MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. Depositor HOMEQ SERVICING CORPORATION Servicer WELLS FARGO BANK, N.A. Master Servicer, Trust Administrator and Custodian and POOLING AND SERVICING AGREEMENT Dated as of August 1, 2006 MASTR Asset Backed...
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
Depositor
Depositor
HOMEQ
SERVICING CORPORATION
Servicer
▇▇▇▇▇
FARGO BANK, N.A.
Master
Servicer, Trust Administrator and Custodian
and
U.S.
BANK
NATIONAL ASSOCIATION
Trustee
Trustee
Dated
as
of ▇▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ Backed Securities Trust 2006-HE3
Mortgage Pass-Through Certificates
Mortgage Pass-Through Certificates
Series 2006-HE3
TABLE
OF
CONTENTS
|
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 an 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.
|
|
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 Trust
Administrator, 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 and Distribution 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
to the Trust Administrator; 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
|
|
SECTION
3.27.
|
Solicitations.
|
|
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, the Servicer 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.
|
[Reserved].
|
|
SECTION
6.08.
|
Duties
of the Credit Risk Manager.
|
|
SECTION
6.09.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
6.10.
|
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 or Trustee 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 CE Certificate
|
|
Exhibit
A-17
|
Form
of Class P Certificate
|
|
Exhibit
A-18
|
Form
of Class R Certificate
|
|
Exhibit
A-19
|
Form
of Class R-X Certificate
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C-1
|
Form
of Initial Certification
|
|
Exhibit
C-2
|
Form
of Final Certification
|
|
Exhibit
C-3
|
Form
of Receipt of Mortgage Notes
|
|
Exhibit
D
|
Forms
of Assignment Agreements
|
|
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
|
Form
of Cap Contract
|
|
Exhibit
L
|
Annual
Statement of Compliance pursuant to Section 3.20
|
|
Exhibit
M
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
N
|
Form
of Swap Administration Agreement
|
|
Exhibit
O
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
P
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
Q
|
Additional
Disclosure Notification
|
|
Exhibit
R-1
|
Form
of Delinquency Report
|
|
Exhibit
R-2
|
Form
of Monthly Remittance Advice
|
|
Exhibit
R-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 August 1, 2006
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. as Depositor, HOMEQ
SERVICING CORPORATION, as Servicer, ▇▇▇▇▇ FARGO BANK, N.A. as Master Servicer,
Trust Administrator and Custodian 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 Supplemental
Interest Trust, the Interest Rate Swap Agreement, the Cap Account, the Cap
Contract, any Originator Prepayment Charge Payment Amounts 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
1
Remittance
Rate(2)
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
I
|
Variable
|
$
107.38
|
September
2036
|
|
I-1-A
|
Variable
|
$
3,693,500.00
|
September
2036
|
|
I-1-B
|
Variable
|
$
3,693,500.00
|
September
2036
|
|
I-2-A
|
Variable
|
$
4,589,500.00
|
September
2036
|
|
I-2-B
|
Variable
|
$
4,589,500.00
|
September
2036
|
|
I-3-A
|
Variable
|
$
5,482,000.00
|
September
2036
|
|
I-3-B
|
Variable
|
$
5,482,000.00
|
September
2036
|
|
I-4-A
|
Variable
|
$
6,358,000.00
|
September
2036
|
|
I-4-B
|
Variable
|
$
6,358,000.00
|
September
2036
|
|
I-5-A
|
Variable
|
$
7,214,000.00
|
September
2036
|
|
I-5-B
|
Variable
|
$
7,214,000.00
|
September
2036
|
|
I-6-A
|
Variable
|
$
8,035,000.00
|
September
2036
|
|
I-6-B
|
Variable
|
$
8,035,000.00
|
September
2036
|
|
I-7-A
|
Variable
|
$
8,819,500.00
|
September
2036
|
|
I-7-B
|
Variable
|
$
8,819,500.00
|
September
2036
|
|
I-8-A
|
Variable
|
$
9,550,500.00
|
September
2036
|
|
I-8-B
|
Variable
|
$
9,550,500.00
|
September
2036
|
|
I-9-A
|
Variable
|
$
10,221,500.00
|
September
2036
|
|
I-9-B
|
Variable
|
$
10,221,500.00
|
September
2036
|
|
I-10-A
|
Variable
|
$
9,750,000.00
|
September
2036
|
|
I-10-B
|
Variable
|
$
9,750,000.00
|
September
2036
|
|
I-11-A
|
Variable
|
$
9,297,500.00
|
September
2036
|
|
I-11-B
|
Variable
|
$
9,297,500.00
|
September
2036
|
|
I-12-A
|
Variable
|
$
8,866,500.00
|
September
2036
|
|
I-12-B
|
Variable
|
$
8,866,500.00
|
September
2036
|
|
I-13-A
|
Variable
|
$
8,456,000.00
|
September
2036
|
|
I-13-B
|
Variable
|
$
8,456,000.00
|
September
2036
|
|
I-14-A
|
Variable
|
$
8,064,500.00
|
September
2036
|
|
I-14-B
|
Variable
|
$
8,064,500.00
|
September
2036
|
|
I-15-A
|
Variable
|
$
7,694,500.00
|
September
2036
|
|
I-15-B
|
Variable
|
$
7,694,500.00
|
September
2036
|
|
I-16-A
|
Variable
|
$
7,338,500.00
|
September
2036
|
|
I-16-B
|
Variable
|
$
7,338,500.00
|
September
2036
|
|
I-17-A
|
Variable
|
$
6,999,000.00
|
September
2036
|
|
I-17-B
|
Variable
|
$
6,999,000.00
|
September
2036
|
|
I-18-A
|
Variable
|
$
6,680,500.00
|
September
2036
|
|
I-18-B
|
Variable
|
$
6,680,500.00
|
September
2036
|
|
I-19-A
|
Variable
|
$
6,402,000.00
|
September
2036
|
|
I-19-B
|
Variable
|
$
6,402,000.00
|
September
2036
|
|
I-20-A
|
Variable
|
$
12,029,500.00
|
September
2036
|
|
I-20-B
|
Variable
|
$
12,029,500.00
|
September
2036
|
|
I-21-A
|
Variable
|
$
10,811,500.00
|
September
2036
|
|
I-21-B
|
Variable
|
$
10,811,500.00
|
September
2036
|
|
I-22-A
|
Variable
|
$
9,704,500.00
|
September
2036
|
|
I-22-B
|
Variable
|
$
9,704,500.00
|
September
2036
|
|
I-23-A
|
Variable
|
$
8,728,000.00
|
September
2036
|
|
I-23-B
|
Variable
|
$
8,728,000.00
|
September
2036
|
|
I-24-A
|
Variable
|
$
7,842,500.00
|
September
2036
|
|
I-24-B
|
Variable
|
$
7,842,500.00
|
September
2036
|
|
I-25-A
|
Variable
|
$
4,378,000.00
|
September
2036
|
|
I-25-B
|
Variable
|
$
4,378,000.00
|
September
2036
|
|
I-26-A
|
Variable
|
$
4,137,000.00
|
September
2036
|
|
I-26-B
|
Variable
|
$
4,137,000.00
|
September
2036
|
|
I-27-A
|
Variable
|
$
3,912,500.00
|
September
2036
|
|
I-27-B
|
Variable
|
$
3,912,500.00
|
September
2036
|
|
I-28-A
|
Variable
|
$
3,700,000.00
|
September
2036
|
|
I-28-B
|
Variable
|
$
3,700,000.00
|
September
2036
|
|
I-29-A
|
Variable
|
$
3,500,500.00
|
September
2036
|
|
I-29-B
|
Variable
|
$
3,500,500.00
|
September
2036
|
|
I-30-A
|
Variable
|
$
3,312,000.00
|
September
2036
|
|
I-30-B
|
Variable
|
$
3,312,000.00
|
September
2036
|
|
I-31-A
|
Variable
|
$
3,134,000.00
|
September
2036
|
|
I-31-B
|
Variable
|
$
3,134,000.00
|
September
2036
|
|
I-32-A
|
Variable
|
$
2,966,000.00
|
September
2036
|
|
I-32-B
|
Variable
|
$
2,966,000.00
|
September
2036
|
|
I-33-A
|
Variable
|
$
2,807,500.00
|
September
2036
|
|
I-33-B
|
Variable
|
$
2,807,500.00
|
September
2036
|
|
I-34-A
|
Variable
|
$
2,657,500.00
|
September
2036
|
|
I-34-B
|
Variable
|
$
2,657,500.00
|
September
2036
|
|
I-35-A
|
Variable
|
$
2,516,500.00
|
September
2036
|
|
I-35-B
|
Variable
|
$
2,516,500.00
|
September
2036
|
|
I-36-A
|
Variable
|
$
2,383,000.00
|
September
2036
|
|
I-36-B
|
Variable
|
$
2,383,000.00
|
September
2036
|
|
I-37-A
|
Variable
|
$
2,256,500.00
|
September
2036
|
|
I-37-B
|
Variable
|
$
2,256,500.00
|
September
2036
|
|
I-38-A
|
Variable
|
$
2,137,500.00
|
September
2036
|
|
I-38-B
|
Variable
|
$
2,137,500.00
|
September
2036
|
|
I-39-A
|
Variable
|
$
2,025,500.00
|
September
2036
|
|
I-39-B
|
Variable
|
$
2,025,500.00
|
September
2036
|
|
I-40-A
|
Variable
|
$
1,918,500.00
|
September
2036
|
|
I-40-B
|
Variable
|
$
1,918,500.00
|
September
2036
|
|
I-41-A
|
Variable
|
$
1,818,500.00
|
September
2036
|
|
I-41-B
|
Variable
|
$
1,818,500.00
|
September
2036
|
|
I-42-A
|
Variable
|
$
1,723,500.00
|
September
2036
|
|
I-42-B
|
Variable
|
$
1,723,500.00
|
September
2036
|
|
I-43-A
|
Variable
|
$
1,634,000.00
|
September
2036
|
|
I-43-B
|
Variable
|
$
1,634,000.00
|
September
2036
|
|
I-44-A
|
Variable
|
$
1,549,000.00
|
September
2036
|
|
I-44-B
|
Variable
|
$
1,549,000.00
|
September
2036
|
|
I-45-A
|
Variable
|
$
1,468,500.00
|
September
2036
|
|
I-45-B
|
Variable
|
$
1,468,500.00
|
September
2036
|
|
I-46-A
|
Variable
|
$
1,393,000.00
|
September
2036
|
|
I-46-B
|
Variable
|
$
1,393,000.00
|
September
2036
|
|
I-47-A
|
Variable
|
$
1,321,000.00
|
September
2036
|
|
I-47-B
|
Variable
|
$
1,321,000.00
|
September
2036
|
|
I-48-A
|
Variable
|
$
1,253,500.00
|
September
2036
|
|
I-48-B
|
Variable
|
$
1,253,500.00
|
September
2036
|
|
I-49-A
|
Variable
|
$
1,189,500.00
|
September
2036
|
|
I-49-B
|
Variable
|
$
1,189,500.00
|
September
2036
|
|
I-50-A
|
Variable
|
$
1,128,500.00
|
September
2036
|
|
I-50-B
|
Variable
|
$
1,128,500.00
|
September
2036
|
|
I-51-A
|
Variable
|
$
1,071,000.00
|
September
2036
|
|
I-51-B
|
Variable
|
$
1,071,000.00
|
September
2036
|
|
I-52-A
|
Variable
|
$
1,017,000.00
|
September
2036
|
|
I-52-B
|
Variable
|
$
1,017,000.00
|
September
2036
|
|
I-53-A
|
Variable
|
$
965,500.00
|
September
2036
|
|
I-53-B
|
Variable
|
$
965,500.00
|
September
2036
|
|
I-54-A
|
Variable
|
$
917,000.00
|
September
2036
|
|
I-54-B
|
Variable
|
$
917,000.00
|
September
2036
|
|
I-55-A
|
Variable
|
$
870,500.00
|
September
2036
|
|
I-55-B
|
Variable
|
$
870,500.00
|
September
2036
|
|
I-56-A
|
Variable
|
$
827,500.00
|
September
2036
|
|
I-56-B
|
Variable
|
$
827,500.00
|
September
2036
|
|
I-57-A
|
Variable
|
$
785,500.00
|
September
2036
|
|
I-57-B
|
Variable
|
$
785,500.00
|
September
2036
|
|
I-58-A
|
Variable
|
$
747,500.00
|
September
2036
|
|
I-58-B
|
Variable
|
$
747,500.00
|
September
2036
|
|
I-59-A
|
Variable
|
$
710,500.00
|
September
2036
|
|
I-59-B
|
Variable
|
$
710,500.00
|
September
2036
|
|
I-60-A
|
Variable
|
$
14,648,500.00
|
September
2036
|
|
I-60-B
|
Variable
|
$
14,648,500.00
|
September
2036
|
|
P
|
Variable
|
$
100.00
|
September
2036
|
________________
|
(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
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)
|
$
543,724,685.23
|
September
2036
|
|
II-LTA1
|
Variable(2)
|
$
2,349,000.00
|
September
2036
|
|
II-LTA2
|
Variable(2)
|
$
677,000.00
|
September
2036
|
|
II-LTA3
|
Variable(2)
|
$ 927,500.00
|
September
2036
|
|
II-LTA4
|
Variable(2)
|
$
512,810.00
|
September
2036
|
|
II-LTM1
|
Variable(2)
|
$
194,190.00
|
September
2036
|
|
II-LTM2
|
Variable(2)
|
$
177,500.00
|
September
2036
|
|
II-LTM3
|
Variable(2)
|
$
102,680.00
|
September
2036
|
|
II-LTM4
|
Variable(2)
|
$
88,770.00
|
September
2036
|
|
II-LTM5
|
Variable(2)
|
$
88,770.00
|
September
2036
|
|
II-LTM6
|
Variable(2)
|
$
83,220.00
|
September
2036
|
|
II-LTM7
|
Variable(2)
|
$
77,670.00
|
September
2036
|
|
II-LTM8
|
Variable(2)
|
$
66,570.00
|
September
2036
|
|
II-LTM9
|
Variable(2)
|
$
47,150.00
|
September
2036
|
|
II-LTM10
|
Variable(2)
|
$
38,830.00
|
September
2036
|
|
II-LTM11
|
Variable(2)
|
$
47,150.00
|
September
2036
|
|
II-LTZZ
|
Variable(2)
|
$
5,617,612.15
|
September
2036
|
|
II-LTP
|
Variable(2)
|
$
100.00
|
September
2036
|
|
II-LTIO
|
Variable(2)
|
N/A(3)
|
September
2036
|
________________
|
(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)
|
$
234,900,000.00
|
September
2036
|
|
Class
A-2
|
Variable(2)
|
$
67,700,000.00
|
September
2036
|
|
Class
A-3
|
Variable(2)
|
$
92,750,000.00
|
September
2036
|
|
Class
A-4
|
Variable(2)
|
$
51,281,000.00
|
September
2036
|
|
Class
M-1
|
Variable(2)
|
$
19,419,000.00
|
September
2036
|
|
Class
M-2
|
Variable(2)
|
$
17,750,000.00
|
September
2036
|
|
Class
M-3
|
Variable(2)
|
$
10,268,000.00
|
September
2036
|
|
Class
M-4
|
Variable(2)
|
$
8,877,000.00
|
September
2036
|
|
Class
M-5
|
Variable(2)
|
$
8,877,000.00
|
September
2036
|
|
Class
M-6
|
Variable(2)
|
$
8,322,000.00
|
September
2036
|
|
Class
M-7
|
Variable(2)
|
$
7,767,000.00
|
September
2036
|
|
Class
M-8
|
Variable(2)
|
$
6,657,000.00
|
September
2036
|
|
Class
M-9
|
Variable(2)
|
$
4,715,000.00
|
September
2036
|
|
Class
M-10
|
Variable(2)
|
$
3,883,000.00
|
September
2036
|
|
Class
M-11
|
Variable(2)
|
$
4,715,000.00
|
September
2036
|
|
Class
CE Interest
|
Variable(3)
|
$
6,940,107.38
|
September
2036
|
|
Class
P Interest
|
N/A(4)
|
$
100.00
|
September
2036
|
|
Class
Swap-IO Interest
|
N/A(5)
|
N/A
|
September
2036
|
_______________
(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)
|
$
6,940,107.38
|
September
2036
|
_______________
(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
|
September
2036
|
_______________
(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
|
September
2036
|
________________
|
(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 $554,821,207.38.
