailing expenses incurred by a prior servicer prior to but invoiced after
the Transfer Date within ten (10) Business Days of notification of such trailing
expenses. The Seller shall reimburse the Successor
Servicer
for trailing expenses incurred by the Successor
Servicer
prior to but invoiced after the date of termination, replacement or resignation
of the Successor
Servicer
or the date of transfer of servicing to a successor Servicer, upon presentation
of invoices or other reasonable documentation of such expenses, such
reimbursement to be made within 10 Business Days of presentation of such
documentation.
6. The
Seller or the prior servicer shall prepare and send Internal Revenue Service
Form 1098 and 1099 forms to all Mortgagors for the period from January 1 of
the
year in which the Servicing Transfer Date occurs through the Servicing Transfer
Date.
7. No
later
than five (5) Business Days after the Servicing Transfer Date, the Seller or
the
prior servicer shall deliver to the Successor Servicer, copies of all cut-off
or
accounting reports relating to the Mortgage Loans as of the Servicing Transfer
Date, including a trial balance and reports of collections, delinquencies,
prepayments, curtailments, escrow payments, escrow balances, partial payments,
partial payment balances and other like information on the Mortgage
Loans.
8. Seller
or
the prior servicer shall mail year-end statements reporting interest income
and
interest expense statements to the Mortgagors for the period from January 1
of
the year in which the Servicing Transfer Date occurs through the Servicing
Transfer Date.
EXHIBIT
E
REQUEST
FOR RELEASE OF DOCUMENTS
See
Exhibit 3 to the Custodial Agreement
EXHIBIT
F-1
FORM
OF
TRANSFEROR REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
MASTR
Asset Backed Securities Trust, Series 2006-AM1, Mortgage Pass-Through
Certificates, Class ___,
representing a ___% Class ___ Percentage Interest |
Ladies
and Gentlemen:
In
connection with the transfer by ________________ (the “Transferor”) to
________________ (the “Transferee”) of the captioned mortgage pass-through
certificates (the “Certificates”), the Transferor hereby certifies as
follows:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
(e)
has taken any other action, that (in the case of each of subclauses (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933, as amended (the “1933 Act”), or would render the
disposition of any Certificate a violation of Section 5 of the 1933 Act or
any
state securities law or would require registration or qualification pursuant
thereto. The Transferor will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Transferor will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of that
certain Pooling and Servicing Agreement, dated as of February 1, 2006, among
Mortgage Asset Securitization Transactions, Inc. as Depositor, ▇▇▇▇▇ Fargo
Bank,
N.A. as Master Servicer and Trust Administrator and U.S. Bank National
Association as Trustee (the “Pooling and Servicing Agreement”), pursuant to
which Pooling and Servicing Agreement the Certificates were issued.
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Pooling and Servicing Agreement.
Very
truly yours,
[Transferor]
By:___________________________
Name:
Title:
FORM
OF
TRANSFEREE REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
MASTR
Asset Backed Securities Trust, Series 2006-AM1, Mortgage Pass-Through
Certificates, Class ___, representing a ___% Class ___
Percentage Interest |
Ladies
and Gentlemen:
In
connection with the purchase from ______________________ (the “Transferor”) on
the date hereof of the captioned trust certificates (the “Certificates”),
_______________ (the “Transferee”) hereby certifies as follows:
1.
The
Transferee is a “qualified institutional buyer” as that term is defined in Rule
144A (“Rule 144A”) under the Securities Act of 1933 (the “1933 Act”) and has
completed either of the forms of certification to that effect attached hereto
as
Annex 1 or Annex 2. The Transferee is aware that the sale to it is being made
in
reliance on Rule 144A. The Transferee is acquiring the Certificates for its
own
account or for the account of a qualified institutional buyer, and understands
that such Certificate may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the 1933
Act.
2.
The
Transferee has been furnished with all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement
referred to below, and (d) any credit enhancement mechanism associated with
the
Certificates, that it has requested.
All
capitalized terms used but not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement, dated as
of
February 1, 2006, among Mortgage Asset Securitization Transactions, Inc. as
Depositor, ▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer and Trust Administrator
and
U.S. Bank National Association as Trustee, pursuant to which the Certificates
were issued.
[TRANSFEREE]
By:__________________________
Name:
Title:
ANNEX
1 TO EXHIBIT F-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and ▇▇▇▇▇ Fargo Bank, N.A., as Trust Administrator, with respect
to the mortgage pass-through certificates (the “Certificates”) described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the entity purchasing the
Certificates (the “Transferee”).
2.
In
connection with purchases by the Transferee, the Transferee is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because (i) the Transferee owned and/or invested on a
discretionary basis $______________________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Transferee’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in
the
category marked below.
___
CORPORATION, ETC. The Transferee is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar business
trust, partnership, or any organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986.
___
BANK.
The Transferee (a) is a national bank or banking institution organized under
the
laws of any State, territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which
is
attached hereto.
___
SAVINGS AND LOAN. The Transferee (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least
___
BROKER-DEALER. The Transferee is a dealer registered pursuant to Section 15
of
the Securities Exchange Act of 1934.
___
INSURANCE COMPANY. The Transferee is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of
risks underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___
STATE
OR LOCAL PLAN. The Transferee is a plan established and maintained by a State,
its political subdivisions, or any agency or instrumentality of the State or
its
political subdivisions, for the benefit of its employees.
___
ERISA
PLAN. The Transferee is an employee benefit plan within the meaning of Title
I
of the Employee Retirement Income Security Act of 1974.
___
INVESTMENT ADVISOR. The Transferee is an investment advisor registered under
the
Investment Advisers Act of 1940.
3.
The
term “SECURITIES” as used herein DOES NOT INCLUDE (i) securities of issuers that
are affiliated with the Transferee, (ii) securities that are part of an unsold
allotment to or subscription by the Transferee, if the Transferee is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4.
For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, the Transferee used the cost of
such
securities to the Transferee and did not include any of the securities referred
to in the preceding paragraph. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee’s direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934.
5.
The
Transferee acknowledges that it is familiar with Rule 144A and understands
that
the Transferor and other parties related to the Certificates are relying and
will continue to rely on the statements made herein because one or more sales
to
the Transferee may be in reliance on Rule 144A.
___
___
Will
the
Transferee be purchasing the Certificates
Yes
No
only
for
the Transferee’s own account?
6.
If the
answer to the foregoing question is “no”, the Transferee agrees that, in
connection with any purchase of securities sold to the Transferee for the
account of a third party (including any separate account) in reliance on Rule
144A, the Transferee will only purchase for the account of a third party that
at
the time is a “qualified institutional buyer” within the meaning of Rule 144A.
In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently meets
the definition of “qualified institutional buyer” set forth in Rule
144A.
7.
The
Transferee will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice
is
given, the Transferee’s purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above,
the
Transferee agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
Dated:
____________________________________
Print
Name of Transferee
By:_________________________________
Name:
Title:
1 Transferee
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Transferee is a dealer, and, in that case, Transferee
must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
$25,000,000 as demonstrated in its latest annual financial statements,
A COPY OF
WHICH IS ATTACHED HERETO.
ANNEX
2 TO EXHIBIT F-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and ▇▇▇▇▇ Fargo Bank, N.A., as Trust Administrator, with respect
to the mortgage pass- through certificates (the “Certificates”) described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1.
As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the entity purchasing the Certificates (the
“Transferee”) or, if the Transferee is a “qualified institutional buyer” as that
term is defined in Rule 144A under the Securities Act of 1933 (“Rule 144A”)
because the Transferee is part of a Family of Investment Companies (as defined
below), is such an officer of the investment adviser (the
“Adviser”).
2.
In
connection with purchases by the Transferee, the Transferee is a “qualified
institutional buyer” as defined in Rule 144A because (i) the Transferee is an
investment company registered under the Investment Company Act of 1940, and
(ii)
as marked below, the Transferee alone, or the Transferee’s Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most recent
fiscal year. For purposes of determining the amount of securities owned by
the
Transferee or the Transferee’s Family of Investment Companies, the cost of such
securities was used.
|
____
|
The
Transferee owned $___________________ in securities (other than the
excluded securities referred to below) as of the end of the Transferee’s
most recent fiscal year (such amount being calculated in accordance
with
Rule 144A).
|
|
____
|
The
Transferee is part of a Family of Investment Companies which owned
in the
aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most
recent fiscal year (such amount being calculated in accordance with
Rule
144A).
|
3.
The
term “FAMILY OF INVESTMENT COMPANIES” as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4.
The
term “SECURITIES” as used herein does not include (i) securities of issuers that
are affiliated with the Transferee or are part of the Transferee’s Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5.
The
Transferee is familiar with Rule 144A and understands that the parties to which
this certification is being made are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee will be
in
reliance on Rule 144A. In addition, the Transferee will only purchase for the
Transferee’s own account.
6.
The
undersigned will notify the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice, the
Transferee’s purchase of the Certificates will constitute a reaffirmation of
this certification by the undersigned as of the date of such
purchase.
Dated:
__________________________________
Print
Name of Transferee or Advisor
By:________________________________
Name:
Title:
IF
AN
ADVISER:
__________________________________
Print
Name of Transferee
FORM
OF TRANSFEREE REPRESENTATION LETTER
The
undersigned hereby certifies on behalf of the purchaser named below (the
“Purchaser”) as follows:
1.
I am
an executive officer of the Purchaser.
2.
The
Purchaser is a “qualified institutional buyer”, as defined in Rule 144A, (“Rule
144A”) under the Securities Act of 1933, as amended.
3.
As of
the date specified below (which is not earlier than the last day of the
Purchaser’s most recent fiscal year), the amount of “securities”, computed for
purposes of Rule 144A, owned and invested on a discretionary basis by the
Purchaser was in excess of $100,000,000.
Name
of
Purchaser
_______________________________
By:____________________________
Name:
Title:
Date
of
this certificate:
Date
of
information provided in paragraph 3
EXHIBIT
F-2
FORM
OF
TRANSFER AFFIDAVIT AND AGREEMENT
STATE
OF
NEW YORK )
COUNTY
OF
NEW YORK )
__________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am a
______________________ of ____________________________ (the “Owner”) a
corporation duly organized and existing under the laws of ______________, the
record owner of MASTR Asset Backed Securities Trust, Series 2006-AM1, Mortgage
Pass-Through Certificates, Class [R][R-X] Certificates, (the “Residual
Certificates”), on behalf of whom I make this affidavit and agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Pooling and Servicing Agreement pursuant to which the
Residual Certificates were issued.
2. The
Owner
(i) is and will be a “Permitted Transferee” as of ____________, 20__ and (ii) is
acquiring the Residual Certificates for its own account or for the account
of
another Owner from which it has received an affidavit in substantially the
same
form as this affidavit. A “Permitted Transferee” is any person other than a
“disqualified organization” or a possession of the United States. For this
purpose, a “disqualified organization” means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation,
a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency
or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers’
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable
income.
3. The
Owner
is aware (i) of the tax that would be imposed on transfers of the Residual
Certificates to disqualified organizations under the Internal Revenue Code
of
1986 that applies to all transfers of the Residual Certificates after March
31,
1988; (ii) that such tax would be on the transferor or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for
a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that each of the Residual
Certificates may be a “noneconomic residual interest” within the meaning of
proposed Treasury regulations promulgated under the Code and that the transferor
of a “noneconomic residual interest” will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to impede the assessment or collection of tax.
4. The
Owner
is aware of the tax imposed on a “pass-through entity” holding the Residual
Certificates if, at any time during the taxable year of the pass-through entity,
a non-Permitted Transferee is the record holder of an interest in such entity.
(For this purpose, a “pass-through entity” includes a regulated investment
company, a real estate investment trust or common trust fund, a partnership,
trust or estate, and certain cooperatives.)
5. The
Owner
is aware that the Trust Administrator will not register the transfer of any
Residual Certificate unless the transferee, or the transferee’s agent, delivers
to the Trust Administrator, among other things, an affidavit in substantially
the same form as this affidavit. The Owner expressly agrees that it will not
consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are
false.
6.
The
Owner
consents to any additional restrictions or arrangements that shall be deemed
necessary upon advice of counsel to constitute a reasonable arrangement to
ensure that the Residual Certificates will only be owned, directly or
indirectly, by an Owner that is a Permitted Transferee.
7.
The
Owner’s taxpayer identification number is _________________.