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.
“10-K
Filing Deadline”: The meaning set forth in Section 4.06(a)(iv).
“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
Disclosure”: The meaning set forth in Section 4.06(a)(v).
“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 on 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 Master Servicer 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 Master Servicer 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.
“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 3.26 hereof.
“Advancing
Person”: As defined in Section 3.26 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”: Each Assignment and Recognition Agreement, dated August 30, 2006,
among the Depositor, the Seller and the related Originator, forms of which
are
attached hereto as Exhibit D, pursuant to which the Seller assigns its rights
under the related 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, any Originator
Prepayment Charge Payment Amount and any Servicer Prepayment Charge Payment
Amount, (e) 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 State of New Jersey, the State of
California, the State of New York, or in the cities in which the Corporate
Trust
Office of the Trustee or the Corporate Trust Office of the Trust Administrator
are 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.
“Certification
Parties”: The meaning set forth in Section 4.06(a)(iv).
“Certificate”:
Any one of the Mortgage Pass-Through Certificates, Series 2006-HE3, 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 CE, Class P, Class R or 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)
(%)
|
||
|
▇-▇
|
▇▇-▇▇▇▇
|
0.040%
|
0.080%
|
|
▇-▇
|
▇▇-▇▇▇▇
|
0.100%
|
0.200%
|
|
▇-▇
|
▇▇-▇▇▇▇
|
0.150%
|
0.300%
|
|
▇-▇
|
▇▇-▇▇▇▇
|
0.240%
|
0.480%
|
|
M-1
|
II-LTM1
|
0.250%
|
0.375%
|
|
M-2
|
II-LTM2
|
0.300%
|
0.450%
|
|
M-3
|
II-LTM3
|
0.330%
|
0.495%
|
|
M-4
|
II-LTM4
|
0.370%
|
0.555%
|
|
M-5
|
II-LTM5
|
0.390%
|
0.585%
|
|
M-6
|
II-LTM6
|
0.450%
|
0.675%
|
|
M-7
|
II-LTM7
|
0.850%
|
1.275%
|
|
M-8
|
II-LTM8
|
1.050%
|
1.575%
|
|
M-9
|
II-LTM9
|
1.900%
|
2.850%
|
|
M-10
|
II-LTM10
|
2.500%
|
3.750%
|
|
M-11
|
II-LTM11
|
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.
|
“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 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, the Trustee and the NIMS
Insurer may conclusively rely upon a certificate of the Depositor, 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 of the Class A-1 Certificates, Class A-2 Certificates, Class
A-3 Certificates or Class A-4 Certificates.
“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-16 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-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-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-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 aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date) and (iii) 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) 81.30% 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 $2,774,106.04.
“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 aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) 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 (iv) 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) 84.50% 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
$$2,774,106.04.
“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 aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) 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), (iv) 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 (v) 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) 87.50% 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 $$2,774,106.04.
“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 aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) 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), (iv) 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), (v) 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 (vi) 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) 90.30% 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
$$2,774,106.04.
“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 aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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 (vii) 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) 92.70% 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 $$2,774,106.04.
“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 aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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), (vii) 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 (viii) 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) 94.40% 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
$$2,774,106.04.
“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 aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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), (vii) 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), (viii) 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 (ix) 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) 95.80% 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 $$2,774,106.04.
“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 aggregate
Certificate Principal Balance of the Sequential Class M Certificates (after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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), (vii) 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), (viii) 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), (ix) 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 (x) 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) 97.50% 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 $$2,774,106.04.
“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-17 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-18 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-19 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”: August 30, 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 “HomEq Servicing Corporation, as Servicer for U.S. Bank National
Association, as Trustee, in trust for the registered holders of MASTR Asset
Backed Securities Trust 2006-HE3, Mortgage Pass-Through Certificates.” The
Collection Account must be an Eligible Account
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: With respect to the Servicer and any Principal Prepayment, 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
and
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, in each case, up to the aggregate compensation
payable to the Servicer or the Master Servicer, as applicable, for the related
collection period under this Agreement.
“Compensating
Interest Payment”: As defined in Section 3.24.
“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-HE3, 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
Originators, 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-HE3 and (B) for all other
purposes, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Services—MASTR 2006-HE3, 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 Originators 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-LTP
|
Class
P
|
“Credit
Enhancement Percentage”: For any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is the aggregate Certificate Principal
Balance of the Mezzanine Certificates and the Class CE Certificates, and the
denominator of which is 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
Certificates then entitled to distributions of principal on such Distribution
Date.
“Credit
Risk Management Agreement”: The respective agreements between the Credit Risk
Manager and the Servicer and/or Master Servicer regarding the loss mitigation
and advisory services to be provided by the Credit Risk Manager.
“Credit
Risk Manager”: ▇▇▇▇▇▇▇ Fixed Income Services Inc., a Colorado corporation,
formerly known as The Murrayhill 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 respective Credit Risk Management Agreement and any other
agreement pursuant to which the Credit Risk Manager is to perform any duties
with respect to the related 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
related Mortgage Loans and any related REO Properties as of the first day of
the
related Due Period.
“Credit
Risk Manager Fee Rate”: 0.0125% 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.
“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 ▇▇▇▇▇
Fargo Bank, N.A.
“Cut-off
Date”: With respect to each Original Mortgage Loan, August 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.
“DBRS”:
Dominion Bond Rating Service, or its successor in interest.
“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”: The percentage equivalent of a fraction, the numerator of which is
the aggregate Principal Balance of all Mortgage Loans (not including Liquidated
Mortgage Loans as of the end of the Prepayment Period) 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 are in
bankruptcy,
taking
into account any prepayments received through the end of the related Prepayment
Period, and
the
denominator of which is the aggregate Principal Balance of the Mortgage Loans
as
of the close
of
business on the last day of such month, taking into account any prepayments
received through the end of the related Prepayment Period.
“Delinquent”:
A Mortgage Loan is Delinquent if any Monthly Payment due on a Due Date is not
made by the close of business on the next scheduled Due Date for such Mortgage
Loan (as determined and reported based on the “OTS” methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans and not including
any Liquidated Mortgage Loans).
“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 Securities
Exchange Act of 1934, as amended.
“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.
“Discount
Factor”: With
respect to each Distribution Date, the product of each Projected Zero Factor
for
each preceding Distribution Date, including such Distribution Date, with the
Projected Zero Factor for the Significance Percentage Calculation Date equal
to
1.
“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 Trust 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-HE3, Mortgage Pass-Through
Certificates, Series 2006-HE3—Distribution Account.” The Distribution Account
must 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 September 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, the Trustee 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 Trustee pursuant to Section 3.06
or Section 7.02, 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).
“▇▇▇▇▇▇
▇▇▇”: ▇▇▇▇▇▇ ▇▇▇, formerly 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
an 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 Loans”: Each of the Mortgage Loans identified in the Mortgage Loan
Schedule whose Mortgage Rates remain fixed for the life 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, formerly 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 and Class M-11
Certificates.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class CE
Certificates, the Class P Certificates, the Class R Certificates and/or the
Class R-X 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 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 and REMIC II Regular Interest II-LTM11 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 August 30, 2006 (together with the confirmation, the credit
support annex and the schedule thereto, the Master Agreement) between the Swap
Provider and the Trust Administrator (in its capacity as Supplemental Interest
Trust Trustee) and a confirmation of the same date, which supplements and forms
part of 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, Section 3.16(c) 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, Section
3.16(c) 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 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 Default”: One or more of the events described in
Section 7.01(b).
“Master
Servicing Compensation”: The meaning specified in
Section 3A.09.
“Master
Servicer Fee”: With respect to each Mortgage Loan, the amount of the annual fee
paid to the Master Servicer, which shall, for a period of one full month, be
equal to one-twelfth of the product of (a) the Master Servicer Fee Rate (without
regard to the words “per annum”) and (b) the Stated Principal Balance of such
Mortgage Loan as of the first day of the related Due Period. Such fee shall
be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is received.
The obligation for payment of the Master Servicer Fee is limited to, and the
Master Servicer Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds) of such Monthly
Payment collected by the Servicer.
“Master
Servicer Fee Rate”: With respect to each Mortgage Loan, the rate of 0.0025% per
annum.
“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 (adjusted to account for principal prepayments distributed on the
prior
Distribution Date) 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) 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 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 (i) a 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
(ii)
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 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 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate, Class M-9
Certificate, Class M-10 Certificate or Class M-11 Certificate.
“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 each 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”: Any Adjustable-Rate Mortgage Loan or Fixed-Rate 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:
(i) the
Mortgage Loan identifying number;
(ii) [reserved];
(iii) the
state
and zip code of the Mortgaged Property;
(iv) a
code
indicating whether the Mortgaged Property was represented by the borrower,
at
the time of origination, as being owner-occupied;
(v) the
type
of Residential Dwelling constituting the Mortgaged Property;
(vi) the
original months to maturity;
(vii) the
stated remaining months to maturity from the Cut-off Date based on the original
amortization schedule;
(viii) the
Loan-to-Value Ratio at origination;
(ix) the
Mortgage Rate in effect immediately following the Cut-off Date;
(x) the
date
on which the first Monthly Payment was due on the Mortgage Loan;
(xi) the
stated maturity date;
(xii) the
amount of the Monthly Payment at origination;
(xiii) the
amount of the Monthly Payment due on the first Due Date after the Cut-off
Date;
(xiv) the
last
Due Date on which a Monthly Payment was actually applied to the unpaid Stated
Principal Balance;
(xv) the
original principal amount of the Mortgage Loan;
(xvi) the
Stated Principal Balance of the Mortgage Loan as of the close of business on
the
Cut-off Date;
(xvii) a
code
indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out refinancing);
(xviii) the
Mortgage Rate at origination;
(xix) a
code
indicating the documentation program (i.e.,
full
documentation, limited documentation, stated income documentation);
(xx) the
risk
grade assigned by the related Originator;
(xxi) the
Value
of the Mortgaged Property;
(xxii) the
sale
price of the Mortgaged Property, if applicable;
(xxiii) the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
(xxiv) the
type
and term of the related Prepayment Charge;
(xxv) the
rounding code;
(xxvi) the
program code;
(xxvii) a
code
indicating the lien priority for Mortgage Loans;
(xxviii)
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;
(xxix) the
credit score (“FICO”) of such Mortgage Loan; and
(xxx) 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 in the aggregate 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 related Mortgaged Property and any amounts due on such Mortgage Loans on
or
prior to the Cut-off Date.
“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
and
the Master Servicer 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 (a)(i)
the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans
(adjusted to account for principal prepayments distributed on the prior
Distribution Date), 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 minus
(ii) an amount, expressed as a percentage, equal to the product of (x) each
Net
Swap Payment, if any, paid by the Trust for such Distribution Date divided
by
the aggregate Stated Principal Balance of the Mortgage Loans (adjusted to
account for principal prepayments distributed on the prior Distribution Date)
as
of the first day of the calendar month preceding the month in which the
Distribution Date occurs and (y) 12 and (iii) an amount, expressed as a
percentage, equal to the product of (x) a 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 (adjusted to account for
principal prepayments distributed on the prior Distribution Date) as of the
first day of the calendar month preceding the month in which the Distribution
Date occurs and (y) 12
and (b)
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. For federal income
tax purposes, for any Distribution Date with respect to the REMIC III Regular
Interests the ownership of which is represented by the Regular Certificates
(other than the Class CE Certificates or Class P Certificates), the equivalent
of the foregoing shall be expressed as the product of (a) 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 and (b) 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.
“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, the Class R Certificates and/or the Class R-X
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.
“Officer’s
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 Servicer, the Master Servicer, an 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 and REMIC II Regular
Interest II-LTM11 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.
“One-Year
LIBOR” means the average of interbank offered rates for one-year U.S. dollar
deposits in the London market based on quotations of major banks, and most
recently available as of a day specified in the related mortgage note as
published by the Western Edition of The
Wall Street Journal.
“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”:
Meritage Mortgage Corporation, WMC Mortgage Corp., First Street Financial,
Inc.
and EquiFirst Corporation.
“Originator
Master Agreements”: With respect to (i) Meritage Mortgage Corporation; the
Master Seller’s Purchase, Warranties and Interim Servicing Agreement, dated as
of May 1, 2006, between the Seller and Meritage Mortgage Corporation, as
amended; (ii) WMC Mortgage Corp.; the Amended and Restated Master Seller’s
Purchase and Warranties Agreement, dated as of December 1, 2005, between the
Seller and WMC Mortgage Corp., as amended; (iii) First Street Financial, Inc.,
the Master Seller’s Purchase, Warranties and Interim Servicing Agreement, dated
as of August 1, 2004, between the Seller and First Street Financial, Inc.,
as
amended; and (iv) EquiFirst Corporation, the Master Seller’s Purchase,
Warranties and Interim Servicing Agreement, dated as of May 1, 2006, between
the
Seller and EquiFirst Corporation, as amended.
“Originator
Prepayment Charge Payment Amount”: The amounts payable by the Originator in
respect of any waived Prepayment Charges pursuant to Section 3.01.
“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 Remittance 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) 1.25%
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)
2.50% 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. 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 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:
(xxxi) 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;
(xxxii) (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;
(xxxiii) 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;
(xxxiv) 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;
(xxxv) 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 in its highest short-term unsecured debt rating available at the time
of
such investment;
(xxxvi) 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
(xxxvii) 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, 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 Mortgage and 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 and any Originator Prepayment Charge Payment Amount
(other than any Servicer Prepayment Charge Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans provided by the Depositor 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:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Mortgage Loan; and
(vi) 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 voluntary Principal Prepayment in full 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 August 1, 2006) and ending on the 15th
day of the calendar month in which such Distribution Date occurs. With respect
to any Distribution Date and any Principal Prepayment in part, the calendar
month preceding the month in which the Distribution Date occurs.
“Present
Value Maximum Probable Exposure”: With
respect to each Distribution
Date, the sum of each Present Value Probable Cash Flow from, and including,
such
Distribution Date to, and including, the Termination Date in such derivative
confirmation.
“Present
Value Probable Cash Flow”: With
respect to each Distribution
Date, the product of (i) the Probable Cash Flow and (ii) the Discount Factor
applicable for such Distribution Date.
“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”: For any Distribution Date will be the sum of (i) the
principal portion of all scheduled monthly payments on the Mortgage Loans due
during the related Due Period, whether or not received on or prior to the
related Determination Date; (ii) the principal portion of all proceeds received
in respect of the repurchase of a Mortgage Loan (or, in the case of a
substitution, certain amounts representing a principal adjustment) during the
related Prepayment Period; (iii) the principal portion of all related Net
Liquidation Proceeds, Insurance Proceeds, Subsequent Recoveries and all full
and
partial principal prepayments, received during the related Prepayment Period,
to
the extent applied as recoveries of principal on the Mortgage Loans and (iv)
any
Extra Principal Distribution Amount for such Distribution Date minus (v) any
Overcollateralization Release Amount for such Distribution Date. In no event
will the Principal Distribution Amount with respect to any Distribution Date
be
(x) less than zero or (y) greater than the then outstanding aggregate
Certificate Principal Balance of the Class A and Mezzanine Certificates.
“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 the
amounts set forth in clauses (i) through (iii) of the definition of Principal
Distribution Amount.
“Probable
Cash Flow”: With
respect to each Distribution
Date, the product of (i) the Notional Balance in such derivative confirmation
for such Distribution Date, divided by 12, and (ii) the excess, if any, of
(a)
the Projected Forward Rate over (b) the cap rate, as defined in the derivative
confirmation attached hereto as Exhibit K or the fixed rate, as defined in
the
derivative confirmation attached hereto as Exhibit M, as applicable. The
Probable Cash Flow for each Distribution Date that precedes the Significance
Percentage Calculation Date shall equal zero.
“Projected
Forward Rate”: With
respect to each Distribution
Date,
the
product of (i) One Month LIBOR (expressed as a percentage) for the related
Accrual Period made available at Bloomberg Financial Markets, L.P. ("Bloomberg")
by typing in the following keystrokes: FWCV <go>US<go>3<go>
and inputting “1” as Forwards and Intervals, and (ii) the sum of 1 and the
product of (a) a percentage volatility level, linearly interpolated based on
"Mid USD Cap" volatility levels as obtained from Bloomberg within 15 calendar
days of such Distribution
Date
by
typing the keystrokes: TTCF <go>, 1 <go>, whose maturity date
corresponds to the Termination Date in such derivative confirmation, (b) a
factor of 1.3, and (c) the square root of the number of days from the
Significance Percentage Calculation Date to the first day of the Accrual Period
for each related Distribution Date divided by 360.
“Projected
Zero Factor”: With
respect to each Distribution
Date, a fraction, the numerator of which is 1 and the denominator of which
is
the sum of (i) 1 and (ii) the Projected Forward Rate divided by 12.
“Prospectus
Supplement”: That certain Prospectus Supplement dated August 4, 2006 relating to
the public offering of the Class A Certificates and the Mezzanine
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
Officer’s Certificate from the Servicer 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 Advances and
Servicing Advances (including Nonrecoverable Advances and Nonrecoverable
Servicing Advances) and any unpaid Servicing Fees and Master Servicer Fee
allocable to such Mortgage Loan or REO Property, (iv) any amounts previously
withdrawn from the Collection Account pursuant to Section 3.11(a)(ix) 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 with respect to such loan of any predatory or abusive lending
law. With respect to each Originator and any Mortgage Loan or REO Property
to be
purchased pursuant to or as contemplated by Section 2.03 or 10.01, an
amount equal to the amount set forth pursuant to the terms of the related
Originator Master Agreement.
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan by the Seller or the Originator, as applicable, pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding 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 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) with respect to any Adjustable-Rate
Mortgage Loan, have a Maximum Mortgage Rate not less than the Maximum Mortgage
Rate of the Deleted Mortgage Loan, (iv) with respect to any Adjustable-Rate
Mortgage Loan, have a Minimum Mortgage Rate not less than the Minimum Mortgage
Rate of the Deleted Mortgage Loan, (v) with respect to any Adjustable-Rate
Mortgage Loan, have a Gross Margin equal to or greater than the Gross Margin
of
the Deleted Mortgage Loan, (vi) with respect to any 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) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Deleted Mortgage Loan, (viii) have the same Due Date as the Due Date on the
Deleted Mortgage Loan, (ix) have a Loan-to-Value Ratio as of the date of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (x) have a risk grading determined by the
Originator at least equal to the risk grading assigned on the Deleted Mortgage
Loan, (xi) have a Prepayment Charge provision at least equal to the Prepayment
Charge provision in the Deleted Mortgage Loan, (xii) [reserved] and (xiii)
conform to each representation and warranty set forth in the related Originator
Master Agreement and related Assignment Agreement applicable to the Deleted
Mortgage Loan. 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 principal balances, the Mortgage
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Rates, the terms described in clause (vii) hereof
shall be determined on the basis of weighted average remaining term to maturity,
the Loan-to-Value Ratios described in clause (ix) hereof shall be satisfied
as
to each such mortgage loan, the risk gradings 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.
“Rating
Agency” or “Rating Agencies”: ▇▇▇▇▇’▇, DBRS 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, ▇▇▇▇▇▇▇’▇ 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 Agreements (including any security interest created thereby);
and (v) the Collection Account, the Distribution Account (other than any amounts
representing any Servicer Prepayment Charge Payment Amount or
any
Originator Prepayment Charge Payment Amount)
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 Swap Account, the Cap Account, the Cap Contract, the
Supplemental Interest Trust, any Servicer Prepayment Charge Payment Amounts
or
any Originator 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 I-LTP, a per annum rate equal to the weighted average Adjusted Net
Mortgage Rate of the Mortgage Loans. For the first Distribution Date through
the
24th
Distribution Date, 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 11.200%. For the first Distribution Date through the 24th
Distribution Date, 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) 11.200% and (y) 0.00%. After the 24th
Distribution Date, 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 11.400%. After the 24th
Distribution Date, 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) 11.400% 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 and REMIC
II Regular Interest II-LTM11, 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 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 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-LTP and 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-LTZZ
and REMIC II Regular Interest II-LTP, a per annum rate (but not less than zero)
equal to the weighted average of (v) with respect to REMIC I Regular Interest
I,
and REMIC I Regular Interest I-LTP, the REMIC I Remittance Rate for such REMIC
I
Regular Interest for each such Distribution Date, (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
1 Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
2
|
I-2-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
3
|
I-3-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
4
|
I-4-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
5
|
I-5-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
6
|
I-6-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
7
|
I-7-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
8
|
I-8-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
9
|
I-9-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
10
|
I-10-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
11
|
I-11-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
12
|
I-12-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
13
|
I-13-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
14
|
I-14-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
15
|
I-15-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
16
|
I-16-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
17
|
I-17-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
18
|
I-18-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
19
|
I-19-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
20
|
I-20-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
21
|
I-21-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
22
|
I-22-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
23
|
I-23-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
24
|
I-24-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
25
|
I-25-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
26
|
I-26-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
27
|
I-27-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
28
|
I-28-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
29
|
I-29-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
30
|
I-30-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
31
|
I-31-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
32
|
I-32-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
33
|
I-33-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
34
|
I-34-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
35
|
I-35-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
36
|
I-36-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
37
|
I-37-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
38
|
I-38-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
39
|
I-39-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
40
|
I-40-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
41
|
I-41-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
42
|
I-42-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
43
|
I-43-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
44
|
I-44-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
45
|
I-45-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
46
|
I-46-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
47
|
I-47-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
48
|
I-48-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
49
|
I-49-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
50
|
I-50-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
51
|
I-51-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
52
|
I-52-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
53
|
I-53-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
54
|
I-54-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
55
|
I-55-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
56
|
I-56-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
57
|
I-57-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
58
|
I-58-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-57-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
59
|
I-59-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-58-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
60
|
I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-59-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
thereafter
|
I-1-A
through I-60-A
|
Uncertificated
REMIC 1 Remittance Rate
|
With
respect to REMIC II Regular Interest II-LTIO, and (a) the first 60 Distribution
Dates, 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, and (b) thereafter, 0.00%.