8.
The
Owner
has reviewed the restrictions set forth on the face of the Residual Certificates
and the provisions of Section 5.02(d) of the Pooling and Servicing Agreement
under which the Residual Certificates were issued (in particular, clauses
(iii)(A) and (iii)(B) of Section 5.02(d) which authorize the Trust Administrator
to deliver payments to a person other than the Owner and negotiate a mandatory
sale by the Trust Administrator in the event that the Owner holds such
Certificate in violation of Section 5.02(d)); and that the Owner expressly
agrees to be bound by and to comply with such restrictions and
provisions.
9.
The
Owner
is not acquiring and will not transfer the Residual Certificates in order to
impede the assessment or collection of any tax.
10.
The
Owner
anticipates that it will, so long as it holds the Residual Certificates, have
sufficient assets to pay any taxes owed by the holder of such Residual
Certificates, and hereby represents to and for the benefit of the person from
whom it acquired the Residual Certificates that the Owner intends to pay taxes
associated with holding such Residual Certificates as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Residual Certificates.
11.
The
Owner
has no present knowledge that it may become insolvent or subject to a bankruptcy
proceeding for so long as it holds the Residual Certificates.
12.
The
Owner
has no present knowledge or expectation that it will be unable to pay any United
States taxes owed by it so long as any of the Certificates remain
outstanding.
13.
The
Owner
is not acquiring the Residual Certificates with the intent to transfer the
Residual Certificates to any person or entity that will not have sufficient
assets to pay any taxes owed by the holder of such Residual Certificates, or
that may become insolvent or subject to a bankruptcy proceeding, for so long
as
the Residual Certificates remain outstanding.
14.
The
Owner
will, in connection with any transfer that it makes of the Residual
Certificates, obtain from its transferee the representations required by Section
5.02(d) of the Pooling and Servicing Agreement under which the Residual
Certificate were issued and will not consummate any such transfer if it knows,
or knows facts that should lead it to believe, that any such representations
are
false.
15.
The
Owner
will, in connection with any transfer that it makes of the Residual
Certificates, deliver to the Trust Administrator an affidavit, which represents
and warrants that it is not transferring the Residual Certificates to impede
the
assessment or collection of any tax and that it has no actual knowledge that
the
proposed transferee: (i) has insufficient assets to pay any taxes owed by such
transferee as holder of the Residual Certificates; (ii) may become insolvent
or
subject to a bankruptcy proceeding for so long as the Residual Certificates
remains outstanding; and (iii) is not a “Permitted Transferee”.
16.
The
Owner
is a citizen or resident of the United States, a corporation, partnership or
other entity created or organized in, or under the laws of, the United States
or
any political subdivision thereof, or an estate or trust whose income from
sources without the United States may be included in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States.
17.
The
Owner
of the Residual Certificate, hereby agrees that in the event that the Trust
Fund
created by the Pooling and Servicing Agreement is terminated pursuant to Section
9.01 thereof, the undersigned shall assign and transfer to the Holders of the
Class CE Certificates (with respect to a termination of REMIC I) any amounts
in
excess of par received in connection with such termination. Accordingly, in
the
event of such termination, the Trust Administrator is hereby authorized to
withhold any such amounts in excess of par and to pay such amounts directly
to
the Holders of the Class CE Certificates. This agreement shall bind and be
enforceable against any successor, transferee or assigned of the undersigned
in
the Residual Certificate. In connection with any transfer of the Residual
Certificate, the Owner shall obtain an agreement substantially similar to this
clause from any subsequent owner.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of __________,
20__.
[OWNER]
By:__________________________
Name:
Title:
[Vice]
President
ATTEST:
By:_________________________________
Name:
Title:
[Assistant]
Secretary
Personally
appeared before me the above-named , known or proved to me to be the same person
who executed the foregoing instrument and to be a [Vice] President of the Owner,
and acknowledged to me that [he/she] executed the same as [his/her] free act
and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, 20___.
____________________________
Notary
Public
County
of
__________________
State
of
___________________
My
Commission expires:
FORM
OF TRANSFEROR AFFIDAVIT
STATE
OF
NEW YORK )
COUNTY
OF
NEW YORK )
__________________________,
being duly sworn, deposes, represents and warrants as follows:
1.
I
am a
____________________ of ____________________________ (the “Owner”), a
corporation duly organized and existing under the laws of ______________, on
behalf of whom I make this affidavit.
2.
The
Owner
is not transferring the Residual Certificates (the “Residual Certificates”) to
impede the assessment or collection of any tax.
3.
The
Owner
has no actual knowledge that the Person that is the proposed transferee (the
“Purchaser”) of the Residual Certificates: (i) has insufficient assets to pay
any taxes owed by such proposed transferee as holder of the Residual
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding
for so long as the Residual Certificates remain outstanding and (iii) is not
a
Permitted Transferee.
4.
The
Owner
understands that the Purchaser has delivered to the Trust Administrator a
transfer affidavit and agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit F-2. The Owner does not know or believe that
any
representation contained therein is false.
5.
At
the
time of transfer, the Owner has conducted a reasonable investigation of the
financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Owner
has
determined that the Purchaser has historically paid its debts as they became
due
and has found no significant evidence to indicate that the Purchaser will not
continue to pay its debts as they become due in the future. The Owner
understands that the transfer of a Residual Certificate may not be respected
for
United States income tax purposes (and the Owner may continue to be liable
for
United States income taxes associated therewith) unless the Owner has conducted
such an investigation.
6.
Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them
in
the Pooling and Servicing Agreement.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of ___________,
20__.
[OWNER]
By:_____________________________
Name:
Title:
[Vice]
President
ATTEST:
By:______________________________
Name:
Title:
[Assistant]
Secretary
Personally
appeared before me the above-named , known or proved to me to be the same person
who executed the foregoing instrument and to be a [Vice] President of the Owner,
and acknowledged to me that [he/she] executed the same as [his/her] free act
and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, 20___.
____________________________
Notary
Public
County
of
__________________
State
of
___________________
My
Commission expires:
EXHIBIT
G
FORM
OF
CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________,
20__
Mortgage
Asset Securitization Transactions, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Re:
|
MASTR
Asset Backed Securities Trust, Series 2006-AM1,
Mortgage Pass-Through Certificates, Class ___ |
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance of MASTR Asset
Backed Securities Trust, Series 2006-AM1, Mortgage Pass-Through Certificates,
Class [CE] [P] [R](the “Certificates”), issued pursuant to a Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) dated as of February
1, 2006, among Mortgage Asset Securitization Transactions, Inc. as depositor
(the “Depositor”), ▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer and the Trust
Administrator (the “Master Servicer” and the “Trust Administrator”) and U.S.
Bank National Association as trustee (the “Trustee”). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned thereto in
the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and
warrants to, and covenants with the Depositor, the Trust Administrator, the
Trustee and the Master Servicer that:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
▇▇▇▇▇ plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R.ss.2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within
the meaning of the DOL regulation at 29 ▇.▇.▇.▇▇. 2510.3-101.
Very
truly yours,
_______________________________
By:____________________________
Name:
Title:
EXHIBIT
H
FORM
OF
REPORT PURSUANT TO SECTION 4.06
EXHIBIT
I
FORM
OF
LOST NOTE AFFIDAVIT
Loan
#:
____________
BORROWER:
_____________
LOST
NOTE
AFFIDAVIT
I,
as
____________________ of ______________________, a _______________ corporation
am
authorized to make this Affidavit on behalf of _____________________ (the
“Seller”). In connection with the administration of the Mortgage Loans held by
____________________, a _________________ corporation as Seller on behalf of
Mortgage Asset Securitization Transactions, Inc. (the “Purchaser”),
_____________________ (the “Deponent”), being duly sworn, deposes and says
that:
1. The
Seller’s address
is:
_____________________
_____________________
_____________________
2. The
Seller previously delivered to the Purchaser a signed Initial Certification
with respect
to such Mortgage and/or Assignment of Mortgage;
3.
Such
Mortgage Note and/or Assignment of Mortgage was assigned or sold to the
Purchaser by ________________________, a ____________ corporation pursuant
to the terms and provisions of a Mortgage Loan Purchase Agreement dated as
of
__________ __, _____;
4. Such
Mortgage Note and/or Assignment of Mortgage is not outstanding
pursuant to
a
request for release of Documents;
5.
Aforesaid
Mortgage Note and/or Assignment of Mortgage (the “Original”)
has been
lost;
6. Deponent
has made or caused to be made a diligent search for the Original and
has been
unable to find or recover same;
7. The
Seller was the Seller of the Original at the time of the loss; and
8. Deponent
agrees that, if said Original should ever come into Seller’s
possession, custody
or power, Seller will immediately and without consideration surrender the
Original
to the Purchaser.
9.
Attached
hereto is a true and correct copy of (i) the Note, endorsed in blank by the
Mortgagee and (ii) the Mortgage or Deed of Trust (strike one) which
secures
the Note, which Mortgage or Deed of Trust is recorded in the
county where
the
property is located.
10. Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless the
Purchaser, its successors and assigns, against any loss, liability or damage,
including reasonable attorney’s fees, resulting from the unavailability of any
Notes, including but not limited to any loss, liability or damage arising from
(i) any false statement contained in this Affidavit, (ii) any claim of any
party
that has already purchased a mortgage loan evidenced by the Lost Note or any
interest in such mortgage loan, (iii) any claim of any borrower with respect
to
the existence of terms of a mortgage loan evidenced by the Lost Note on the
related property to the fact that the mortgage loan is not evidenced by an
original note and (iv) the issuance of a new instrument in lieu thereof (items
(i) through (iv) above hereinafter referred to as the “Losses”) and (b) if
required by any Rating Agency in connection with placing such Lost Note into
a
Pass-Through Transfer, shall obtain a surety from an insurer acceptable to
the
applicable Rating Agency to cover any Losses with respect to such Lost
Note.
11. This
Affidavit is intended to be relied upon by the Purchaser, its successors and
assigns. _____________________, a ______________ corporation represents and
warrants that is has the authority to perform its obligations under this
Affidavit of Lost Note.
Executed
this ____ day, of ___________ ______.
SELLER
By:______________________
Name:
Title:
On
this
_____ day of ________, _____, before me appeared _________________ to me
personally known, who being duly sworn did say that he is the
_____________________ of ____________________ a ______________ corporation
and
that said Affidavit of Lost Note was signed and sealed on behalf of such
corporation and said acknowledged this instrument to be the free act and deed
of
said corporation.
Signature:
[Seal]
EXHIBIT
J-1
FORM
CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER
WITH
FORM
10-K
Certification
I,
[identify the certifying individual], certify that:
1. I
have
reviewed this annual report on Form 10-K, and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K
[identify issuing entity] (i.e., the name of the specific deal to which this
certification relates rather than just the name of the Depositor)] (the
“Exchange Act periodic reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do 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 with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. I
am
responsible for reviewing the activities performed by the servicer and based
on
my knowledge and the compliance review conducted in preparing the servicer
compliance statement required in this report under Item 1123 of Regulation
AB,
and except as disclosed in the Exchange Act periodic reports, the servicer
has
fulfilled its obligations under the servicing agreement in all material
respects; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated party: Ocwen Loan Servicing, LLC.
▇▇▇▇▇
FARGO BANK, N.A.
By:____________________________________
Name:
Title:
Date:
EXHIBIT
J-2
FORM
OF
CERTIFICATION TO BE PROVIDED TO MASTER SERVICER
BY
THE
SERVICER
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re:
MASTR
Asset Backed Securities Trust 2006-AM1
[Ocwen
Loan Servicing, LLC.], as Servicer hereby certifies to the Master Servicer
that:
1. Based
on
my knowledge, the information in the Annual
Statement of Compliance, the Attestation Report, the Assessment of
Compliance
and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer 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
date of this certification;
2.
Based
on my knowledge, the servicing information required to be provided to the Master
Servicer by the Servicer under the Pooling and Servicing Agreement has been
provided to the Master Servicer;
3.
I am
responsible for reviewing the activities performed by the Servicer under the
Pooling and Servicing Agreement and based upon the review required by the
Pooling and Servicing Agreement, and except as disclosed in the Annual Statement
of Compliance, the Attestation Report and the Assessment of Compliance submitted
to the Master Servicer, the Servicer has, as of the date of this certification
fulfilled its obligations under the Pooling and Servicing Agreement in all
material respects; and
4.