“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 Class 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 all of the Class Swap-IO
Interest conveyed in trust to the Trustee, for the benefit of the Holders of
the
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
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 or Master Servicer Fees
in
respect of the related Mortgage Loan and unreimbursed Advances and Servicing
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 agreed to by the Custodian 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”:
UBS Real Estate Securities Inc. or its successor in interest, in its capacity
as
Seller under the Assignment Agreements.
“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) 61.00% 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 $2,774,106.04.
“Sequential
Class M Certificates”: the Class M-1 Certificates, the Class M-2 Certificates
and the Class M-3 Certificates.
“Sequential
Class M 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
aggregate Certificate Principal Balance of the Sequential Class M Certificates
over (y) the lesser of (A) the product of (i) 78.10% 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 $2,774,106.04.
“Servicer”:
HomEq Servicing Corporation or any successor Servicer appointed as herein
provided, each in its capacity as a 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 3.01.
“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 following.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: The reasonable “out-of-pocket” costs and expenses incurred by the
Servicer in connection with a default, delinquency or other unanticipated event
by the Servicer in the performance of its servicing obligations, including,
but
not limited to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement, administration or
judicial proceedings, including foreclosures, in respect of a particular
Mortgage Loan, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS
System, (iii) the management (including reasonable fees in connection therewith)
and liquidation of any REO Property, (iv) taxes, assessments, water rates,
sewer
rents and other charges which are or may become a lien upon the Mortgage
Property and (v) the performance of its obligations under Section 3.01, Section
3.09, Section 3.13, Section 3.14, Section 3.16 and Section 3.23. Servicing
Advances shall 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
in respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer would not be ultimately recoverable from related
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein. The Servicer shall not be required to make any Servicing
Advance that would be a Nonrecoverable Advance.
“Servicing
Criteria” means the criteria set forth in paragraph (d) of Item 1122 of
Regulation AB, as such may be amended from time to time.
“Servicing
Fee”: With respect to each Mortgage Loan, the amount of the annual fee paid to
the Servicer, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate (without regard to
the
words “per annum”) and (b) the Stated Principal Balance of such Mortgage Loan as
of the first day of the related Due Period. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is received. The obligation
for
payment of the Servicing Fee is limited to, and the Servicing Fee is payable
solely from, the interest portion (including recoveries with respect to interest
from Liquidation Proceeds) of such Monthly Payment collected by the Servicer,
or
as otherwise provided under Section 3.11.
“Servicing
Fee Rate”: With respect to each Mortgage Loan, the rate of 0.5000% per
annum.
“Servicing
Function Participant” means any Sub-Servicer or Subcontractor of a Servicer, the
Master Servicer, the Custodian or the Trust Administrator, respectively. For
the
avoidance of doubt, the Custodian shall be considered a Servicing Function
Participant without regard to the threshold percentage set forth in instruction
2 of Item 1122 of Regulation AB.
“Servicing
Officer”: Any employee of the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name appear on a
list
of Servicing Officers furnished by the Servicer to the Master Servicer, the
Trust Administrator, the Trustee and the Depositor, 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
Trustee, the Trust Administrator and the Depositor 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 Trustee or 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 Trustee, the Master Servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
Trustee or 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 highest of each Present Value Maximum Probable Exposure and the denominator
of which is the aggregate Certificate Principal Balance of the Class A and
Mezzanine Certificates that are supported by the derivatives (after giving
effect to all distributions on such Distribution
Date
in such
derivative confirmation).
“Significance
Percentage Calculation Date”: Shall mean no later than the respective
Distribution Date.
“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 first Distribution Date immediately
succeeding 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 September 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) for the Class A Certificates is equal to or greater than
39.00%.
“Subcontractor”
means any vendor, subcontractor or other Person that is not responsible for
the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Sub-Servicer of any Servicer),
the Master Servicer, the Custodian or the Trust Administrator.
“Subordinate
Certificates”: The Mezzanine Certificates and the Class CE Certificates.
“Sub-Servicer”
means any Person that services Mortgage Loans on behalf of a Servicer, and
is
responsible for the performance (whether directly or through sub-servicers
or
Subcontractors) of servicing functions required to be performed under this
Agreement, any related Servicing Agreement or any sub-servicing agreement that
are identified in Item 1122(d) of Regulation AB.
“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, which meets
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
Administration Agreement”: As defined in Section 4.08(b).
“Swap
Administrator”: ▇▇▇▇▇
Fargo Bank, N.A.,
a
national banking association, or any successor in interest not in its individual
capacity but solely as swap administrator under the Swap Administration
Agreement, or any successor swap administrator appointed pursuant to the Swap
Administration Agreement.
“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 Amounts of the Class SWAP-IO
Interest and the scheduled notional amount pursuant to the Swap Administration
Agreement.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by either Swap Provider
under the Interest Rate 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 (as defined in the Interest Rate Swap Agreement).
“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:
(b) the
Delinquency Percentage exceeds 38.40% of the Credit Enhancement Percentage;
or
(c) 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
|
|
September
2008 through August 2009
|
1.35%
for the first month, plus an additional 1/12th of 1.65% for each
month
thereafter
|
|
September
2009 through August 2010
|
3.00%
for the first month, plus an additional 1/12th of 1.65% for each
month
thereafter
|
|
September
2010 through August 2011
|
4.70%
for the first month, plus an additional 1/12th of 1.35% for each
month
thereafter
|
|
September
2011 through August 2012
|
6.05%
for the first month, plus an additional 1/12th of 0.75% for each
month
thereafter
|
|
September
2012 and thereafter
|
6.80%
|
“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 and REMIC VI, the Net WAC Rate Carryover Reserve Account,
distributions made to the Trust Administrator by the Swap Administrator under
the Swap Administration Agreement to 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 and 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-60-A
|
|
10
|
I-10-A
through I-60-A
|
|
11
|
I-11-A
through I-60-A
|
|
12
|
I-12-A
through I-60-A
|
|
13
|
I-13-A
through I-60-A
|
|
14
|
I-14-A
through I-60-A
|
|
15
|
I-15-A
through I-60-A
|
|
16
|
I-16-A
through I-60-A
|
|
17
|
I-17-A
through I-60-A
|
|
18
|
I-18-A
through I-60-A
|
|
19
|
I-19-A
through I-60-A
|
|
20
|
I-20-A
through I-60-A
|
|
21
|
I-21-A
through I-60-A
|
|
22
|
I-22-A
through I-60-A
|
|
23
|
I-23-A
through I-60-A
|
|
24
|
I-24-A
through I-60-A
|
|
25
|
I-25-A
through I-60-A
|
|
26
|
I-26-A
through I-60-A
|
|
27
|
I-27-A
through I-60-A
|
|
28
|
I-28-A
through I-60-A
|
|
29
|
I-29-A
through I-60-A
|
|
30
|
I-30-A
through I-60-A
|
|
31
|
I-31-A
through I-60-A
|
|
32
|
I-32-A
through I-60-A
|
|
33
|
I-33-A
through I-60-A
|
|
34
|
I-34-A
through I-60-A
|
|
35
|
I-35-A
through I-60-A
|
|
36
|
I-36-A
through I-60-A
|
|
37
|
I-37-A
through I-60-A
|
|
38
|
I-38-A
through I-60-A
|
|
39
|
I-39-A
through I-60-A
|
|
40
|
I-40-A
through I-60-A
|
|
41
|
I-41-A
through I-60-A
|
|
42
|
I-42-A
through I-60-A
|
|
43
|
I-43-A
through I-60-A
|
|
44
|
I-44-A
through I-60-A
|
|
45
|
I-45-A
through I-60-A
|
|
46
|
I-46-A
through I-60-A
|
|
47
|
I-47-A
through I-60-A
|
|
48
|
I-48-A
through I-60-A
|
|
49
|
I-49-A
through I-60-A
|
|
50
|
I-50-A
through I-60-A
|
|
51
|
I-51-A
through I-60-A
|
|
52
|
I-52-A
through I-60-A
|
|
53
|
I-53-A
through I-60-A
|
|
54
|
I-54-A
through I-60-A
|
|
55
|
I-55-A
through I-60-A
|
|
56
|
I-56-A
through I-60-A
|
|
57
|
I-57-A
through I-60-A
|
|
58
|
I-58-A
through I-60-A
|
|
59
|
I-59-A
and I-60-A
|
|
60
|
I-60-A
|
|
thereafter
|
$0.00
|
With
respect to the Class 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
and
Class R-X 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:
(i)
the
lesser of (a) the value thereof as determined by an appraisal made for the
Originator at the time of origination of the Mortgage Loan by an appraiser
who
met the minimum requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, and (b) the value
thereof as determined by a review appraisal conducted by the Originator in
the
event any such review appraisal determines an appraised value more than 10%
lower than the value thereof, in the case of a Mortgage Loan with a
Loan-to-Value Ratio less than or equal to 80%, or more than 5% lower than the
value thereof, in the case of a Mortgage Loan with a Loan-to-Value Ratio greater
than 80%, as determined by the appraisal referred to in clause (i)(a) above;
and
(ii)
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 or a Mortgage Loan originated in connection with a
“lease option purchase” if the “lease option purchase price” was set 12 months
or more prior to origination, such value of the Mortgaged Property is based
solely upon clause (i) above.
“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.
“▇▇▇▇▇
Fargo”: ▇▇▇▇▇ Fargo Bank, N.A.
| 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 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 Assignment Agreements, payments
made to the Trust Administrator by the Swap Administrator under the Swap
Administration Agreement and the Swap 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). Any payments received on the Mortgage Loans
after the Cut-off Date, whether in the form of Monthly Payments, Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments, Subsequent Recoveries
or
any other amounts collected on such Mortgage Loan, shall be used first to
satisfy any amounts due on such Mortgage Loan on or prior to the Cut-off Date,
to the Person and in the amount certified by the Servicer to the Depositor
on
the Closing Date. The Depositor herewith delivers to the Trustee executed
originals of each Assignment Agreement.
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, to the Custodian (on behalf of the Trustee), with respect
the 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 related 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 related 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.
With
respect to a maximum of 1.0% of the Mortgage Loans, by outstanding Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, 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 Trustee) 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 the Trustee or the Custodian on behalf of the Trustee of the
recording information for a Mortgage, but in no event later than ninety days
following the Closing Date) enforce the obligations of the related Originator
pursuant to the terms of the related Originator Master Agreement to submit
or
cause to be submitted for recording, at no expense to the Trust Fund, the
Trustee, the Trust Administrator, 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 (upon receipt of notice from the Custodian)
shall enforce the obligation of each Originator pursuant to the terms of the
related 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 each Originator pursuant to the
related 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 with 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 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 related 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 each Originator, the Trustee or the Custodian
on behalf of the Trustee 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, 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 related Originator, the Seller, the Depositor or the 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 Cap Contract, the Interest Rate Swap Agreement (in
its
capacity as Supplemental Interest Trust Trustee) and to assign any rights to
receive payments from the Swap Provider to the Swap Administrator pursuant
to
the Swap Administration Agreement and the Depositor further directs the Trust
Administrator to execute, deliver and perform its obligations under the Swap
Administration Agreement. 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
Cap
Contract, the Interest Rate Swap Agreement and the Swap Administration Agreement
and shall do so solely in its capacity as Trust Administrator or as Swap
Administrator, as the case may be, 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 execution of the Cap Contract, the Interest
Rate Swap Agreement and the Swap Administration Agreement, 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 to execute and
deliver to the Depositor and the NIMS Insurer on or prior to the Closing Date
an
acknowledgment of receipt of the original Mortgage Notes (with any exceptions
noted), substantially in the form attached as Exhibit C-3 hereto.