I
have
disclosed to the Master Servicer all significant deficiencies relating to
the
Servicer’s
compliance with the Servicing Criteria as set forth in the Pooling and Servicing
Agreement in all material respects.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated February 1, 2006, among Mortgage Asset
Transactions, Inc. as depositor, Ocwen Loan Servicing, LLC as servicer, ▇▇▇▇▇
Fargo Bank, N.A. as master servicer and trust administrator and U.S. Bank
National Association as trustee.
OCWEN
LOAN SERVICING, LLC
as
Servicer
By:_________________________________
Name:
Title:
Date:
EXHIBIT
K
ANNUAL
STATEMENT OF COMPLIANCE PURSUANT TO SECTION 3.20
MASTR
Asset Backed Securities Trust 2006-AM1
MORTGAGE
PASS THROUGH CERTIFICATES, SERIES 2006-AM1
I,
_____________________, hereby certify that I am a duly appointed
__________________________ of ▇▇▇▇▇ Fargo Bank, N.A. (the “Master Servicer”),
and further certify as follows:
1. This
certification is being made pursuant to the terms of the Pooling and Servicing
Agreement, dated as of February 1, 2006 (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc., as depositor, the Master Servicer, as master
servicer and trust administrator and U.S. Bank National Association, as
trustee.
2. The
undersigned officer of the Servicer hereby certifies that (i) a review of the
activities of the Servicer during the preceding calendar year and of performance
under this Agreement has been made under such officers’ supervision and (ii) to
the best of such officers’ knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement in all material respects
throughout such year, or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officer and the nature and status of cure provisions thereof.
Capitalized
terms not otherwise defined herein have the meanings set forth in the
Agreements.
Dated:
_____________, 2006
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
_____________.
By:
_____________________________
Name:
Title:
I,
_________________________, a (an) __________________ of the Master Servicer,
hereby certify that _________________ is a duly elected, qualified, and acting
_______________________ of the Master Servicer and that the signature appearing
above is his/her genuine signature.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________.
By:
______________________________
Name:
Title:
EXHIBIT
L
FORM
OF
CAP CONTRACT
BEAR
▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
|
DATE:
|
February
27, 2006
|
|
TO:
|
▇▇▇▇▇
Fargo Bank, N.A., not individually, but solely as Supplemental Interest
Trust Trustee for the Supplemental Interest Trust with respect to
the
MASTR Asset Backed Securities Trust 2006-AM1, Mortgage Pass-Through
Certificates, Series 2006-AM1
|
|
ATTENTION:
|
Client
Manager - MABS 2006-AM1
|
|
TELEPHONE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
FACSIMILE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
FROM:
|
Derivatives
Documentation
|
|
TELEPHONE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
FACSIMILE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation and Agreement
|
|
REFERENCE
NUMBER:
|
▇▇▇▇▇▇▇▇▇
|
The
purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the current Transaction entered into on the Trade Date specified
below (the "Current Transaction") between Bear ▇▇▇▇▇▇▇ Financial Products Inc.
("BSFP") and ▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as
Supplemental Interest Trust Trustee for the Supplemental Interest Trust with
respect to the MASTR Asset Backed Securities Trust 2006-AM1, Mortgage
Pass-Through Certificates, Series 2006-AM1 ("Counterparty") under the Pooling
and Servicing Agreement, dated as of February 1, 2006 among ▇▇▇▇▇ Fargo Bank,
N.A., as Master Servicer and Trust Administrator, Mortgage Asset Securitization
Transactions, Inc., as Depositor, Ocwen Loan Servicing, LLC, as Servicer and
U.S. Bank National Association, as Trustee (the “Trustee”) (the “Pooling and
Servicing Agreement”). This letter agreement constitutes the sole and complete
"Confirmation," as referred to in the "ISDA Form Master Agreement" (as defined
below), as well as a “Schedule” as referred to in the ISDA Form Master
Agreement.
|
1.
|
This
Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). You and we have agreed to enter into this
Agreement in lieu of negotiating a Schedule to the 1992 ISDA Master
Agreement (Multicurrency—Cross Border) form (the "ISDA Form Master
Agreement") but, rather, an ISDA Form Master Agreement shall be deemed
to
have been executed by you and us on the date we entered into the
Transaction. In the event of any inconsistency between the provisions
of
this Agreement and the Definitions or the ISDA Form Master Agreement,
this
Agreement shall prevail for purposes of the Transaction. Terms capitalized
but not defined herein shall have the meanings attributed to them
in the
Pooling and Servicing Agreement.
|
|
2.
|
The
terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
|
Type
of Transaction:
|
Rate
Cap
|
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for such
period in
Schedule I attached hereto.
|
|
|
Trade
Date:
|
February
16, 2006
|
|
|
Effective
Date:
|
December
25, 2006
|
|
|
Termination
Date:
|
January
25, 2012, subject to adjustment in accordance with the Business Day
Convention.
|
|
|
Fixed
Amount (Premium):
|
||
|
Fixed
Rate Payer:
|
Counterparty
|
|
|
Fixed
Rate Payer Payment Date:
|
February
27, 2006
|
|
|
Fixed
Amount:
|
USD
454,000
|
|
|
Floating
Amounts:
|
||
|
Floating
Rate Payer:
|
BSFP
|
|
|
Cap
Rate:
|
With
respect to any Calculation Period, the rate set forth for such period
in
Schedule I attached hereto.
|
|
|
Floating
Rate Payer Period End Dates:
|
The
25th
calendar day of each month during
the Term
of this Transaction, commencing January 25, 2007, and ending on the
Termination Date, subject to adjustment in accordance with the Business
Day Convention.
|
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Fixed Rate Payer Payment Date shall
be
two Business Days prior to each Fixed Rate Payer Period End
Date.
|
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, that if the Floating Rate Option for any Calculation
Period is greater than the
Ceiling Rate (as set forth in Schedule I attached hereto)
then the Floating Rate Option for such Calculation Period shall be
deemed
to be the
Ceiling Rate.
|
|
|
Floating
Amount:
|
To
be determined in accordance with the following Formula:
|
|
|
250*Floating
Rate Option*Notional Amount*Floating Rate Day Count
Fraction
|
||
|
Designated
Maturity:
|
One
month
|
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
|
|
Compounding:
|
Inapplicable
|
|
|
Business
Days:
|
New
York
|
|
|
Business
Day Convention:
|
Following
|
|
3.
|
Additional
Provisions:
|
Each
party hereto is hereby advised and acknowledges that the other party
has
engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material
actions in reliance upon the entry by the parties into the Transaction
being entered into on the terms and conditions set forth herein and
in the
Confirmation relating to such Transaction, as applicable. This paragraph
shall be deemed repeated on the trade date of each
Transaction.
|
|
4.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
|
|
1)
|
The
parties agree that subparagraph (ii) of Section 2(c) of the ISDA
Form
Master Agreement will apply to any Transaction.
|
|
2)
|
Termination
Provisions.
Notwithstanding the provisions of paragraph 9 below, for purposes
of the
ISDA Form Master Agreement:
|
|
(a)
|
"Specified
Entity" is not applicable to BSFP or Counterparty for any purpose.
|
|
(b)
|
“Breach
of Agreement” provision of Section 5(a)(ii) will not apply to BSFP or
Counterparty.
|
|
(c)
|
“Credit
Support Default” provisions of Section 5(a)(iii) will not apply to
Counterparty and will not apply to BSFP unless BSFP has obtained
a
guarantee or posted collateral pursuant to paragraph 16
below.
|
|
(d)
|
“Misrepresentation”
provisions or Section 5(a)(iv) will not apply to BSFP or
Counterparty.
|
|
(e)
|
"Specified
Transaction" is not applicable to BSFP or Counterparty for any
purpose,
and, accordingly, Section 5(a)(v) shall not apply to BSFP or
Counterparty.
|
|
(f)
|
The
"Cross Default" provisions of Section 5(a)(vi) will not apply to
BSFP or
to Counterparty.
|
|
(g)
|
The
"Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply
to BSFP or Counterparty.
|
|
(h)
|
The
“Bankruptcy” provision of Section 5(a)(vii)(2) will be inapplicable to
Counterparty.
|
|
(i)
|
The
"Automatic Early Termination" provision of Section 6(a) will not
apply to
BSFP or to Counterparty.
|
|
(j)
|
Payments
on Early Termination. For the purpose of Section
6(e):
|
|
(i)
|
Market
Quotation will apply.
|
|
|
(ii)
|
The
Second Method will apply.
|
|
(k)
|
"Termination
Currency" means United States Dollars.
|
|
3)
|
Tax
Representations.
|
|
(a)
|
Payer
Representations. For the purpose of Section 3(e) of the ISDA Form
Master
Agreement, each of BSFP and the Counterparty will make the following
representations:
|
|
|
It
is not required by any applicable law, as modified by the practice
of any
relevant governmental revenue authority, of any Relevant Jurisdiction
to
make any deduction or withholding for or on account of any Tax
from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e)
of the
ISDA Form Master Agreement) to be made by it to the other party
under this
Agreement. In making this representation, it may rely
on:
|
||
|
(i)
|
the
accuracy of any representations made by the other party pursuant
to
Section 3(f) of the ISDA Form Master Agreement;
|
|
|
(ii)
|
the
satisfaction of the agreement contained in Section 4(a)(iii) of
the ISDA
Form Master Agreement and the accuracy and effectiveness of any
document
provided by the other party pursuant to Section 4(a)(iii) of the
ISDA Form
Master Agreement; and
|
|
|
(iii)
|
the
satisfaction of the agreement of the other party contained in Section
4(d)
of the ISDA Form Master Agreement, provided that it shall not be
a breach
of this representation where reliance is placed on clause (ii)
and the
other party does not deliver a form or document under Section 4(a)(iii)
of
the ISDA Form Master Agreement by reason of material prejudice
to its
legal or commercial position.
|
|
(b)
|
Payee
Representations. For the purpose of Section 3(f) of the ISDA Form
Master
Agreement, each of BSFP and the Counterparty make the following
representations.
|
The
following representation will apply to BSFP:
BSFP
is a
corporation organized under the laws of the State of Delaware and its U.S.
taxpayer identification number is ▇▇-▇▇▇▇▇▇▇.
The
following representation will apply to the Counterparty:
Counterparty
represents that it is the Supplemental Interest Trust Trustee under the Pooling
and Servicing Agreement.
4) [Reserved]
5) Documents
to be Delivered.
For the
purpose of Section 4(a):
(1) Tax
forms, documents, or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be
delivered
|
|
BSFP
and
the
Counterparty
|
Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding at
a
reduced rate
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is
required
|
| (2) |
Other
documents to be delivered are:
|
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be
delivered
|
Covered
by Section 3(d) Representation
|
|
BSFP
and
the
Counterparty
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver this Agreement, any Confirmation , and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under this Agreement, such Confirmation and/or Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
|
BSFP
and
the
Counterparty
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
6) Miscellaneous.
Miscellaneous
(a) Address
for Notices: For the purposes of Section 12(a) of the ISDA Form Master
Agreement:
Address
for notices or communications to BSFP:
Address: ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: DPC
Manager
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
with
a
copy to:
Address: ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Derivative
Operations - 7th Floor
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
(For
all
purposes)
Address
for notices or communications to the Counterparty:
Address: ▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: Client
Manager - MABS 2006-AM1
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
(For
all
purposes)
(b) Process
Agent. For the purpose of Section 13(c) of the ISDA Form Master
Agreement:
BSFP
appoints as its
Process
Agent: Not
Applicable
The
Counterparty appoints as its
Process
Agent: Not
Applicable
(c) Offices.
The provisions of Section 10(a) of the ISDA Form Master Agreement will not
apply
to this Agreement; neither BSFP nor the Counterparty have any Offices other
than
as set forth in the Notices Section and BSFP agrees that, for purposes of
Section 6(b) of the ISDA Form Master Agreement, it shall not in future have
any
Office other than one in the United States.
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of the ISDA Form Master
Agreement:
|
BSFP
is
not a Multibranch Party.
The
Counterparty is not a Multibranch Party.
(e) Calculation
Agent. The Calculation Agent is BSFP.
(f) Credit
Support Document.
BSFP:
Not
applicable, except for any guarantee or contingent agreement
delivered
pursuant
to paragraph 16 below.
The
Counterparty: Not Applicable
|
(g)
|
Credit
Support Provider.
|
BSFP: Not
Applicable for BSFP for so long as no Credit Support Document is delivered
under
paragraph 16 below, otherwise, the party that is the primary obligor under
the
Credit Support Document.
The
Counterparty: Not Applicable
(h) Governing
Law. The parties to this Agreement hereby agree that the law of the State of
New
York shall govern their rights and duties in whole without regard to the
conflict of law provisions thereof other than New York General Obligations
Law
Sections 5-1401 and 5-1402.
(i) Severability.
If any term, provision, covenant, or condition of this Agreement, or the
application thereof to any party or circumstance, shall be held to be invalid
or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties as
to
the subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(j) Consent
to Recording. Each party hereto consents to the monitoring or recording, at
any
time and from time to time, by the other party of any and all communications
between officers or employees of the parties, waives any further notice of
such
monitoring or recording, and agrees to notify its officers and employees of
such
monitoring or recording.
(k) Waiver
of
Jury Trial. Each
party waives any right it may have to a trial by jury in respect of any
Proceedings relating to this Agreement or any Credit Support Document.
7) Affiliate".
Each of BSFP and Counterparty shall be deemed to not have any Affiliates for
purposes of this Agreement, including for purposes of Section 6(b)(ii) of the
ISDA Form Master Agreement.
8) Section
3
of the ISDA Form Master Agreement is hereby amended by adding at the end thereof
the following subsection (g):
“(g) Relationship
Between Parties.
Each
party represents to the other party on each date when it enters into a
Transaction that:--
(1) Nonreliance.
It is
not relying on any statement or representation of the other party regarding
the
Transaction (whether written or oral), other than the representations expressly
made in this Agreement or the Confirmation in respect of that Transaction.
(2) Evaluation
and Understanding.
(i) FP
is
acting for its own account and ▇▇▇▇▇ Fargo Bank, N.A., is acting as Supplemental
Interest Trust Trustee under the Pooling and Servicing Agreement, and not for
its own account. Each Party has made its own independent decisions to enter
into
this Transaction and as to whether this Transaction is appropriate or proper
for
it based upon its own judgment and upon advice from such advisors as it has
deemed necessary. It is not relying on any communication (written or oral)
of
the other party as investment advice or as a recommendation to enter into this
Transaction; it being understood that information and explanations related
to
the terms and conditions of this Transaction shall not be considered investment
advice or a recommendation to enter into this Transaction. It has not received
from the other party any assurance or guarantee as to the expected results
of
this Transaction.
(ii) It
is
capable of evaluating and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the terms,
conditions and risks of this Transaction. It is also capable of assuming, and
assumes, the financial and other risks of this Transaction.
(iii) The
other
party is not acting as an agent or fiduciary or an advisor for it in respect
of
this Transaction.
(3) Purpose.
It is
an “eligible swap participant” as such term is defined in Section 35.1(b)(2) of
the regulations (17 C.F.R 35) promulgated under, and an “eligible contract
participant” as defined in Section 1(a)(12) of, the Commodity Exchange Act, as
amended, and it is entering into the Transaction for the purposes of managing
its borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.”
9) Additional
Provisions.
Notwithstanding the terms of Sections 5 and 6 of the ISDA Form Master Agreement,
if Counterparty has satisfied its payment obligations under Section 2(a)(i)
of
the ISDA Form Master Agreement, then unless BSFP is required pursuant to
appropriate proceedings to return to Counterparty or otherwise returns to
Counterparty upon demand of Counterparty any portion of such payment, (a) the
occurrence of an event described in Section 5(a) of the ISDA form Master
Agreement with respect to Counterparty shall not constitute an Event of Default
or Potential Event of Default with respect to Counterparty as the Defaulting
Party and (b) BSFP shall be entitled to designate an Early Termination Event
pursuant to Section 6 of the ISDA Form Master Agreement only as a result of
a
Termination Event set forth in either Section 5(b)(i) or Section 5(b)(ii) of
the
ISDA form Master Agreement with respect to BSFP as the Affected Party. For
purposes of the Transaction to which this Agreement relates, Counterparty’s only
obligation under Section 2(a)(i) of the ISDA Form Master Agreement is to pay
the
Fixed Amount on the Fixed Rate Payer Payment Date.
10)
Supplemental Interest Trust Trustee Liability Limitations. It is expressly
understood and agreed by the parties hereto that (a) this Agreement is executed
and delivered by ▇▇▇▇▇ Fargo Bank, N.A. (“▇▇▇▇▇”), not individually or
personally but solely as trustee on behalf of the Supplemental Interest Trust,
(b) each of the representations, undertakings and agreements herein made on
the
part of the Counterparty is made and intended not as personal representations,
undertakings and agreements by ▇▇▇▇▇ but is made and intended for the purpose
of
binding only the Counterparty, (c) nothing herein contained shall be construed
as creating any liability on ▇▇▇▇▇, individually or personally, to perform
any
covenant either expressed or implied contained herein, all such liability,
if
any, being expressly waived by the parties hereto and by any Person claiming
by,
through or under the parties hereto; provided that nothing in this paragraph
shall relieve ▇▇▇▇▇ from performing its duties and obligations under the Pooling
and Servicing Agreement in accordance with the standard of care set forth
therein, (d) under no circumstances shall ▇▇▇▇▇ be personally liable for the
payment of any indebtedness or expenses of the Counterparty or be liable for
the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Counterparty under this Agreement or any other related
documents, other than due to its gross negligence or willful misconduct in
performing the obligations of the Supplemental Interest Trust Trustee under
the
Pooling and Servicing Agreement, (e) any resignation or removal of ▇▇▇▇▇ as
trustee on behalf of the Supplemental Interest Trust shall require the
assignment of this agreement to ▇▇▇▇▇’▇ replacement, and (f) ▇▇▇▇▇ has been
directed, pursuant to the Pooling and Servicing Agreement, to enter into this
Agreement and to perform its obligations hereunder.
11)
Proceedings.
BSFP
shall not institute against or cause any other person to institute against,
or
join any other person in instituting against, Mortgage Asset Securitization
Transactions, Inc., MASTR Asset Backed Securities Trust 2006-AM1, Mortgage
Pass-Through Certificates, Series 2006-AM1 or Counterparty, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy, dissolution or similar law,
for a period of one year and one day (or, if longer, the applicable preference
period) following indefeasible payment in full of the MASTR Asset Backed
Securities Trust 2006-AM1, Mortgage Pass-Through Certificates, Series
2006-AM1.
12)
Set-off. Notwithstanding
any provision of this Agreement or any other existing or future agreement,
each
party irrevocably waives any and all rights it may have to set off, net, recoup
or otherwise withhold or suspend or condition payment or performance of any
obligation between it and the other party hereunder against any obligation
between it and the other party under any other agreements. The provisions for
Set-off set forth in Section 6(e) of the ISDA Form Master Agreement shall not
apply for purposes of this Transaction.
13)
Third
party Beneficiary.
Not
Applicable.
14)
Additional
Termination Events.
Additional Termination Events will apply. (i) If a Rating Agency Downgrade
has
occurred and BSFP has not complied with Section 16 below, then an Additional
Termination Event shall have occurred with respect to BSFP and BSFP shall be
the
sole Affected Party with respect to such an Additional Termination Event. (ii)
If, at any time, the Majority Class CE Certificateholder or the Master Servicer
purchases the Mortgage Loans pursuant to Section 10.01 of the Pooling and
Servicing Agreement, then an Additional Termination Event shall have occurred
with respect to Counterparty and Counterparty shall be the sole Affected Party
with respect to such Additional Termination Event; provided, however, that
notwithstanding the provisions of section 6(b)(iv) of the ISDA Form Master
Agreement, either BSFP or Counterparty may designate an Early Termination Date
(such date shall not be prior to the final Distribution Date under the Pooling
and Servicing Agreement) in respect of this Additional Termination Event. (iii)
If, upon the occurrence of a Swap Disclosure Event (as defined in Section 17
below) BSFP has not, within ten (10) days after such Swap Disclosure Event
complied with any of the provisions set forth in Section 17 below, then an
Additional Termination Event shall have occurred with respect to BSFP and BSFP
shall be the sole Affected Party with respect to such Additional Termination
Event.
15)
Amendment
to the ISDA Form.
The
“Failure
to Pay or Deliver”
provision in Section 5(a)(i) is hereby amended by deleting the word “third” in
the third line thereof and inserting the word “second” in place
thereof.
16)
Rating
Agency Downgrade.
In the
event that BSFP’s long-term unsecured and unsubordinated debt rating is reduced
below “AA-” by S&P or its long-term unsecured and unsubordinated debt rating
is withdrawn or reduced below “Aa3” by ▇▇▇▇▇’▇ (and together with S&P, the
“Swap Rating Agencies”, and such rating thresholds, “Approved Rating
Thresholds”), then within 30 days after such rating withdrawal or downgrade
(unless, within 30 days after such withdrawal or downgrade, each such Swap
Rating Agency, as applicable, has reconfirmed the rating of the Certificates,
which was in effect immediately prior to such withdrawal or downgrade), BSFP
shall, at its own expense, subject to the Rating Agency Condition, either (i)
seek another entity to replace BSFP as party to this Agreement that meets or
exceeds the Approved Rating Thresholds on terms substantially similar to this
Agreement or (ii) obtain a guaranty of, or a contingent agreement of another
person with the Approved Rating Thresholds, to honor, BSFP’s obligations under
this Agreement. BSFP’s failure to do any of the foregoing shall, at the
Counterparty’s option, constitute an Additional Termination Event with BSFP as
the Affected Party. In the event that BSFP’s long-term unsecured and
unsubordinated debt rating is withdrawn or reduced below “BBB-” by S&P, then
within 10 Business Days after such rating withdrawal or downgrade, BSFP shall,
subject to the Rating Agency Condition and at its own expense, either (i) secure
another entity to replace BSFP as party to this Agreement that meets or exceeds
the Approved Rating Thresholds on terms substantially similar to this Agreement
or (ii) obtain a guaranty of, or a contingent agreement of another person with
the Approved Rating Thresholds, to honor, BSFP’s obligations under this
Agreement. For purposes of this provision, “Rating Agency Condition” means, with
respect to any particular proposed act or omission to act hereunder that the
party acting or failing to act must consult with each of the Swap Rating
Agencies then providing a rating of the Certificates and receive from each
of
the Swap Rating Agencies a prior written confirmation that the proposed action
or inaction would not cause a downgrade or withdrawal of the then-current rating
of the Certificates.
17)
Compliance with Regulation AB.
(i) BSFP
agrees and acknowledges that Mortgage Asset Securitization Transactions, Inc.
(“MASTR”) is required under Regulation AB under the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) (“Regulation AB”), to disclose certain financial information regarding
BSFP or its group of affiliated entities, if applicable, depending on the
aggregate “significance percentage” of this Agreement and any other derivative
contracts between BSFP or its group of affiliated entities, if applicable,
and
Counterparty, as calculated from time to time in accordance with Item 1115
of
Regulation AB.
(ii) It
shall
be a swap disclosure event (“Swap Disclosure Event”) if, on any Business Day
after the date hereof, MASTR requests from BSFP the applicable financial
information described in Item 1115 of Regulation AB (such request to be based
on
a reasonable determination by MASTR, in good faith, that such information is
required under Regulation AB) (the “Swap Financial Disclosure”).
(iii) Upon
the
occurrence of a Swap Disclosure Event, BSFP, at its own expense, shall (a)
provide to MASTR the Swap Financial Disclosure, (b) secure another entity to
replace BSFP as party to this Agreement on terms substantially similar to this
Agreement and subject to prior notification to the Swap Rating Agencies, which
entity (or a guarantor therefor) meets or exceeds the Approved Rating Thresholds
and which satisfies the Rating Agency Condition and which entity is able to
comply with the requirements of Item 1115 of Regulation AB or (c) obtain a
guaranty of the BSFP’s obligations under this Agreement from an affiliate of the
BSFP that is able to comply with the financial information disclosure
requirements of Item 1115 of Regulation AB, such that disclosure provided in
respect of the affiliate will satisfy any disclosure requirements applicable
to
the Swap Provider, and cause such affiliate to provide Swap Financial
Disclosure. If permitted by Regulation AB, any required Swap Financial
Disclosure may be provided by incorporation by reference from reports filed
pursuant to the Exchange Act.