The
Trustee (or the Custodian on behalf of the Trustee) agrees, for the benefit
of
the Certificateholders and the NIMS Insurer, to review each Mortgage File and,
within 45 days of the Closing Date, to deliver to the Depositor, the NIMS
Insurer, the Trustee, the Servicer and the Master Servicer a certification
in
substantially the form attached hereto as Exhibit C-1 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 (1), (3), (12), (15) and (18)
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 (or the Custodian
on
behalf of the Trustee) shall deliver to the Depositor, the NIMS Insurer, the
Trustee, the Servicer and the Master Servicer a final certification in the
form
annexed hereto as Exhibit C-2 evidencing the completeness of the 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 an Originator under the related
Originator Master Agreement or the Seller in an 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 (or the Custodian on behalf of the Trustee) shall, at the written
request and expense of any Certificateholder, provide 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, receipt 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
acknowledgements of receipt and the certifications required under such sections
shall be performed by the Custodian pursuant to the terms and conditions of
this
Agreement.
| SECTION 2.03. |
Repurchase
or Substitution of Mortgage Loans by an Originator or the
Seller.
|
(a) Upon
receipt of written notice from the Custodian of any materially defective
document in, or that a document is missing from, a Mortgage File or from the
Depositor, a Servicer, the Master Servicer, the Trust Administrator or the
Custodian of the breach by an Originator or the Seller of any representation,
warranty or covenant under the related Originator Master Agreement or 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 Trustee shall promptly notify such
Originator, the Trust Administrator, the NIMS Insurer, the Seller, the Servicer
and the Master Servicer of such defect, missing document or breach and request
that the related Originator or the Seller, as applicable, deliver such missing
document or cure such defect or breach within 90 days from the date such
Originator or the Seller, as applicable, was notified of such missing document,
defect or breach, and if the Trustee receives written notice from the Depositor,
a Servicer, the Master Servicer, the Trust Administrator or the Custodian,
that
the related Originator or the Seller, as applicable, has not delivered such
missing document or cured such defect or breach in all material respects during
such period, the Trustee shall enforce the obligations of such Originator or
the
Seller, as applicable, under the related Master Agreement or Assignment
Agreement 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 in the Collection Account and the Trustee (or the Custodian
on behalf of the Trustee), upon receipt of written certification from the
Servicer of such deposit, shall release to the related Originator or the Seller,
as applicable, the related Mortgage File and the Trustee shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as the related
Originator or
the
Seller, as applicable, shall furnish to it and as shall be necessary to vest
in
such Originator or the Seller, as applicable, any Mortgage Loan released
pursuant hereto. In furtherance of the foregoing, if an 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 related 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 related 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. Neither the
Trustee nor the Custodian shall 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 related Originator Master Agreement or Assignment
Agreement, an 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 related 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 Originators 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 an Originator or the Seller, as applicable,
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by such 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 (or the Custodian on behalf of 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 and the Servicer, with respect to such
Qualified Substitute Mortgage Loan or Loans, a certification substantially
in
the form attached hereto as Exhibit C-1, 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 and the Servicer a certification substantially in the form of Exhibit
C-2 hereto 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 related 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 related 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 Trustee, 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 and the related Originator Master Agreement or Assignment Agreement,
as applicable, including, all applicable representations and warranties thereof
included therein.
For
any
month in which an 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 related 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 related 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, the related Originator or the Seller, as applicable, shall
deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In
addition, the related 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 Servicer, the NIMS Insurer, any 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
Trustee shall give written notice to the related Originator and the Seller.
In
connection therewith, the related Originator, the Seller or the Depositor 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 related 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
such Originator or the Seller, as the case may be, under the related Originator
Master Agreement or Assignment Agreement, or (ii) the Depositor, 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 Depositor, the related 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 Trust Administrator
and the Trustee, for the benefit of each of the Trustee, the Trust
Administrator, the Certificateholders and to the Depositor that as of the
Closing Date or as of such date specifically provided herein:
(i) The
Servicer is duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in the states where the 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 Servicer or to ensure the enforceability or validity
of each Mortgage Loan; the Servicer has the 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 Servicer 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 Servicer, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally; and all requisite corporate action has been taken
by the Servicer to make this Agreement valid and binding upon the Servicer
in
accordance with its terms;
(ii) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer and will not result in the material
breach of any term or provision of the charter or by-laws of the Servicer or
result in the breach of any term or provision of, or conflict with or constitute
a default under or result in the acceleration of any obligation under, any
material agreement, indenture or loan or credit agreement or other instrument
to
which the Servicer or its property is subject, or result in the violation of
any
law, rule, regulation, order, judgment or decree to which the Servicer or its
property is subject;
(iii) The
execution and delivery of this Agreement by the Servicer and the performance
and
compliance with its obligations and covenants hereunder do not require the
consent or approval of any governmental authority or, if such consent or
approval is required, it has been obtained;
(iv) This
Agreement, and all documents and instruments contemplated hereby which are
executed and delivered by the Servicer, constitute and will constitute valid,
legal and binding obligations of the Servicer, enforceable in accordance with
their respective terms, except as the enforcement thereof may be limited by
applicable bankruptcy laws and general principles of equity;
(v) The
Servicer 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;
(vi) There
is
no action, suit, proceeding or investigation pending or, to its knowledge,
threatened against the Servicer that, either individually or in the aggregate,
(A) may result in any change in the business, operations, financial condition,
properties or assets of the Servicer that might prohibit or materially and
adversely affect the performance by the Servicer of its obligations under,
or
validity or enforceability of, this Agreement, or (B) may result in any material
impairment of the right or ability of the Servicer to carry on its business
substantially as now conducted, or (C) would draw into question the validity
or
enforceability of this Agreement or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or (D)
would otherwise be likely to impair materially the ability of the Servicer
to
perform under the terms of this Agreement;
(vii) No
information, certificate of an officer, statement furnished in writing or report
delivered to the Trustee or the Trust Administrator by the Servicer in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact;
(viii) The
Servicer covenants that its computer and other systems used in servicing the
Mortgage Loans operate in a manner such that the Servicer can service the
Mortgage Loans in accordance with the terms of this Agreement;
(ix) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section 3.01;
(x) The
Servicer has accurately and fully reported, and will continue to accurately
and
fully report on a monthly basis, its borrower credit files to each of the three
national credit repositories in a timely manner;
(xi) The
Servicer is a member of MERS in good standing, and will 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; and
(xii) The
Servicer will transmit full-file credit reporting data for each Mortgage Loan
pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and that for each Mortgage
Loan,
the Servicer agrees to report one of the following statuses each month as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed or charged off.
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 to the Custodian on its behalf and shall inure to the benefit of
the
Trustee, the Trust Administrator, 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 Trustee and the Trust Administrator.
Subject to Section 7.01(a), the obligation of the Servicer set forth in Section
2.03(c) to cure breaches shall constitute the sole remedies against the Servicer
available to the Certificateholders, the Depositor, the Trust Administrator
or
the Trustee on behalf of the Certificateholders respecting a breach of the
representations, warranties and covenants contained in this Section
2.05.
(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, the NIMS Insurer and the Depositor that as of the Closing Date or
as
of such date specifically provided herein:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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,
(vii) 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
(viii) 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 Class 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 Class 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 the REMIC VI
Regular Interest SWAP-IO constitute the entire beneficial ownership interest
in
REMIC IV, REMIC V and REMIC VI.
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 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:
(i) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make Advances or Servicing Advances; or
(iv) 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 related 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 (the “Originator Prepayment Charge Payment Amount”). If a
Prepayment Charge is waived other than in accordance with (i), (ii), (iii)
or
(iv) above, the Servicer shall 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 (the “Servicer Prepayment
Charge Payment Amount”).
To
the
extent consistent with the foregoing, the Servicer shall seek to maximize the
timely and complete recovery of principal and interest on the Mortgage Notes.
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 or in the name of the Trustee, solely in its capacity as Trustee
of
the Trust, 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, 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 fifteen (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;
provided,
such
limited powers of attorney or other documents shall be prepared by the Servicer
and submitted to the Trustee for execution. 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 hereof, in accordance with the standards of the preceding
paragraph, the Servicer, on escrowed accounts, shall advance or cause to be
advanced funds as necessary for the purpose of effecting the payment of taxes
and assessments on the Mortgaged Properties, which advances shall be 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 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.
| SECTION 3.02. |
Sub-Servicing
Agreements Between Servicer and
Sub-Servicers.
|
(a) The
Servicer may enter into Sub-Servicing Agreements with Sub-Servicers, which
may
be Affiliates of the Servicer, for the servicing and administration of the
Mortgage Loans; provided, however, that (i) 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 the Servicer certifies
in writing to the Trustee 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 requirements conforming to the provisions set forth
in Section 3.08, 3.20, 3.21 and 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. Any material variations in any Sub-Servicing
Agreements 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 Trust Administrator, the Master Servicer, the
NIMS
Insurer and the Trustee 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 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 or the Trustee (if the Master
Servicer or the Trustee 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, any of 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
Trust
Administrator, 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, if the Master Servicer is the Servicer, the Trustee (or the successor
servicer appointed pursuant to Section 7.02), as applicable, 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 or the Trustee, as applicable, 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 Trustee (or the successor
servicer appointed pursuant to Section 7.02), as applicable, 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)
none of the Trust Administrator 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 or the
Trustee, as applicable, 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 make reasonable efforts, in accordance with the servicing
standards set forth in Section 3.01, to collect all payments called for under
the terms and provisions of the Mortgage Loans and the provisions of any
applicable insurance policies provided to the Servicer. 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 (iii) above
shall
not affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below. 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, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal
or
interest, postponements, or indulgences collectively referred to herein as
“forbearance”). The Servicer’s analysis supporting any forbearance and the
conclusion that any forbearance meets the standards of Section 3.01 shall be
reflected in writing in the Mortgage File or the Servicer’s books and
records.
| 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, fire, flood, and hazard insurance premiums,
hazard insurance proceeds (to the extent such amounts are to be applied to
the
restoration or repair of the property) 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 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
Servicing 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.
The Servicer will be responsible for the administration of the Servicing
Accounts and will be obligated to make Servicing Advances to such accounts
when
and as necessary to avoid the lapse of insurance coverage on the Mortgaged
Property, or which the Servicer knows, or in the exercise of the required
standard of care of the Servicer hereunder should know, is necessary to avoid
the loss of the Mortgaged Property due to a tax sale or the foreclosure as
a
result of a tax lien. If any such payment has not been made and the Servicer
receives notice of a tax lien with respect to the Mortgage being imposed, the
Servicer will, within 10 Business Days of receipt of such notice, advance or
cause to be advanced funds necessary to discharge such lien on the Mortgaged
Property. 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 Trust Administrator, 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:
(i) all
payments on account of principal, including Principal Prepayments (but not
Prepayment Charges), on the Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee) on each Mortgage
Loan;
(iii) 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);
(iv) 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;
(v) 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;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
Section 2.03, Section 3.16(c) or Section 9.01;
(vii) all
amounts required to be deposited in connection with Substitution Adjustments
pursuant to Section 2.03; and
(viii) all
Prepayment Charges collected by the Servicer, and any Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans.
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 on or before
4:00 p.m. New York time (i) on the Servicer Remittance Date, that portion of
the
Available Funds (calculated without regard to the references in 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, the amount
of all Prepayment Charges collected during the applicable Prepayment Period
by
the Servicer and Servicer Prepayment Charge Payment Amounts in connection with
the Principal Prepayment of any of the Mortgage Loans then on deposit in the
Collection Account, 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 $75,000 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 $75,000 as of the commencement
of
business on any Business Day and the Collection Account does not qualify as
an
Eligible Account pursuant to clauses (i), (iii) or (iv) of the definition of
“Eligible Account,” the Servicer shall, on or before 4:00 p.m. New York time on
such Business Day, withdraw from the Collection Account any and all amounts
payable or reimbursable to the Servicer, the Advancing Person, the Trustee,
the
Trust Administrator or any Sub-Servicer pursuant to Section 3.11 and shall
pay
such amounts to the Persons entitled thereto.
(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 Trust Administrator, the Depositor, 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. The Trust Administrator shall
give
notice to the NIMS Insurer, the Servicer and the Depositor of the location
of
the Distribution Account 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 in writing 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, with respect to items (i) through (iv) below, shall
deliver to the Trust Administrator from time to time for deposit, and the Trust
Administrator, with respect to items (i) through (iv) below, shall so deposit,
in the Distribution Account:
(i) any
Advances, as required pursuant to Section 4.03;
(ii) any
amounts required to be deposited pursuant to Section 3.23(d) or (f) in
connection with any REO Property;
(iii) any
amounts to be paid by the Servicer in connection with a purchase of Mortgage
Loans and REO Properties pursuant to Section 9.01;
(iv) any
Compensating Interest to be deposited pursuant to Section 3.24 in connection
with any Prepayment Interest Shortfall; and
(v) any
amounts required to be paid to the Trustee pursuant to the Agreement, including,
but not limited to Section 3.06 and Section 7.02.