(iv) BSFP
agrees that, in the event that BSFP provides Swap Financial Disclosure to MASTR
in accordance with clause (iii)(a) of paragraph 17 or causes its affiliate
to
provide Swap Financial Disclosure to MASTR in accordance with clause (iii)(c)
of
paragraph 17, it will indemnify and hold harmless MASTR, its respective
directors or officers and any person controlling MASTR, from and against any
and
all losses, claims, damages and liabilities caused by any untrue statement
or
alleged untrue statement of a material fact contained in such Swap Financial
Disclosure or caused by any omission or alleged omission to state in such Swap
Financial Disclosure a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
18)
Transfer,
Amendment and Assignment.
No
transfer, amendment, waiver, supplement, assignment or other modification of
this Transaction shall be permitted by either party unless each of S&P and
▇▇▇▇▇’▇ has been provided prior notice of the same and each of S&P and
▇▇▇▇▇’▇ confirms in writing (including by facsimile transmission) that it will
not downgrade, qualify, withdraw or otherwise modify its then-current rating
of
the Certificates.
NEITHER
THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE BEAR
▇▇▇▇▇▇▇ COMPANIES INC. OTHER THAN BSFP IS AN OBLIGOR OR A CREDIT SUPPORT
PROVIDER ON THIS AGREEMENT.
|
5.
|
Account
Details and Settlement Information:
|
Payments
to BSFP:
Citibank,
N.A., New York
ABA
Number: ▇▇▇-▇▇▇▇-▇▇, for the account of
Bear,
▇▇▇▇▇▇▇ Securities Corp.
Account
Number: 0925-3186, for further credit to
Bear
▇▇▇▇▇▇▇ Financial Products Inc.
Sub-account
Number: 102-04654-1-3
Attention:
Derivatives Department
Payments
to Counterparty:
▇▇▇▇▇
Fargo Bank, N.A.
ABA
Number: 121-000-248Account Number: ▇▇▇▇▇▇▇▇▇▇
Account
Name: Corporate Trust Clearing
FFC:
50892502
|
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument.
Counterparty
hereby agrees to check this Confirmation and to confirm that the foregoing
correctly sets forth the terms of the Transaction by signing in the space
provided below and returning to BSFP a facsimile of the fully-executed
Confirmation to ▇▇▇-▇▇▇-▇▇▇▇.
For
inquiries regarding U.S. Transactions, please contact
▇▇▇▇▇ ▇▇▇▇▇▇
by
telephone at ▇▇▇-▇▇▇-▇▇▇▇.
For all
other inquiries please contact Derivatives
Documentation by
telephone at ▇▇▇-▇-▇▇▇-▇▇▇▇.
Originals will be provided for your execution upon your request.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
BEAR
▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
By: ______________________________________
Name:
Title:
Counterparty,
acting through its duly authorized signatory, hereby agrees to, accepts and
confirms the terms of the foregoing as of the Trade Date.
▇▇▇▇▇
FARGO BANK, N.A., NOT INDIVIDUALLY, BUT SOLELY AS SUPPLEMENTAL INTEREST TRUST
TRUSTEE FOR THE SUPPLEMENTAL INTEREST TRUST WITH RESPECT TO THE MASTR ASSET
BACKED SECURITIES TRUST 2006-AM1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-AM1
By: ______________________________________
Name:
Title:
lm
SCHEDULE
I
(all
such
dates subject to adjustment in accordance with the Business Day
Convention)
|
From
and including
|
To
but excluding
|
Notional
Amount
(USD)
|
Cap
Rate
(%)
|
Ceiling
Rate
(%)
|
|
Effective
Date
|
1/25/2007
|
14,724.21
|
4.656
|
5.824
|
|
1/25/2007
|
2/25/2007
|
35,817.57
|
4.655
|
5.929
|
|
2/25/2007
|
3/25/2007
|
55,177.78
|
4.648
|
6.005
|
|
3/25/2007
|
4/25/2007
|
72,909.00
|
4.619
|
6.024
|
|
4/25/2007
|
5/25/2007
|
89,109.79
|
4.613
|
6.101
|
|
5/25/2007
|
6/25/2007
|
103,873.37
|
4.608
|
6.181
|
|
6/25/2007
|
7/25/2007
|
117,287.89
|
4.605
|
6.258
|
|
7/25/2007
|
8/25/2007
|
129,436.69
|
4.600
|
6.339
|
|
8/25/2007
|
9/25/2007
|
140,415.39
|
4.599
|
6.405
|
|
9/25/2007
|
10/25/2007
|
160,934.34
|
4.611
|
6.470
|
|
10/25/2007
|
11/25/2007
|
185,599.68
|
4.608
|
6.531
|
|
11/25/2007
|
12/25/2007
|
205,043.73
|
4.610
|
6.605
|
|
12/25/2007
|
1/25/2008
|
219,960.41
|
4.630
|
6.720
|
|
1/25/2008
|
2/25/2008
|
230,964.83
|
5.824
|
6.824
|
|
2/25/2008
|
3/25/2008
|
235,821.55
|
5.928
|
6.928
|
|
3/25/2008
|
4/25/2008
|
236,420.76
|
6.033
|
7.033
|
|
4/25/2008
|
5/25/2008
|
236,371.66
|
6.049
|
7.137
|
|
5/25/2008
|
6/25/2008
|
471,081.21
|
6.083
|
7.241
|
|
6/25/2008
|
7/25/2008
|
455,692.19
|
6.128
|
7.345
|
|
7/25/2008
|
8/25/2008
|
440,684.20
|
6.155
|
7.449
|
|
8/25/2008
|
9/25/2008
|
426,052.17
|
6.189
|
7.553
|
|
9/25/2008
|
10/25/2008
|
411,790.73
|
6.235
|
7.658
|
|
10/25/2008
|
11/25/2008
|
397,894.32
|
6.265
|
7.762
|
|
11/25/2008
|
12/25/2008
|
393,975.53
|
6.301
|
7.866
|
|
12/25/2008
|
1/25/2009
|
380,214.98
|
6.361
|
7.970
|
|
1/25/2009
|
2/25/2009
|
366,836.33
|
6.390
|
8.033
|
|
2/25/2009
|
3/25/2009
|
353,831.41
|
6.411
|
8.095
|
|
3/25/2009
|
4/25/2009
|
359,010.86
|
6.439
|
8.158
|
|
4/25/2009
|
5/25/2009
|
357,141.02
|
6.464
|
8.220
|
|
5/25/2009
|
6/25/2009
|
346,587.63
|
6.491
|
8.283
|
|
6/25/2009
|
7/25/2009
|
336,327.88
|
6.519
|
8.345
|
|
7/25/2009
|
8/25/2009
|
326,354.98
|
6.546
|
8.408
|
|
8/25/2009
|
9/25/2009
|
316,662.31
|
6.573
|
8.470
|
|
9/25/2009
|
10/25/2009
|
393,957.79
|
6.600
|
9.648
|
|
10/25/2009
|
11/25/2009
|
381,089.63
|
6.625
|
9.733
|
|
11/25/2009
|
12/25/2009
|
368,652.20
|
6.652
|
9.820
|
|
12/25/2009
|
1/25/2010
|
356,630.63
|
6.691
|
9.953
|
|
1/25/2010
|
2/25/2010
|
345,010.76
|
6.712
|
10.030
|
|
2/25/2010
|
3/25/2010
|
333,778.88
|
6.731
|
10.098
|
|
3/25/2010
|
4/25/2010
|
322,921.80
|
6.751
|
10.170
|
|
4/25/2010
|
5/25/2010
|
312,426.76
|
6.773
|
10.250
|
|
5/25/2010
|
6/25/2010
|
302,281.46
|
6.796
|
10.327
|
|
6/25/2010
|
7/25/2010
|
290,339.04
|
6.817
|
10.402
|
|
7/25/2010
|
8/25/2010
|
275,310.18
|
6.840
|
10.483
|
|
8/25/2010
|
9/25/2010
|
260,289.68
|
6.861
|
10.556
|
|
9/25/2010
|
10/25/2010
|
245,277.68
|
6.883
|
10.651
|
|
10/25/2010
|
11/25/2010
|
230,274.35
|
6.903
|
10.718
|
|
11/25/2010
|
12/25/2010
|
215,307.59
|
6.927
|
10.800
|
|
12/25/2010
|
1/25/2011
|
200,347.86
|
6.957
|
10.899
|
|
1/25/2011
|
2/25/2011
|
185,395.31
|
6.977
|
10.969
|
|
2/25/2011
|
3/25/2011
|
177,304.72
|
6.987
|
11.047
|
|
3/25/2011
|
4/25/2011
|
169,218.07
|
6.997
|
11.098
|
|
4/25/2011
|
5/25/2011
|
161,135.42
|
7.014
|
11.164
|
|
5/25/2011
|
6/25/2011
|
155,546.01
|
7.026
|
11.220
|
|
6/25/2011
|
7/25/2011
|
150,089.97
|
7.032
|
11.288
|
|
7/25/2011
|
8/25/2011
|
144,762.86
|
7.048
|
11.349
|
|
8/25/2011
|
9/25/2011
|
139,560.39
|
7.066
|
11.412
|
|
9/25/2011
|
10/25/2011
|
134,478.43
|
7.090
|
11.493
|
|
10/25/2011
|
11/25/2011
|
129,512.97
|
7.108
|
11.555
|
|
11/25/2011
|
12/25/2011
|
124,660.65
|
7.123
|
11.613
|
|
12/25/2011
|
Termination
Date
|
120,612.32
|
7.146
|
11.696
|
EXHIBIT
M
FORM
OF
INTEREST RATE SWAP AGREEMENT
BEAR ▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
|
DATE: |
February 27, 2006 |
|
|
|
|
TO: |
▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as Supplemental Interest Trust Trustee for the Supplemental Interest Trust with respect to the MASTR Asset Backed Securities Trust 2006-AM1, Mortgage Pass-Through Certificates, Series 2006-AM1 |
|
ATTENTION: |
Client Manager – MABS 2006-AM1 |
|
TELEPHONE: |
▇▇▇-▇▇▇-▇▇▇▇ |
|
FACSIMILE: |
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
|
FROM: |
Derivatives Documentation |
|
TELEPHONE: |
▇▇▇-▇▇▇-▇▇▇▇ |
|
FACSIMILE: |
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
|
SUBJECT: |
Fixed Income Derivatives Confirmation and Agreement |
|
|
|
|
REFERENCE NUMBER: |
FXNEC7891 |
|
|
|
The purpose of this letter agreement ("Agreement") is to confirm the terms and conditions of the current Transaction entered into on the Trade Date specified below (the "Current Transaction") between Bear ▇▇▇▇▇▇▇ Financial Products Inc. ("BSFP") and ▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as Supplemental Interest Trust Trustee (the “Supplemental Interest Trust Trustee”) for the Supplemental Interest Trust with respect to the MASTR Asset Backed Securities Trust 2006-AM1, Mortgage Pass-Through Certificates, Series 2006-AM1 ("Counterparty") under the Pooling and Servicing Agreement, dated as of February 1, 2006 among ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Trust Administrator, Mortgage Asset Securitization Transactions, Inc., as Depositor, Ocwen Loan Servicing, LLC, as Servicer and U.S. Bank National Association, as Trustee (the “Trustee”) (the “Pooling and Servicing Agreement”). This letter agreement constitutes the sole and complete "Confirmation," as referred to in the "ISDA Form Master Agreement" (as defined below), as well as a “Schedule” as referred to in the ISDA Form Master Agreement.
1. This Agreement is subject to the 2000 ISDA Definitions (the “Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). You and we have agreed to enter into this Agreement in lieu of negotiating a Schedule to the 1992 ISDA Master Agreement (Multicurrency—Cross Border) form (the "ISDA Form Master Agreement") but, rather, an ISDA Form Master Agreement shall be deemed to have been executed by you and us on the date we entered into the Transaction. In the event of any inconsistency between the provisions of this Agreement and the Definitions or the ISDA Form Master Agreement, this Agreement shall prevail for purposes of the Transaction. Terms capitalized but not defined herein shall have the meanings attributed to them in the Pooling and Servicing Agreement.
|
2. |
The terms of the particular Transaction to which this Confirmation relates are as follows: |
|
|
Notional Amount: |
With respect to any Calculation Period, the amount set forth for such period in Schedule I attached hereto. |
|
|
Trade Date: |
February 16, 2006 |
|
|
Termination Date: |
September 25, 2009, provided, however, for the purposes of determining the Floating Amount to be paid in respect of the final Calculation Period, such date shall be subject to adjustment in accordance with the Business Day Convention. |
|
|
Fixed Amount (Premium): |
|
|
|
Fixed Rate Payer: |
Counterparty |
Fixed Rate Payer
|
|
Effective Date: |
February 25, 2006 |
Fixed Rate Payer
|
|
Period End Dates: |
The 25th calendar day of each month during the Term of this |
Transaction, commencing March 25, 2006 and ending on the Termination Date, with No Adjustment.