(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 and Distribution
Account.
|
(a) 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
4.04:
(i) 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) and paid to the
Trust
Administrator in accordance with Section 3.10(d)(v);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for (a) any unreimbursed Advances
to the extent of amounts received which represent Late Collections (net of
the
related Servicing Fees), Liquidation Proceeds and Insurance Proceeds on Mortgage
Loans or REO Properties with respect to which such Advances were made in
accordance with the provisions of Section 4.04; or (b) without limiting any
right of withdrawal set forth in clause (vi) below, any unreimbursed Advances
that, upon a Final Recovery Determination with respect to such Mortgage Loan,
are Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Servicer for such unreimbursed
Advances;
(iii) 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, Liquidation
Proceeds and Insurance Proceeds received with respect to such Mortgage Loan
or
REO Property, and (c) without limiting any right of withdrawal set forth in
clause (vi) below, any Servicing Advances made with respect to a Mortgage Loan
that, upon a Final Recovery Determination with respect to such Mortgage Loan
are
Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Servicer or any Sub-Servicer
for
Servicing Advances;
(iv) to
pay to
the Servicer as additional 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;
(v) to
pay
itself or the Originator or the Seller 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;
(vi) to
reimburse the Servicer for (a) any Advance or Servicing Advance previously
made
which the Servicer has determined to be a Nonrecoverable Advance in accordance
with the provisions of Section 4.03 and (b) following the liquidation of a
second lien Mortgage Loan, any unpaid Servicing Fees for the six-month period
immediately following the last paid through date with respect to such Mortgage
Loan, to the extent not recoverable from Liquidation Proceeds, Insurance
Proceeds or other amounts received with respect to the related second lien
Mortgage Loan;
(vii) 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);
(viii) to
reimburse the Servicer or the Depositor for expenses incurred by or reimbursable
to the Servicer or the Depositor pursuant to Section 6.03;
(ix) to
reimburse the NIMS Insurer, the Servicer, the Trust Administrator, the Master
Servicer or the Trustee, as the case may be, for expenses reasonably incurred
in
respect of the breach or defect giving rise to the purchase obligation under
Section 2.03 of this Agreement that were included in the Purchase Price of
the
Mortgage Loan, including any expenses arising out of the enforcement of the
purchase obligation;
(x) to
pay
itself any Prepayment Interest Excess (to the extent not otherwise
retained);
(xi) to
reimburse the Servicer for any Advance or Servicing Advance made with respect
to
a delinquent Mortgage Loan which has been modified by the Servicer in accordance
with the terms of this Agreement but only after receipt by the Servicer of
three
(3) consecutive payments following such modification;
(xii) to
invest
funds in Permitted Investments in accordance with Section 3.12;
(xiii) to
clear
and terminate the Collection Account pursuant to Section 9.01; and
(xiv) to
make
reimbursements for amounts owed on Mortgage Loans on or prior to the Cut-off
Date pursuant to Section 2.01 of this Agreement.
(b) The
foregoing requirements for withdrawal from the Collection Account shall be
exclusive. In the event the Servicer shall deposit in the Collection 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 the Collection Account, any provision herein
to
the contrary notwithstanding.
(c) 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 (ii), (iii), (iv), (v), (vi) and (vii) above. The Servicer shall
provide written notification to the NIMS Insurer and the Trust Administrator,
on
or prior to the next succeeding Servicer Remittance Date, upon making any
withdrawals from the Collection Account pursuant to subclause (vi) 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 hereof.
| SECTION 3.12. |
Investment
of Funds in the Collection Account.
|
(a) The
Servicer may direct any depository institution maintaining the Collection
Account and REO Account to invest the funds on deposit in such accounts or
to
hold such funds uninvested (each such account, for the purposes of this Section
3.12, an “Investment Account”). All investments pursuant to this Section 3.12
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 an Investment Account shall be made in the name of the Trust
Administrator (in its capacity as such), or in the name of a nominee of the
Trust Administrator. The Trust Administrator shall be entitled to sole
possession (except with respect to investment direction of funds held in the
Collection Account and 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 or 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 Account 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 Trust
Administrator 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 hazard insurance
with extended coverage on the Mortgaged Property in an amount which is at least
equal to the least of (i) the current 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
hazard 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 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
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 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 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 on terms substantially equivalent to those
commercially available and maintained by competent servicers, 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 servicer
of the Mortgage Loans, the Servicer agrees to prepare and present, on behalf
of
itself, the Trustee, the Trust Fund 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
▇▇▇▇▇▇ ▇▇▇ 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 also maintain a fidelity bond in the form and
amount that would meet the requirements of ▇▇▇▇▇▇ Mae 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 without
thirty days’ prior written notice to the Trust Administrator 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.
| SECTION 3.15. |
Enforcement
of Due-On-Sale Clauses; Assumption
Agreements.
|
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that the Servicer shall
not be required to take such action if in its sole business judgment the
Servicer believes it is not in the best interests of the Trust Fund and shall
not exercise any 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, or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into an assumption
and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. The Servicer is also authorized,
to
the extent permitted under the related Mortgage Note, to enter into a
substitution of liability agreement with such person, pursuant to which the
original Mortgagor is released from liability and such person is substituted
as
the Mortgagor and becomes liable under the Mortgage Note, provided that no
such
substitution shall be effective unless such person satisfies the underwriting
criteria of the Servicer for a mortgage loan similar to the Mortgage Loan.
In
connection with any assumption, modification or substitution, the Servicer
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. The Servicer shall not
take
or enter into any assumption and modification agreement, however, unless (to
the
extent practicable in the circumstances) it shall have received confirmation,
in
writing, of the continued effectiveness of any applicable hazard insurance
policy. Any fee collected by the Servicer in respect of an assumption,
modification or substitution of liability agreement shall be retained by the
Servicer as additional servicing compensation. In connection with any such
assumption, no material term of the Mortgage Note (including but not limited
to
the related Mortgage Rate and the amount of the Monthly Payment) may be amended
or modified, except as otherwise required pursuant to the terms thereof. The
Servicer shall notify the Master Servicer, the Trust Administrator and the
Custodian that any such substitution, modification or assumption agreement
has
been completed by forwarding to the Custodian the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered
a
part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
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(a) 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
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.
The
Servicer shall forward a copy of the environmental audit report to the
Depositor, the Master Servicer and the NIMS Insurer. Notwithstanding the
foregoing, if such environmental audit reveals, or if the Servicer has actual
knowledge or notice, that such Mortgaged Property contains such 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)(vii), 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 Section 3.11(a)(vii), 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 its option, 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. 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. If the Servicer or the NIMS Insurer purchases any delinquent Mortgage
Loans pursuant to this Section 3.16(c), it must 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 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 deposit in the Collection Account
of
the amount of the Purchase Price. Upon the satisfaction of the requirements
set
forth in Section 3.17(a), the Custodian on behalf of the Trustee shall
immediately deliver the Mortgage File and any related documentation to the
Servicer or the NIMS Insurer and the Trustee will execute such documents
provided to it as are necessary to convey the Mortgage Loan 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 make reimbursements for
amounts owed on the Mortgage Loans on or prior to the Cut-off Date pursuant
to
Section 2.01 of this Agreement, second, to unpaid Servicing Fees; third, to
reimburse the Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances pursuant to Section 3.11(a)(iii) and Advances pursuant to
Section 3.11(a)(ii); fourth, 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 fifth, 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)(iii).
| 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 will immediately notify the Custodian, on behalf
of
the Trustee by a certification and shall deliver to the Custodian, 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
Custodian shall (pursuant to the terms of this Agreement) promptly release
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. 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 Custodian shall (pursuant to the terms
of
this Agreement), upon any request made by or on behalf of the Servicer and
delivery to the Custodian, in written (with two executed copies) or electronic
format, of a Request for Release in the form of Exhibit E 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 to the Servicer within three Business Days, and the Trustee shall,
at the written 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 or
charged off 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 to the Custodian, on behalf
of
the Trustee, a certificate of a Servicing Officer certifiying as to such
liquidation or action or proceedings. Upon the request of the Custodian, the
Servicer shall provide notice to the Custodian 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 (with two executed copies) 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, such Mortgage Loan shall be released
by the Custodian, on behalf of the Trustee, 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, copies of,
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 or as otherwise
provided in Section 3.11, subject to Section 3.24. In addition, the Servicer
shall be entitled to recover unpaid Servicing Fees out of Insurance Proceeds,
Liquidation Proceeds or condemnation proceeds to the extent permitted by Section
3.11(a)(iii) and out of amounts derived from the operation and sale of an REO
Property to the extent permitted by Section 3.23. Except as provided in Section
3.26 or 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.
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges, ancillary income or otherwise (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)(iv) 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 also be entitled
to
receive Prepayment Interest Excess pursuant to Section 3.10 and 3.11 as
additional servicing compensation. 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
to the Trust Administrator; Collection Account
Statements.
|
Not
later
than twenty 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 such statement is delivered by the Servicer to the Trust
Administrator.
| SECTION 3.20. |
Statement
as to Compliance.
|
The
Servicer, the Master Servicer and the Trust Administrator shall deliver (or
otherwise make available) (and each of the Servicer, the Master Servicer and
the
Trust Administrator shall cause any Sub-Servicer subject to Item 1108(a)(2)
of
Regulation AB engaged by it to deliver) to the Trust Administrator (and the
Trust Administrator shall deliver (or otherwise make available) to the
Depositor) on or before March 15th
(with no
cure period) of each year, commencing in March 2007, an Officer’s Certificate
stating, as to the signer thereof, that (A) a review of such party’s activities
during the preceding calendar year or portion thereof and of such party’s
performance under this Agreement, or such other applicable agreement in the
case
of a Sub-Servicer subject to Item 1108(a)(2) of Regulation AB, has been made
under such officer’s supervision and (B) to the best of such officer’s
knowledge, based on such review, such party has fulfilled all its obligations
under this Agreement, or such other applicable agreement in the case of a
Sub-Servicer subject to Item 1108(a)(2) of Regulation AB, in all material
respects throughout such year or portion thereof, 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 thereof. The
Custodian, in its capacity as such, shall not be required to deliver such
Officer’s Certificate.
The
Master Servicer shall include all annual statements of compliance received
by it
from each Servicer with its own annual statement of compliance to be submitted
to the Trust Administrator pursuant to this Section.
In
the
event the Servicer, the Master Servicer, the Trust Administrator or any
Sub-Servicer subject to Item 1108(a)(2) of Regulation AB engaged by any such
party is terminated or resigns pursuant to the terms of this Agreement, or
any
applicable agreement in the case of a Sub-Servicer subject to Item 1108(a)(2)
of
Regulation AB, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.20 or the relevant section of such other
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
Failure
of the Servicer to timely comply with this Section 3.20 shall be deemed a
Servicer Event of Default, and upon receipt of written notice from the Trust
Administrator of such Servicer Event of Default, the Trustee or the Master
Servicer, as applicable, may at the direction of the Depositor, in addition
to
whatever rights the Trustee or the Master Servicer, as applicable, may have
under this Agreement and at law or in 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 (other than the Servicer’s rights to
reimbursement of unreimbursed Advances and Servicing Advances and accrued and
unpaid Servicing Fees in the manner provided in this Agreement). This paragraph
shall supersede any other provision in this Agreement or any other agreement
to
the contrary.
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.
|
(a) By
March
15th
(with no
cure period) of each calendar year during which a Form 10-K is required to
be
filed pursuant to Section 4.06 hereunder, commencing in March 2007, the
Servicer, the Master Servicer, the Trust Administrator and the Custodian, each
at its own expense, shall furnish or otherwise make available, and each such
party shall cause any Servicing Function Participant engaged by it to furnish,
each at its own expense, to the Trust Administrator (and the Trust Administrator
shall furnish or otherwise make available to the Depositor), a report on an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form
10-K
required to be filed pursuant to Section 4.06,
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting
firm
has issued an attestation report on such party’s assessment of compliance with
the Relevant Servicing Criteria as of and for such period (the “Attestation
Report”). The Custodian, in its capacity as such and any Servicing Function
Participant, shall deliver such assessment of compliance only for so long as
the
Trust is subject to the Exchange Act reporting requirements.
Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Servicer,
the
Master Servicer, the Trust Administrator and the Custodian, and any Servicing
Function Participant engaged by such parties, as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by each such
party, and (ii) the Trust Administrator shall confirm that the assessments,
taken as a whole, address all of the Servicing Criteria and taken individually
address the Relevant Servicing Criteria for each party as set forth on Exhibit
O
and notify the Depositor of any exceptions.
The
Master Servicer shall include all annual reports on assessment of compliance
received by it from the Servicers with its own assessment of compliance to
be
submitted to the Trust Administrator pursuant to this Section.
In
the
event the Servicer, the Master Servicer, the Trust Administrator, the Custodian,
or any Servicing Function Participant engaged by any such party is terminated,
assigns its rights and obligations under, or resigns pursuant to, the terms
of
this Agreement, or any other applicable agreement, as the case may be, such
party shall provide a report on assessment of compliance pursuant to this
Section 3.21, or the relevant section of such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
(b) By
March
15th
(with no
cure period) of each year, commencing in March 2007, the Servicer, the Master
Servicer, the Trust Administrator and the Custodian, each at its own expense,
shall cause, and each such party shall cause any Servicing Function Participant
engaged by it to cause, each at its own expense, a registered public accounting
firm (which may also render other services to the Servicer, the Master Servicer,
the Trust Administrator, the Custodian, or such other Servicing Function
Participants, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish an attestation report to the Trust
Administrator and the Depositor, to the effect that (i) it has obtained a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (ii) on the basis of an examination conducted by such
firm in accordance with standards for attestation engagements issued or adopted
by the Public Company Accounting Oversight Board, it is expressing an opinion
as
to whether such party’s compliance with the Relevant Servicing Criteria was
fairly stated in all material respects, or it cannot express an overall opinion
regarding such party’s assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for general use and
not contain restricted use language.
Promptly
after receipt of each such assessment of compliance and attestation report,
the
Trust Administrator shall confirm that each assessment submitted pursuant to
Section 3.21(a) is coupled with an attestation meeting the requirements of
this
Section and notify the Depositor of any exceptions.
The
Master Servicer shall include each such attestation furnished to it by the
Servicers with its own attestation to be submitted to the Trust Administrator
pursuant to this Section.
In
the
event the Servicer, the Master Servicer, the Trust Administrator, the Custodian,
or any Servicing Function Participant engaged by any such party, is terminated,
assigns its rights and duties under, or resigns pursuant to the terms of, this
Agreement, or any applicable custodial agreement or sub-servicing agreement,
as
the case may be, such party shall cause a registered public accounting firm
to
provide an attestation pursuant to this Section 3.21(b), or the relevant section
of such other applicable agreement, notwithstanding any such termination,
assignment or resignation.
(c) Failure
of the Servicer to timely comply with this Section 3.21 shall be deemed a
Servicer Event of Default, and upon written receipt of notice (which notice
may
be delivered electronically) from the Trust Administrator of such Servicer
Event
of Default, the Trustee or the Master Servicer, as applicable, at the direction
of the Depositor 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 (other than the
Servicer’s rights to reimbursement of unreimbursed Advances and Servicing
Advances and accrued and unpaid Servicing Fees in the manner provided in this
Agreement). This paragraph shall supersede any other provision in this Agreement
or any other agreement to the contrary.
Each
of
the Servicer, the Master Servicer, the Trust Administrator and the Custodian
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.
The
parties hereto acknowledge that the Custodian shall be required to comply with
the provisions of this Section 3.21 only for so long as the Trust is subject
to
the Exchange Act reporting requirements.
If
the
indemnifications provided for herein are unavailable or insufficient to hold
harmless any indemnified party, then the indemnifying party agrees that it
shall
contribute to the amount paid or payable by such indemnified party as a result
of any claims, losses, damages or liabilities incurred by such indemnified
party
in such proportion as is appropriate to reflect the relative fault of such
indemnified party on the one hand and the indemnifying party on the other.
This
indemnification shall survive the termination of this Agreement or the
termination of the indemnifying party.
Notwithstanding
the foregoing, in no event shall the Custodian be liable for any consequential,
indirect or punitive damages pursuant to 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
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.
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. In
addition, access to the documentation regarding the Mortgage Loans will be
provided to the Trust Administrator, the NIMS Insurer, the Trustee, on behalf
of
the Certificateholders or a prospective transferee of a Certificate, 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. 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 (the cost of
which shall constitute a Servicing Advance) 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 Trust
Administrator, the Trustee and the NIMS Insurer an Opinion of Counsel acceptable
to the NIMS Insurer and addressed to the Trust Administrator, the Trustee,
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:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain, operate and dispose of 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, none of the Servicer, the Trust Administrator or 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 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
(iv) 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 deposit
into
the Distribution Account in accordance with Section 3.10(d)(ii), 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 in a manner, at such price and upon such terms
and conditions as shall be normal and usual in the servicing standard 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.
|
Not
later
than 2:00 p.m. New York time on each Servicer Remittance Date, the Servicer
shall remit to the Distribution Account an amount (“Compensating Interest”)
equal to the lesser of (A) the aggregate of the Prepayment Interest Shortfalls
for the related Distribution Date and (B) its aggregate Servicing Fee received
in the related Due Period. The Servicer shall not have the right to
reimbursement for any amounts remitted to the Trust Administrator in respect
of
Compensating Interest. Such amounts so remitted shall be included in the
Available Funds and distributed therewith on the next Distribution Date. The
Servicer shall not be obligated to pay Compensating Interest with respect to
Relief Act Interest Shortfalls or Principal Prepayments in full occurring from
the Cut-off Date through March 15, 2006.
| 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 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
|
The
Servicer is hereby authorized to enter into a financing or other facility (any
such arrangement, an “Advance Facility”) under which (1) 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 (2) an Advancing Person
agrees to fund some or all Advances and/or Servicing Advances required to be
made by the Servicer pursuant to this Agreement. No consent of the Depositor,
the Trustee, the Trust Administrator, the Certificateholders or any other party
shall be required before the Servicer may enter into an Advance Facility. The
Servicer shall notify each other party to this Agreement prior to or promptly
after entering into or terminating any 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. 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 (“Advance Reimbursement Amounts”) and/or Servicing Advances including
Nonrecoverable Advances (“Servicing Advance Reimbursement Amounts” and together
with Advance Reimbursement Amounts, “Reimbursement Amounts”) (in each case to
the extent such type of Reimbursement Amount is included in the Advance
Facility), as applicable, pursuant to this Agreement, then, the Servicer shall
identify such Reimbursement Amounts consistent with the reimbursement rights
set
forth in Section 3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement
Amounts in accordance with Section 3.10(b) or otherwise 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 anything to the contrary herein, in no event
shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts
be included in the Available Funds or distributed to
Certificateholders.
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 or the Advancing Person had made the related Advance(s) and/or
Servicing Advance(s). Notwithstanding the foregoing, except with respect to
reimbursement of Nonrecoverable Advances as set forth in this Agreement, no
Person shall be entitled to reimbursement from funds held in the Collection
Account for future distribution to Certificateholders pursuant to this
Agreement. None of the Depositor, the Trust Administrator or the Trustee shall
have any duty or liability with respect to the calculation or payment of any
Reimbursement Amount, nor shall the Depositor, the Master Servicer, the Trust
Administrator or the Trustee 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 and (upon request) the Trust
Administrator a detailed accounting on a loan by loan basis as to amounts
advanced by, sold, 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.
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
hereunder are limited to the funding or purchase of Advances and/or Servicing
Advances shall not be required to meet the criteria for qualification of a
subservicer set forth in this Agreement.
Reimbursement
Amounts distributed with respect to each Mortgage Loan shall be allocated to
outstanding 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 documentation shall also require the Servicer to provide to the related
Advancing Person or Advance Facility Trustee loan by loan information with
respect to each Reimbursement Amount distributed to such Advancing Person or
Advance Facility Trustee, to enable the Advancing Person or Advance Facility
Trustee to make the FIFO allocation of each Reimbursement Amount with respect
to
each Mortgage Loan. The Servicer shall remain entitled to be reimbursed for
all
Advances and Servicing Advances funded by the Servicer to the extent the related
rights to be reimbursed therefor have not been sold, assigned or pledged to
an
Advancing Person.
The
Servicer shall indemnify the Depositor, the Trustee, the Master Servicer, the
Trust Administrator, any successor servicer and the Trust Fund resulting from
any claim by the related Advancing Person arising out of the Advance Facility,
except to the extent that such claim, loss, liability or damage resulted from
or
arose out of negligence, recklessness or willful misconduct or breach of its
duties hereunder on the part of the Depositor, the Trust Administrator, the
Trustee or any successor servicer.
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 Trustee, the Trust
Administrator, the Depositor and the Servicer without the consent of any
Certificateholder, provided such amendment complies with Section 11.01 hereof.
All reasonable costs and expenses (including attorneys’ fees) of each party
hereto of any such amendment shall be borne solely by the Servicer. Prior to
entering into an Advance Facility, the Servicer shall notify the Advancing
Person in writing that: (a) the Advances and/or Servicing Advances purchased,
financed by and/or pledged to the Advancing Person are obligations owed to
the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances and/or Servicing
Advances only to the extent provided herein, and the Trustee, the Trust
Administrator and the Trust are not otherwise obligated or liable to repay
any
Advances and/or Servicing Advances financed by the Advancing Person; (b) the
Servicer will be responsible for remitting to the Advancing Person the
applicable amounts collected by it as reimbursement for Advances and/or
Servicing Advances funded by the Advancing Person, subject to the restrictions
and priorities created in this Agreement; and (c) neither the Trustee nor the
Trust Administrator shall have any responsibility to track or monitor the
administration of the Advance Facility between the Servicer and the Advancing
Person.
| SECTION 3.27. |
Solicitations.
|
The
Servicer shall not take any action or cause any action to be taken by any of
its
employees, agents or Affiliates, or by any independent contractors acting on
the
Servicer’s behalf, to solicit any borrower in any manner whatsoever, including
but not limited to, soliciting a borrower to prepay or refinance a Mortgage
Loan. Furthermore, neither the Servicer nor any of its Affiliates shall directly
or indirectly provide information to any third party for purposes of soliciting
the borrowers related to the Mortgage Loans. It is understood that promotions
undertaken by the Servicer or its Affiliates which are directed to the general
public at large (i.e., newspaper advertisements, radio or T.V. ads, etc.) and
not specifically directed to the borrowers related to the Mortgage Loans shall
not constitute a breach of this Section 3.27. From and after the Closing Date,
Servicer hereby agrees that Servicer will not take any action or cause any
action to be taken by any of its agents or Affiliates, or by any independent
contractors or independent mortgage brokerage companies on the Servicer’s
behalf, to personally, by telephone or mail, solicit the borrower under any
Mortgage Loan for the purpose of refinancing such Mortgage Loan; provided,
that
Servicer may solicit any borrower for whom Servicer has received a request
for
verification of mortgage, a request for demand for payoff, a borrower initiated
written or verbal communication indicating a desire to prepay the related
Mortgage Loan, or the borrower initiates a title search, provided further,
it is
understood and agreed that promotions undertaken by the Servicer or any of
its
affiliates which concern optional insurance products or other additional
products shall not constitute solicitation nor is the Servicer prohibited from
responding to unsolicited requests or inquiries made by a borrower or an agent
of a borrower. Notwithstanding the foregoing, the following solicitations,
if
undertaken by the Servicer or any Affiliate of the Servicer, shall not be
prohibited: (i) solicitations or promotions that are directed to the general
public at large, including, without limitation, mass mailings based on mailing
lists and newspaper, radio, television and other mass media advertisements
and
(ii) borrower messages included on, and statement inserts provided with, the
monthly statements sent to borrowers; provided, however, that similar messages
and inserts are sent to all other borrowers of similar type mortgage loans
serviced by the Servicer and such Affiliates, including, but not limited to,
those mortgage loans serviced for the Servicer’s and/or such Affiliates own
account; and (iii) solicitations made as a part of a campaign directed to
borrowers with mortgage loans meeting certain defined parameters (other than
parameters relating to the borrowers or the Mortgage Loans specifically),
provided, that such solicitations are made to all borrowers of mortgage loans
serviced by the Servicer and such Affiliates with respect to mortgage loans
meeting such defined parameters, including, but not limited to, those mortgage
loans serviced for the Servicer’s and/or such Affiliates own
account.
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 reasonably 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.
|
The
Master Servicer shall be responsible for reporting to the Trustee, the Trust
Administrator and the Depositor the non-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 good faith 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.
The
Master
Servicer (or if the Master Servicer is the Servicer, the Trustee), for
the
benefit of the Certificateholders, shall enforce the obligations of the Servicer
under this Agreement, and shall, in the event that it receives notice and
confirms that the Servicer has failed to perform its obligations in accordance
with this Agreement, subject to the preceding paragraph, terminate the rights
and obligations of the Servicer hereunder and in accordance with the provisions
of Article VII of this Agreement 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 or Trustee, as applicable, in its good faith
business judgment, would require were it the owner of the Mortgage Loans. The
Master Servicer or the Trustee, as applicable, shall pay the costs of such
enforcement at its own expense, provided that the Master Servicer or the
Trustee, as applicable, shall not be required to prosecute or defend any legal
action except to the extent that the Master Servicer or the Trustee, as
applicable, shall have received reasonable indemnity for its costs and expenses
in pursuing such action.
To
the
extent that the costs and expenses of the Master Servicer or Trustee, as
applicable, related to any termination of the Servicer, appointment of a
successor servicer or the transfer and assumption of servicing by the Master
Servicer or the Trustee, as applicable, with respect to this Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of 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 or the Trustee, as applicable, shall
be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
The
Master Servicer (or if the Master Servicer is the Servicer, the Trustee) shall,
upon receipt from the Servicer, the Master Servicer or the Trust Administrator,
of notice of any failure of the Servicer to comply with the remittance
requirements and other obligations set forth in this Agreement, enforce such
obligations.
If
the
Master Servicer or the Trustee, as applicable, 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.
| 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.
|
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 its Master Servicer Fee 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.