Fixed Rate Payer
|
|
Payment Dates: |
Early Payment shall be applicable. The Fixed Rate Payer |
Payment Date shall be two Business Days prior to each Fixed Rate Payer Period End Date.
|
|
Fixed Rate: |
4.75500% |
|
|
Fixed Amount: |
To be determined in accordance with the following Formula: |
250*Fixed Rate*Notional Amount*Fixed Rate Day Count Fraction
Fixed Rate Day
|
|
Count Fraction: |
30/360 |
|
|
Floating Amounts: |
|
|
|
Floating Rate Payer: |
BSFP |
Floating Rate Payer
|
|
Effective Date: |
February 27, 2006 |
Floating Rate Payer
|
|
Period End Dates: |
The 25th calendar day of each month during the Term of |
this Transaction, commencing March 25, 2006 and ending on the Termination Date, subject to adjustment in accordance with the Business Day Convention.
Floating Rate Payer
|
|
Payment Dates: |
Early Payment shall be applicable. The Floating Rate Payer |
Payment Dates shall be two Business Days preceding each Floating Rate Payer Period End Date.
|
|
Floating Rate Option: |
USD-LIBOR-BBA |
|
|
Floating Amount: |
To be determined in accordance with the following Formula: |
250*Floating Rate Option*Notional Amount*Floating Rate Day Count Fraction
|
|
Designated Maturity: |
One month |
Floating Rate Day
|
|
Count Fraction: |
Actual/360 |
|
|
Reset Dates: |
The first day of each Calculation Period. |
|
|
Compounding: |
Inapplicable |
|
|
Business Days: |
New York |
|
|
Business Day Convention: |
Following |
|
3. |
Additional Provisions: Each party hereto is hereby advised and acknowledges that the other party has engaged in (or refrained from engaging in) substantial financial transactions and has taken (or refrained from taking) other material actions in reliance upon the entry by the parties into the Transaction being entered into on the terms and conditions set forth herein and in the Confirmation relating to such Transaction, as applicable. This paragraph shall be deemed repeated on the trade date of each Transaction. |
|
4. |
Provisions Deemed Incorporated in a Schedule to the ISDA Form Master Agreement: |
|
1) |
The parties agree that subparagraph (ii) of Section 2(c) of the ISDA Form Master Agreement will apply to any Transaction. |
2) Termination Provisions. Notwithstanding the provisions of paragraph 9 below, for purposes of the ISDA Form Master Agreement:
|
(a) |
"Specified Entity" is not applicable to BSFP or Counterparty for any purpose. |
(b) “Breach of Agreement” provision of Section 5(a)(ii) will not apply to BSFP or Counterparty.
(c) “Credit Support Default” provisions of Section 5(a)(iii) will not apply to Counterparty and will not apply to BSFP unless BSFP has obtained a guarantee or posted collateral pursuant to paragraph 16 below.
|
(d) |
“Misrepresentation” provisions or Section 5(a)(iv) will not apply to BSFP or Counterparty. |
(e) "Specified Transaction" is not applicable to BSFP or Counterparty for any purpose, and, accordingly, Section 5(a)(v) shall not apply to BSFP or Counterparty.
(f) The "Cross Default" provisions of Section 5(a)(vi) will not apply to BSFP or to Counterparty.
(g) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply to BSFP or Counterparty.
|
(h) |
The “Bankruptcy” provision of Section 5(a)(vii)(2) will be inapplicable to Counterparty. |
(i) The "Automatic Early Termination" provision of Section 6(a) will not apply to BSFP or to Counterparty.
|
(j) |
Payments on Early Termination. For the purpose of Section 6(e): | ||
|
|
(i) |
Market Quotation will apply. |
|
|
|
(ii) |
The Second Method will apply. |
|
(k) |
"Termination Currency" means United States Dollars. |
3) Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e) of the ISDA Form Master Agreement, each of BSFP and the Counterparty will make the following representations:
It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the ISDA Form Master Agreement) to be made by it to the other party under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant to Section 3(f) of the ISDA Form Master Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(iii) of the ISDA Form Master Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(iii) of the ISDA Form Master Agreement; and
(iii) the satisfaction of the agreement of the other party contained in Section 4(d) of the ISDA Form Master Agreement, provided that it shall not be a breach of this representation where reliance is placed on clause (ii) and the other party does not deliver a form or document under Section 4(a)(iii) of the ISDA Form Master Agreement by reason of material prejudice to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of the ISDA Form Master Agreement, each of BSFP and the Counterparty make the following representations.
The following representation will apply to BSFP:
BSFP is a corporation organized under the laws of the State of Delaware and its U.S. taxpayer identification number is ▇▇-▇▇▇▇▇▇▇.
The following representation will apply to the Counterparty:
Counterparty represents that it is the Supplemental Interest Trust Trustee under the Pooling and Servicing Agreement.
4) [Reserved]
5) Documents to be Delivered. For the purpose of Section 4(a):
|
(1) |
Tax forms, documents, or certificates to be delivered are: |
| ||
|
Party required to deliver document |
Form/Document/ Certificate |
Date by which to be delivered | ||
|
BSFP and the Counterparty |
Any document required or reasonably requested to allow the other party to make payments under this Agreement without any deduction or withholding for or on the account of any Tax or with such deduction or withholding at a reduced rate |
Promptly after the earlier of (i) reasonable demand by either party or (ii) learning that such form or document is required | ||
|
(2) |
Other documents to be delivered are: |
|
Party required to deliver document |
Form/Document/ Certificate |
Date by which to be delivered |
Covered by Section 3(d) Representation |
|
BSFP and the Counterparty |
Any documents required by the receiving party to evidence the authority of the delivering party or its Credit Support Provider, if any, for it to execute and deliver this Agreement, any Confirmation , and any Credit Support Documents to which it is a party, and to evidence the authority of the delivering party or its Credit Support Provider to perform its obligations under this Agreement, such Confirmation and/or Credit Support Document, as the case may be |
Upon the execution and delivery of this Agreement and such Confirmation |
Yes |
|
BSFP and the Counterparty |
A certificate of an authorized officer of the party, as to the incumbency and authority of the respective officers of the party signing this Agreement, any relevant Credit Support Document, or any Confirmation, as the case may be |
Upon the execution and delivery of this Agreement and such Confirmation |
Yes |
6) Miscellaneous. Miscellaneous
(a) Address for Notices: For the purposes of Section 12(a) of the ISDA Form Master Agreement:
Address for notices or communications to BSFP:
|
|
Address: |
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
|
|
Attention: |
DPC Manager |
| |
|
|
Facsimile: |
(▇▇▇) ▇▇▇-▇▇▇▇ |
| |
With a copy to:
|
|
Address: |
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
|
|
Attention: |
Derivative Operations - 7th Floor |
| |
|
|
Facsimile: |
(▇▇▇) ▇▇▇-▇▇▇▇ |
| |
(For all purposes)
Address for notices or communications to the Counterparty:
|
|
Address: |
▇▇▇▇▇ Fargo Bank, N.A. |
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Attention: |
Client Manager – MABS 2006-AM1 |
|
|
Facsimile: |
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
Phone: |
▇▇▇-▇▇▇-▇▇▇▇ |
(For all purposes)
|
(b) |
Process Agent. For the purpose of Section 13(c) of the ISDA Form Master Agreement: |
|
|
BSFP appoints as its |
| |
|
|
Process Agent: |
Not Applicable | |
|
|
The Counterparty appoints as its |
| |
|
|
Process Agent: |
Not Applicable | |
(c) Offices. The provisions of Section 10(a) of the ISDA Form Master Agreement will not apply to this Agreement; neither BSFP nor the Counterparty have any Offices other than as set forth in the Notices Section and BSFP agrees that, for purposes of Section 6(b) of the ISDA Form Master Agreement, it shall not in future have any Office other than one in the United States.
|
(d) |
Multibranch Party. For the purpose of Section 10(c) of the ISDA Form Master Agreement: |
BSFP is not a Multibranch Party.
The Counterparty is not a Multibranch Party.
|
(e) |
Calculation Agent. The Calculation Agent is BSFP. |
|
(f) |
Credit Support Document. |
BSFP: Not applicable, except for any guarantee or contingent agreement delivered pursuant to paragraph 16 below.
|
|
The Counterparty: |
Not Applicable |
|
(g) |
Credit Support Provider. |
BSFP: Not Applicable for BSFP for so long as no Credit Support Document is delivered under paragraph 16 below, otherwise, the party that is the primary obligor under the Credit Support Document.
The Counterparty: Not Applicable
(h) Governing Law. The parties to this Agreement hereby agree that the law of the State of New York shall govern their rights and duties in whole without regard to the conflict of law provisions thereof other than New York General Obligations Law Sections 5-1401 and 5-1402.
(i) Severability. If any term, provision, covenant, or condition of this Agreement, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable (in whole or in part) for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid or unenforceable portion eliminated, so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Agreement and the deletion of such portion of this Agreement will not substantially impair the respective benefits or expectations of the parties.
The parties shall endeavor to engage in good faith negotiations to replace any invalid or unenforceable term, provision, covenant or condition with a valid or enforceable term, provision, covenant or condition, the economic effect of which comes as close as possible to that of the invalid or unenforceable term, provision, covenant or condition.
(j) Consent to Recording. Each party hereto consents to the monitoring or recording, at any time and from time to time, by the other party of any and all communications between officers or employees of the parties, waives any further notice of such monitoring or recording, and agrees to notify its officers and employees of such monitoring or recording.
(k) Waiver of Jury Trial. Each party waives any right it may have to a trial by jury in respect of any Proceedings relating to this Agreement or any Credit Support Document.
7) "Affiliate". Each of BSFP and Counterparty shall be deemed to not have any Affiliates for purposes of this Agreement, including for purposes of Section 6(b)(ii) of the ISDA Form Master Agreement.
8) Section 3 of the ISDA Form Master Agreement is hereby amended by adding at the end thereof the following subsection (g):
|
|
“(g) |
Relationship Between Parties. |
Each party represents to the other party on each date when it enters into a Transaction that:--
(1) Nonreliance. It is not relying on any statement or representation of the other party regarding the Transaction (whether written or oral), other than the representations expressly made in this Agreement or the Confirmation in respect of that Transaction.
(2) Evaluation and Understanding.
|
|
(i) |
BSFP is acting for its own account and ▇▇▇▇▇ Fargo Bank, N.A., is acting as Supplemental Interest Trust Trustee under the Pooling and Servicing |
Agreement, and not for its own account. Each Party has made its own independent decisions to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisors as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction; it being understood that information and explanations related to the terms and conditions of this Transaction shall not be considered investment advice or a recommendation to enter into this Transaction. It has not received from the other party any assurance or guarantee as to the expected results of this Transaction.
|
|
(ii) |
It is capable of evaluating and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of this Transaction. It is also capable of assuming, and assumes, the financial and other risks of this Transaction. |
(iii) The other party is not acting as an agent or fiduciary or an advisor for it in respect of this Transaction.
(3) Purpose. It is an “eligible swap participant” as such term is defined in Section 35.1(b)(2) of the regulations (17 C.F.R 35) promulgated under, and an “eligible contract participant” as defined in Section 1(a)(12) of, the Commodity Exchange Act, as amended, and it is entering into the Transaction for the purposes of managing its borrowings or investments, hedging its underlying assets or liabilities or in connection with a line of business.”
9) Pooling and Servicing Agreement. BSFP hereby agrees that, notwithstanding any provision of this agreement to the contrary, Counterparty’s obligations to pay any amounts owing under this Agreement shall be subject to the Pooling and Servicing Agreement and BSFPS’s right to receive payment of such amounts shall be subject to the Pooling and Servicing Agreement.
10) Supplemental Interest Trust Trustee Liability Limitations. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by ▇▇▇▇▇ Fargo Bank, N.A. (“▇▇▇▇▇”), not individually or personally but solely as trustee on behalf of the Supplemental Interest Trust, (b) each of the representations, undertakings and agreements herein made on the part of the Counterparty is made and intended not as personal representations, undertakings and agreements by ▇▇▇▇▇ but is made and intended for the purpose of binding only the Counterparty, (c) nothing herein contained shall be construed as creating any liability on ▇▇▇▇▇, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto; provided that nothing in this paragraph shall relieve ▇▇▇▇▇ from performing its duties and obligations under the Pooling and Servicing Agreement in accordance with the standard of care set forth therein, (d) under no circumstances shall ▇▇▇▇▇ be personally liable for the payment of any indebtedness or expenses of the Counterparty or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Counterparty under this Agreement or any other related documents, other than due to its gross negligence or willful misconduct in performing the obligations of the Supplemental Interest Trust Trustee under the Pooling and Servicing Agreement, (e) any resignation or removal
of ▇▇▇▇▇ as trustee on behalf of the Supplemental Interest Trust shall require the assignment of this agreement to ▇▇▇▇▇’▇ replacement, and (f) ▇▇▇▇▇ has been directed, pursuant to the Pooling and Servicing Agreement, to enter into this Agreement and to perform its obligations hereunder.
11) Proceedings. BSFP shall not institute against or cause any other person to institute against, or join any other person in instituting against, Mortgage Asset Securitization Transactions, Inc., MASTR Asset Backed Securities Trust 2006-AM1, Mortgage Pass-Through Certificates, Series 2006-AM1 or Counterparty, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy, dissolution or similar law, for a period of one year and one day (or, if longer, the applicable preference period) following indefeasible payment in full of the MASTR Asset Backed Securities Trust 2006-AM1, Mortgage Pass-Through Certificates, Series 2006-AM1.
12) Set-off. Notwithstanding any provision of this Agreement or any other existing or future agreement, each party irrevocably waives any and all rights it may have to set off, net, recoup or otherwise withhold or suspend or condition payment or performance of any obligation between it and the other party hereunder against any obligation between it and the other party under any other agreements. The provisions for Set-off set forth in Section 6(e) of the ISDA Form Master Agreement shall not apply for purposes of this Transaction.
13) Third party Beneficiary. Not Applicable.
14) Additional Termination Event. The following Additional Termination Event will apply:
(i) BSFP fails to comply with the Rating Agency Downgrade provision as set forth in Section 16 below. For purposes of this Agreement, BSFP shall be the sole Affected Party with respect to such Additional Termination Event.
(ii) If the Trustee is unable to pay its Class A Certificates or fails or admits in writing its inability to pay its Class A Certificates as they become due, then an Additional Termination Event shall have occurred with respect to Counterparty and Counterparty shall be the sole Affected Party with respect to such Additional Termination Event.
(iii) If, at any time, the Majority Class CE Certificateholder or the Master Servicer purchases the Mortgage Loans pursuant to Section 10.01 of the Pooling and Servicing Agreement, then an Additional Termination Event shall have occurred with respect to Counterparty and Counterparty shall be the sole Affected Party with respect to such Additional Termination Event; provided, however, that notwithstanding the provisions of section 6(b)(iv) of the ISDA Form Master Agreement, either BSFP or Counterparty may designate an Early Termination Date (such date shall not be prior to the final Distribution Date under the Pooling and Servicing Agreement) in respect of this Additional Termination Event.
(iv) If, upon the occurrence of a Swap Disclosure Event (as defined in Section 17 below) BSFP has not, within ten (10) days after such Swap Disclosure Event complied with any of the provisions set forth in Section 17 below, then an Additional Termination Event shall
have occurred with respect to BSFP and BSFP shall be the sole Affected Party with respect to such Additional Termination Event.
15) Amendment to the ISDA Form. The “Failure to Pay or Deliver” provision in Section 5(a)(i) is hereby amended by deleting the word “third” in the third line thereof and inserting the word “second” in place thereof.
16) Rating Agency Downgrade. In the event that BSFP’s long-term unsecured and unsubordinated debt rating is reduced below “AA-” by S&P or its long-term unsecured and unsubordinated debt rating is withdrawn or reduced below “Aa3” by ▇▇▇▇▇’▇ (and together with S&P, the “Swap Rating Agencies”, and such rating thresholds, “Approved Rating Thresholds”), then within 30 days after such rating withdrawal or downgrade (unless, within 30 days after such withdrawal or downgrade, each such Swap Rating Agency, as applicable, has reconfirmed the rating of the Certificates, which was in effect immediately prior to such withdrawal or downgrade), BSFP shall, at its own expense, subject to the Rating Agency Condition, either (i) seek another entity to replace BSFP as party to this Agreement that meets or exceeds the Approved Rating Thresholds on terms substantially similar to this Agreement or (ii) obtain a guaranty of, or a contingent agreement of another person with the Approved Rating Thresholds, to honor, BSFP’s obligations under this Agreement. BSFP’s failure to do any of the foregoing shall, at the Counterparty’s option, constitute an Additional Termination Event with BSFP as the Affected Party. In the event that BSFP’s long-term unsecured and unsubordinated debt rating is withdrawn or reduced below “BBB-” by S&P, then within 10 Business Days after such rating withdrawal or downgrade, BSFP shall, subject to the Rating Agency Condition and at its own expense, either (i) secure another entity to replace BSFP as party to this Agreement that meets or exceeds the Approved Rating Thresholds on terms substantially similar to this Agreement or (ii) obtain a guaranty of, or a contingent agreement of another person with the Approved Rating Thresholds, to honor, BSFP’s obligations under this Agreement. For purposes of this provision, “Rating Agency Condition” means, with respect to any particular proposed act or omission to act hereunder that the party acting or failing to act must consult with each of the Swap Rating Agencies then providing a rating of the Certificates and receive from each of the Swap Rating Agencies a prior written confirmation that the proposed action or inaction would not cause a downgrade or withdrawal of the then-current rating of the Certificates.
17) Compliance with Regulation AB.
(i) BSFP agrees and acknowledges that Mortgage Asset Securitization Transactions, Inc. (“MASTR”) is required under Regulation AB under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (“Regulation AB”), to disclose certain financial information regarding BSFP or its group of affiliated entities, if applicable, depending on the aggregate “significance percentage” of this Agreement and any other derivative contracts between BSFP or its group of affiliated entities, if applicable, and Counterparty, as calculated from time to time in accordance with Item 1115 of Regulation AB.
(ii) It shall be a swap disclosure event (“Swap Disclosure Event”) if, on any Business Day after the date hereof, MASTR requests from BSFP the applicable financial information described in Item 1115 of Regulation AB (such request to be based on a reasonable determination by MASTR, in
good faith, that such information is required under Regulation AB) (the “Swap Financial Disclosure”).
(iii) Upon the occurrence of a Swap Disclosure Event, BSFP, at its own expense, shall (a) provide to MASTR the Swap Financial Disclosure, (b) secure another entity to replace BSFP as party to this Agreement on terms substantially similar to this Agreement and subject to prior notification to the Swap Rating Agencies, which entity (or a guarantor therefor) meets or exceeds the Approved Rating Thresholds and which satisfies the Rating Agency Condition and which entity is able to comply with the requirements of Item 1115 of Regulation AB or (c) obtain a guaranty of the BSFP’s obligations under this Agreement from an affiliate of the BSFP that is able to comply with the financial information disclosure requirements of Item 1115 of Regulation AB, such that disclosure provided in respect of the affiliate will satisfy any disclosure requirements applicable to the Swap Provider, and cause such affiliate to provide Swap Financial Disclosure. If permitted by Regulation AB, any required Swap Financial Disclosure may be provided by incorporation by reference from reports filed pursuant to the Exchange Act.
(iv) BSFP agrees that, in the event that BSFP provides Swap Financial Disclosure to MASTR in accordance with clause (iii)(a) of paragraph 17 or causes its affiliate to provide Swap Financial Disclosure to MASTR in accordance with clause (iii)(c) of paragraph 17, it will indemnify and hold harmless MASTR, its respective directors or officers and any person controlling MASTR, from and against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in such Swap Financial Disclosure or caused by any omission or alleged omission to state in such Swap Financial Disclosure a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
18) Transfer, Amendment and Assignment. No transfer, amendment, waiver, supplement, assignment or other modification of this Transaction shall be permitted by either party unless each of S&P and ▇▇▇▇▇’▇ has been provided prior notice of the same and each of S&P and ▇▇▇▇▇’▇ confirms in writing (including by facsimile transmission) that it will not downgrade, qualify, withdraw or otherwise modify its then-current rating of the Certificates.
19) Non-Recourse. Notwithstanding any provision herein or in the ISDA Form Master Agreement to the contrary, the obligations of Counterparty hereunder are limited recourse obligations of Counterparty, payable solely from the Swap Account and the proceeds thereof, in accordance with the terms of the Pooling and Servicing Agreement. In the event that the Swap Account and proceeds thereof should be insufficient to satisfy all claims outstanding and following the realization of the Swap Account and the proceeds thereof, any claims against or obligations of Counterparty under the ISDA Form Master Agreement or any other confirmation thereunder still outstanding shall be extinguished and thereafter not revive. The Supplemental Interest Trust Trustee shall not have liability for any failure or delay in making a payment hereunder to BSFP due to any failure or delay in receiving amounts in the Swap Account from the Trust created pursuant to the Pooling and Servicing Agreement.
NEITHER THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC.
OTHER THAN BSFP IS AN OBLIGOR OR A CREDIT SUPPORT PROVIDER ON THIS AGREEMENT.
|
5. |
Account Details and Settlement Information: |
Payments to BSFP:
Payments to Counterparty: ▇▇▇▇▇ Fargo Bank, N.A. ABA Number: 121-000-248Account Number: ▇▇▇▇▇▇▇▇▇▇ Account Name: Corporate Trust Clearing FFC: 50892501 |
This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the foregoing correctly sets forth the terms of the Transaction by signing in the space provided below and returning to BSFP a facsimile of the fully-executed Confirmation to ▇▇▇-▇▇▇-▇▇▇▇. For inquiries regarding U.S. Transactions, please contact ▇▇▇▇▇ ▇▇▇▇▇▇ by telephone at ▇▇▇-▇▇▇-▇▇▇▇. For all other inquiries please contact Derivatives Documentation by telephone at ▇▇▇-▇-▇▇▇-▇▇▇▇. Originals will be provided for your execution upon your request.
We are very pleased to have executed this Transaction with you and we look forward to completing other transactions with you in the near future.
Very truly yours,
BEAR ▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
|
By: |
_ _____________________________________ | |
|
Name: |
| |
Title:
Counterparty, acting through its duly authorized signatory, hereby agrees to, accepts and confirms the terms of the foregoing as of the Trade Date.
▇▇▇▇▇ FARGO BANK, N.A., NOT INDIVIDUALLY, BUT SOLELY AS SUPPLEMENTAL INTEREST TRUST TRUSTEE FOR THE SUPPLEMENTAL INTEREST TRUST WITH RESPECT TO THE MASTR ASSET BACKED SECURITIES TRUST 2006-AM1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AM1
|
By: |
___ ___________________________________ |
|
Name: |
|
Title:
lm
SCHEDULE I
(all such dates subject to adjustment in accordance with the Business Day Convention)
|
From and including |
To but excluding |
Notional Amount |
|
Effective Date |
3/25/2006 |
1,624,872.00 |
|
3/25/2006 |
4/25/2006 |
1,607,068.02 |
|
4/25/2006 |
5/25/2006 |
1,585,606.62 |
|
5/25/2006 |
6/25/2006 |
1,560,549.00 |
|
6/25/2006 |
7/25/2006 |
1,531,955.25 |
|
7/25/2006 |
8/25/2006 |
1,499,909.41 |
|
8/25/2006 |
9/25/2006 |
1,464,519.64 |
|
9/25/2006 |
10/25/2006 |
1,425,918.19 |
|
10/25/2006 |
11/25/2006 |
1,384,274.19 |
|
11/25/2006 |
12/25/2006 |
1,342,538.57 |
|
12/25/2006 |
1/25/2007 |
1,287,278.24 |
|
1/25/2007 |
2/25/2007 |
1,226,816.32 |
|
2/25/2007 |
3/25/2007 |
1,169,221.38 |
|
3/25/2007 |
4/25/2007 |
1,114,356.45 |
|
4/25/2007 |
5/25/2007 |
1,062,091.15 |
|
5/25/2007 |
6/25/2007 |
1,012,301.36 |
|
6/25/2007 |
7/25/2007 |
964,868.92 |
|
7/25/2007 |
8/25/2007 |
919,681.35 |
|
8/25/2007 |
9/25/2007 |
876,588.89 |
|
9/25/2007 |
10/25/2007 |
808,990.53 |
|
10/25/2007 |
11/25/2007 |
731,282.17 |
|
11/25/2007 |
12/25/2007 |
661,707.70 |
|
12/25/2007 |
1/25/2008 |
599,418.60 |
|
1/25/2008 |
2/25/2008 |
543,606.14 |
|
2/25/2008 |
3/25/2008 |
505,580.00 |
|
3/25/2008 |
4/25/2008 |
478,018.09 |
|
4/25/2008 |
5/25/2008 |
452,029.25 |
|
5/25/2008 |
6/25/2008 |
192,181.78 |
|
6/25/2008 |
7/25/2008 |
183,297.09 |
|
7/25/2008 |
8/25/2008 |
174,851.71 |
|
8/25/2008 |
9/25/2008 |
166,822.54 |
|
9/25/2008 |
10/25/2008 |
159,187.78 |
|
10/25/2008 |
11/25/2008 |
151,926.89 |
|
11/25/2008 |
12/25/2008 |
135,408.26 |
|
12/25/2008 |
1/25/2009 |
129,421.90 |
|
1/25/2009 |
2/25/2009 |
123,718.56 |
|
2/25/2009 |
3/25/2009 |
118,283.93 |
|
3/25/2009 |
4/25/2009 |
113,104.47 |
|
4/25/2009 |
5/25/2009 |
108,167.38 |
|
5/25/2009 |
6/25/2009 |
103,460.51 |
|
6/25/2009 |
7/25/2009 |
98,972.38 |
|
7/25/2009 |
8/25/2009 |
94,692.11 |
|
8/25/2009 |
Termination Date |
90,609.40 |
EXHIBIT
N
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer - transaction party having borrower contact
Master
Servicer - aggregator of pool assets
Trust
Administrator - waterfall calculator (may be the Master Servicer)
Back-up
Servicer - named in the transaction (in the event a Back up Servicer becomes
the
Primary Servicer, follow Primary Servicer obligations)
Custodian
- safe keeper of pool assets
Paying
Agent - distributor of funds to ultimate investor
Note:
The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular transaction, the
trustee may perform the “paying agent” and “securities administrator” functions,
while in another transaction, the securities administrator may perform these
functions.
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key: X
- obligation
[X]
- under consideration for obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Master
Servicer
|
Custodian
|
|
General
Servicing Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
|
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
[X]
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
X
|
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
X
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
EXHIBIT
O
FORM
10-D, FORM 8-K AND FORM 10-K REPORTING RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trust
Administrator pursuant to Section 4.07(a)(iv). If the Trust Administrator is
indicated below as to any item, then the Trust Administrator is primarily
responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “4.02 statement” are required to be
included in the periodic Distribution Date statement under Section 4.02,
provided by the Trust Administrator based on information received from the
Master Servicer; and b) items marked “Form 10-D report” are required to be in
the Form 10-D report but not the 4.02 statement, provided by the party
indicated. Information under all other Items of Form 10-D is to be included
in
the Form 10-D report.
|
Form
|
Item
|
Description
|
Responsible
Party
|
|
10-D
|
Must
be filed within 15 days of the Distribution Date.
|
||
|
1
|
Distribution
and Pool Performance Information
|
||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
|||
|
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
4.02
statement
|
||
|
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
4.02
statement
|
||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.02
statement
|
||
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
4.02
statement
|
||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of the
general
purpose of such payments and the party receiving such
payments.
|
4.02
statement
|
||
|
(iii)
Principal, interest and other distributions accrued and paid on the
asset-backed securities by type and by class or series and any principal
or interest shortfalls or carryovers.
|
4.02
statement
|
||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.02
statement
|
||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.02
statement
|
||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
4.02
statement
|
||
|
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
4.02
statement
|
||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.02
statement
|
||
|
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term, pool
factors and prepayment amounts.
|
4.02
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
|
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.02
statement.
Form
10-D report: Depositor
|
||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.02
statement
|
||
|
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
4.02
statement
|
||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Servicer
|
||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.02
statement
|
||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool.
Information
regarding any pool asset changes (other than in connection with a
pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Depositor
Form
10-D report: Depositor or Servicer
Form
10-D report: Depositor
|
||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
Depositor
|
||
|
2
|
Legal
Proceedings
|
||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Seller
Depositor
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
|
(i)
All parties to the Pooling and Servicing Agreement, as to themselves,
(ii)
the Trustee and Master Servicer as to the issuing entity, (iii) the
Servicer as to the Sponsor and 1110(b) originator or (iv) the Depositor
as
to any 1100(d)(1) party
|
||
|
3
|
Sales
of Securities and Use of Proceeds
|
||
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
||
|
4
|
Defaults
Upon Senior Securities
|
||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice).
|
Trust
Administrator
|
||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
||
|
Information
from Item 4 of Part II of Form 10-Q
|
Trust
Administrator
|
||
|
6
|
Significant
Obligors of Pool Assets
|
||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|||
|
7
|
Significant
Enhancement Provider Information
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Trust
Administrator
Depositor
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Trust
Administrator
Trust
Administrator
Depositor
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||
|
8
|
Other
Information
|
||
|
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below.
|
||
|
9
|
Exhibits
|
||
|
Distribution
report
|
Trust
Administrator
|
||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
|
1.01
|
Entry
into a Material Definitive Agreement
|
||
|
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Depositor
|
||
|
1.02
|
Termination
of a Material Definitive Agreement
|
||
|
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
Depositor
|
||
|
1.03
|
Bankruptcy
or Receivership
|
||
|
Disclosure
is required regarding the bankruptcy or receivership, if known to
the
Master Servicer, with respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, Trustee, Cap Provicer,
Custodian
|
Depositor
|
||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the 4.02 statement
|
Depositor/Trust
Administrator
|
||
|
3.03
|
Material
Modification to Rights of Security Holders
|
||
|
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
Trust
Administrator
|
||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
|
5.06
|
Change
in Shell Company Status
|
||
|
[Not
applicable to ABS issuers]
|
Depositor
|
||
|
6.01
|
ABS
Informational and Computational Material
|
||
|
[Not
included in reports to be filed under Section 4.07]
|
Depositor
|
||
|
6.02
|
Change
of Master Servicer, Servicer or Trustee
|
||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee. Any merger, consolidation or sale of
substantially all of the assets of the servicer, the servicer’s engagement
of any sub-servicer to perform or assist in the performance of any
of the
servicer’s obligations under the agreement. Reg AB disclosure about any
new servicer or trustee is also required.
|
Depositor
or Servicer
|
||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
||
|
6.04
|
Failure
to Make a Required Distribution
|
Trust
Administrator
|
|
|
6.05
|
Securities
Act Updating Disclosure
|
||
|
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
||
|
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
|
8.01
|
Other
Events
|
||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
Depositor
|
||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event (other than the
Trustee)
|
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
|
9B
|
Other
Information
|
||
|
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
|
15
|
Exhibits
and Financial Statement Schedules
|
||
|
Item
1112(b) - Significant
Obligor Financial Information
|
N/A
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Trust
Administrator Depositor
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Trust
Administrator Trust Administrator Depositor
|
||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Seller
Depositor
Trustee
Issuing
entity
Master
Servicer
Originator
Custodian
(only with respect to affiliations and relationships with the Sponsor,
Depositor or Issuing Entity)
Credit
Enhancer/Support Provider, if any
Significant
Obligor, if any
|
(i)
All parties to the Pooling and Servicing Agreement, as to themselves,
(ii)
the Trustee and Master Servicer as to the issuing entity, (iii) the
Servicer as to the Sponsor and 1110(b) originator or (iv) the Depositor
as
to any 1100(d)(1) party
|
||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Servicer,
Master Servicer, Trust Administrator, Custodian
|
||
|
Item
1123 -Servicer Compliance Statement
|
Master
Servicer, Servicer, Trust
Administrator
|
||
EXHIBIT
P
ADDITIONAL
DISCLOSURE NOTIFICATION
**SEND
VIA FAX TO [XXX-XXX-XXXX] AND VIA EMAIL TO [ ] AND VIA OVERNIGHT MAIL TO THE
ADDRESS IMMEDIATELY BELOW**
▇▇▇▇▇
Fargo Bank, N.A., as Trust Administrator
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Trust Services- [DEAL NAME]—SEC REPORT PROCESSING
RE:
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and Servicing Agreement, dated as
of
February 1, 2006, among Mortgage Asset Securitization Transactions, Inc. as
Depositor, ▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer and Trust Administrator,
Ocwen Loan Servicing, LLC as Servicer and U.S. Bank National Association as
Trustee, the undersigned, as [ ], hereby notifies you that certain events have
come to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
[NAME
OF
PARTY],
as
[role]
By:
__________________________
Name:
Title:
EXHIBIT
Q-1
FORM
OF DELINQUENCY REPORT
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan. Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
| · |
ASUM-Approved
Assumption
|
| · |
BAP-Borrower
Assistance Program
|
| · |
CO-
Charge Off
|
| · |
DIL-
Deed-in-Lieu
|
| · |
FFA-
Formal Forbearance Agreement
|
| · |
MOD-Loan
Modification
|
| · |
PRE-
Pre-Sale
|
| · |
SS-
Short Sale
|
| · |
MISC-Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
▇▇▇▇▇
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
| · |
Mortgagor
|
| · |
Tenant
|
| · |
Unknown
|
| · |
Vacant
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
Poor
|
| · |
Special
Hazard
|
| · |
Unknown
|
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
The
FNMA
Delinquent Status Code
field
should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
|
EXHIBIT
Q-2
FORM
OF MONTHLY REMITTANCE ADVICE
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
|
|
|
Action
Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|
|
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
EXHIBIT
Q-3
FORM
OF REALIZED LOSS REPORT
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
1.
2. The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1. The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation, an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
2. The
Total
Interest Due less the aggregate amount of servicing fee that would have been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
3.
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12. Complete
as applicable. Required documentation:
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history (to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and
WFB’s approved Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
3. Credits:
14-21. Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow
Agent / Attorney Letter
of
Proceeds
Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
23. The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show
the
amount in parenthesis ( ).
Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email Address:_____________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
(1) Actual
Unpaid Principal Balance of Mortgage
Loan
$
________________ (1)
(2) Interest
accrued at Net Rate
________________ (2)
(3) Accrued
Servicing Fees
________________ (3)
(4) Attorney's
Fees
________________ (4)
(5) Taxes
(see page 2)
________________ (5)
(6) Property
Maintenance
________________ (6)
(7) MI/Hazard
Insurance Premiums (see page 2)
________________ (7)
(8) Utility
Expenses
________________ (8)
(9) Appraisal/BPO
________________ (9)
(10) Property
Inspections
________________ (10)
(11) FC
Costs/Other Legal Expenses
________________ (11)
(12) Other
(itemize)
________________ (12)
Cash for
Keys__________________________
________________ (12)
HOA/Condo
Fees_______________________
________________ (12)
______________________________________
________________ (12)
Total
Expenses
$
________________ (13)
Credits:
(14) Escrow
Balance
$ ________________ (14)
(15) HIP
Refund
________________ (15)
(16) Rental
Receipts
________________ (16)
(17) Hazard
Loss
Proceeds
________________ (17)
(18) Primary
Mortgage Insurance / Gov’t
Insurance
________________ (18a)
HUD
Part A
________________ (18b) HUD Part B
(19) Pool
Insurance
Proceeds _________________ (19)
(20) Proceeds
from Sale of Acquired
Property
_________________ (20)
(21) Other
(itemize)
_________________ (21)
_________________________________________
_________________ (21)
Total
Credits
$_________________ (22)
Total
Realized Loss (or Amount of
Gain)
$_________________ (23)
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
SCHEDULE
1
MORTGAGE
LOAN SCHEDULE
Previously
Filed
SCHEDULE
2
PREPAYMENT
CHARGE SCHEDULE
Available
Upon Request