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 shall be entitled to the Master Servicer Fee with respect to
each Mortgage Loan payable solely from payments of interest in respect of such
Mortgage Loan. The Master Servicer will also 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
compensation payable to the Master Servicer for the related collection period
under this Agreement. 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 subrogated 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.
|
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 received from the Servicer or made by the Master Servicer or (if the
Master Servicer is the Servicer) the Trustee (in each case in its capacity
as
successor servicer), and any payments of Compensating Interest received from
the
Servicer or made by the Master Servicer (unless, in the case of the Master
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.
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) the Master Servicer Fee, (B)
late payment charges or assumption, tax service, statement account or payoff,
substitution, satisfaction, release and other like fees and charges and (C)
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.
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.
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.
|
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 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.
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), to the Trustee pursuant to Section 3.06, Section 7.02 or
Section 8.05 or to the 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.
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) (a)
to
pay to the Master Servicer any unpaid Master Servicer Fees and (b) to reimburse
the Master Servicer or (if the Master Servicer is the Servicer) the Trustee
(to
the extent either of them is obligated to do so as successor Servicer) for
any
Advance of its own funds, the right of the Master Servicer or the Trustee,
as
applicable, 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 (or if the Master Servicer is the Servicer) the
Trustee (to the extent either of them is obligated to do so as successor
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
compensation to the Trust Administrator on each Distribution Date;
(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;
(xiv) to
clear
and terminate the Distribution Account pursuant to Section 9.01; and
(xv) to
make
distributions to the Swap Account.
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.
On
or
before the Business Day prior to each Distribution Date, the Master Servicer
or
(if the Master Servicer is the Servicer) the Trustee (to the extent either
of
them is obligated to do so as successor Servicer) shall remit to the Trust
Administrator for deposit in the Distribution Account any Advances required
to
be made and the Master Servicer shall deposit in the Distribution Account any
Compensating Interest required to be paid, in either such case by the Master
Servicer or the Trustee, as applicable, 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 Group
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:
(i) to
Holders of REMIC I Regular Interest I, REMIC I Regular Interest I-1-A through
I-60-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.
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(1)
above, payments of principal shall be allocated as follows: (A) first, to REMIC
I Regular Interest I and then to REMIC I Regular Interests I-1-A through I-60-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
(B) second, to the extent of any Overcollateralization Reduction Amounts, first
to REMIC I Regular Interest I until the Uncertificated Balance of such REMIC
I
Regular Interest is reduced to zero, then, to REMIC I Regular Interests I-1-A
through I-60-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.
(iii) to
the
Holders of REMIC I Regular Interest I-LTP, (A) all amounts representing
Prepayment Charges (other
than any Originator Prepayment Charge Payment Amount)
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:
(i) 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.
(ii) 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-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 and REMIC II
Regular Interest II-LTM11 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
(iii) 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 (other than any Originator
Prepayment Charge Payment Amount) 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;
(iv) 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 and REMIC II Regular
Interest II-LTM11, 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 (i) REMIC II Regular Interest II-LTAA and REMIC II Regular Interest
II-LTZZ, respectively; once the Uncertificated Principal Balances 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, and REMIC II Regular Interest II-LTM11 have been reduced to
zero.
On
each
Distribution Date, all amounts representing Prepayment Charges (other than
any
Originator Prepayment Charge Payment Amount) in respect of the Mortgage Loans
during the related Prepayment Period will be distributed by REMIC II to the
Holders of REMIC II Regular Interest II-LTP. The payment of the foregoing
amounts to the Holders of REMIC II Regular Interest II-LTP shall not reduce
the
Uncertificated Balance thereof.
(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:
(i) 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
(ii) 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 Certificates, the Class M-10 Certificates and the
Class M-11 Certificates, in that order, 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:
(i) 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
(ii) 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 Certificates, the Class M-10 Certificates and the
Class M-11 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:
(iii) 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;
(iv) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates and
the
Class M-3 Certificates, the Sequential Class M Principal Distribution Amount
until the Certificate Principal Balances thereof have been reduced to
zero;
(v) 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;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) 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;
(x) 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;
(xi) 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;
and
(xii) 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.
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. Notwithstanding any provisions contained in this Agreement to the
contrary, on any Distribution Date on which the aggregate Certificate Principal
Balance of the Subordinate Certificates has been reduced to zero, all
distributions of principal to the Class A Certificates shall 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:
(i) 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 Cap Contract and the Interest Rate Swap Agreement, distributable to such
Holders as part of the Principal Distribution Amount, as applicable, as
described under Section 4.01(b) above;
(ii) 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 and Class M-11 Certificates, in that
order, in each case first, in an amount equal to the Unpaid Interest Shortfall
Amount allocable to such Certificates and second, in an amount equal to the
Allocated Realized Loss Amount allocable to such Certificates;
(iii) 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 Cap
Contract and the Interest Rate Swap Agreement;
(iv) to
the
Swap Provider, any Swap Termination Payments resulting from a Swap Provider
Trigger Event;
(v) 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;
(vi) 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
(vii) 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 remaining 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:
(i)
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
(ii) sequentially,
to 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 and Class M-11 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, (ii) any Originator
Prepayment Charge Payment Amounts or (iii) 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:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement for such Distribution Date;
(ii) 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;
(iii) 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;
(iv) 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 and Class M-11 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;
(v) 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;
(vi) 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 and Class M-11 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;
(vii) concurrently,
to each Class of Class A Certificates, the 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; and
(viii) 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 and Class M-11 Certificates, in that
order, the Net WAC Rate Carryover Amount, to the extent remaining undistributed
after distributions are made from the Net WAC Rate Carryover Reserve
Account.
(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 and Class M-11 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 and Class M-11 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 and Class M-11 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:
(i) 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
(ii) 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.
|
On
each
Distribution Date, based (in part), as applicable, on information provided
to
the Trust Administrator by the Master Servicer (which in turn shall be based
(in
part), 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:
(i) 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, Originator Prepayment Charge
Payment Amounts and Servicer Prepayment Charge Payment Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to interest;
(iii) the
fees
and expenses of the Trust accrued and paid on such Distribution Date and to
whom
such fees and expenses were paid;
(iv) the
aggregate amount of Advances for such Distribution Date (including the general
purpose of such Advances);
(v) the
aggregate Stated Principal Balance of the Mortgage Loans and any REO Properties
as of the last day of the related Due Period;
(vi) 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;
(vii) the
number and aggregate unpaid 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, not including
Liquidated Mortgage Loans as of the end of the related Prepayment Period, (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 and with respect to (a), (b) and (c)
above, delinquencies shall be determined by and reported utilizing the OTS
methodology;
(viii) 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;
(ix) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(x) the
Delinquency Percentage;
(xi) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, which will include the aggregate amount of Subsequent Recoveries
received during the related Prepayment Period and 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;
(xii) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(xiii) the
aggregate Certificate Principal Balance and Notional Amount, as applicable,
of
each Class of Certificates, before and 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;
(xiv) the
Certificate Factor for each such Class of Certificates applicable to such
Distribution Date;
(xv) 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;
(xvi) 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;
(xvii) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(xviii) 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;
(xix) the
respective Pass-Through Rates applicable to the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates for such Distribution
Date
(and whether such Pass-Through Rate was limited by the Net WAC
Rate);
(xx) the
Aggregate Loss Severity Percentage;
(xxi) whether
the Stepdown Date or a Trigger Event is in effect;
(xxii) the
total
cashflows received and the general sources thereof;
(xxiii) the
Available Funds;
(xxiv) 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;
(xxv) payments,
if any, made under the Cap Contract and the amount of any Net Swap Payments
or
Swap Termination Payments; and
(xxvi) unless
otherwise set forth in the Form 10-D relating to such Distribution Date,
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 and the aggregate number of Mortgage Loans which have been
modified, waived or amended since the Closing Date; and
(xxvii) the
applicable Record Dates, Accrual Periods and Determination Dates for calculating
distributions for such Distribution Date.
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 (i) through (iii) 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 (i)
through (iii) 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 on each Significance Percentage
Calculation Date 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 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.
The
Trust
Administrator shall calculate the Significance Percentage in accordance with
the
definition of “Significance Percentage” as set forth herein.
| SECTION 4.03. |
Remittance
Reports, Advances.
|
(a) On
the
2nd Business Day following the Determination Date, but in no event later than
noon on the 18th calendar day (or, if such 18th day is not a Business Day (other
than a Saturday), then on the next succeeding Business Day, or, if such 18th
day
is a Saturday, then on the preceding Business Day), the Servicer shall furnish
to the Trust Administrator, the NIMS Insurer and the Credit Risk Manager a
monthly remittance advice (which together with any supplemental reports is
known
as the “Remittance Report”) in a format attached as Exhibit R-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 will also include a delinquency report
substantially in the form set forth in Exhibit R-1 and a realized loss report
substantially in the form set forth in Exhibit R-3 (or in either case, such
other format as mutually agreed to between the Servicer and the Trust
Administrator). No later than 3 Business Days after the 15th day of each
calendar month, the Servicer shall furnish to the Trust Administrator a monthly
report containing such information regarding prepayments in full on Mortgage
Loans during the applicable Prepayment Period in a format as mutually agreed
to
between the Servicer and the Trust Administrator..
(b) With
respect to any Mortgage Loan on which a Monthly Payment was due during the
related Due Period and delinquent on the related Determination Date, the amount
of the Servicer’s Advance will be equal to the Monthly Payment (net of the
related Servicing Fee) that would have been due on the related Due Date in
respect of the related Mortgage Loan. With respect to each REO Property, which
REO Property was acquired during or prior to the related Prepayment Period
and
as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the Monthly
Payment (net of the related Servicing Fee) that would have been due on the
related Due Date in respect of the related Mortgage Loan, over the net income
from such REO Property deposited in the Collection Account pursuant to Section
3.23 for distribution on such Distribution Date.
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 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 the 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. Any amounts held for future distribution
used by the Servicer to make a 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 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 the
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.
(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 or REO Property, shall continue until a Final
Recovery Determination in connection therewith or the removal thereof from
the
Trust Fund pursuant to any applicable provision of this Agreement, except as
otherwise provided in this Section. With respect however to Balloon Mortgage
Loans, the Servicer shall not be required to make any Advances covering the
Balloon Payment.
(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 a certification of a Servicing Officer delivered to the Trust
Administrator (whereupon, upon receipt of such certification, the Trust
Administrator shall forward a copy of such certification to the Depositor,
the
Trustee, the NIMS Insurer and the Credit Risk Manager). Notwithstanding the
foregoing, if following the application of Liquidation Proceeds on any Mortgage
Loan that was the subject of a Final Recovery Determination, any Servicing
Advance with respect to such Mortgage Loan shall remain unreimbursed to the
Servicer, then without limiting the provisions of Section 3.11(a), a
certification of a Servicing Officer regarding such Nonrecoverable Servicing
Advance shall not be required to be delivered by the Servicer to the Trust
Administrator.
(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 or (if the Master Servicer is the Servicer) the Trustee
(in
its respective 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 the Trustee’s (or other successor servicer’s) determination of
recoverability. The Servicer, the Master Servicer or the Trustee, as applicable
(or other successor servicer) shall not be required to make any Advance to
cover
any Relief Act Interest Shortfall on any Mortgage Loan or shortfalls relating
to
bankruptcy proceedings. If the Master Servicer or the Trustee, as applicable
(or
other successor servicer) is required to make any Advances, such advances may
be
made by it in the manner set forth under subsection 4.03(b) above.
| SECTION 4.04. |
Allocation
of Realized Losses.
|
(a) Prior
to
each Distribution Date, 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; (ii) whether and the extent to which such Realized Losses
constituted Bankruptcy Losses; and (iii) the respective portions of such
Realized Losses allocable to interest and allocable to principal. Prior to
each
Distribution Date, the Servicer shall also determine as to each Mortgage Loan:
(A) the total amount of Realized Losses, if any, incurred in connection with
any
Deficient Valuations made during the related Prepayment Period; and (B) 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 two preceding sentences that is to
be
supplied by the Servicer shall be either included in the related Remittance
Report or evidenced by an Officers’ Certificate delivered to the Trust
Administrator by the Servicer not later than the 18th of the calendar month
in
which such Distribution Date occurs (or, if such 18th day is not a Business
Day
(other than a Saturday), then on the next succeeding Business Day, or, if such
18th day is a Saturday, then on the preceding Business Day), immediately
following the end of (x) in the case of Bankruptcy Losses allocable to interest,
the Due Period during which any such Realized Loss was incurred, and (y) in
the
case of all other Realized Losses, 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 Net Swap Payments received under the Interest Rate Swap
Agreement, third, to payments received under the Cap Contract, fourth, to the
Class CE Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; fifth, to the Class M-11 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; sixth, to the Class M-10
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; seventh, to the Class M-9 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; eighth, to the Class M-8 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero; ninth,
to the Class M-7 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; tenth, to the Class M-6 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eleventh, to
the
Class M-5 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; twelfth, to the Class M-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; thirteenth, to the Class
M-3
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; fourteenth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and fifteenth, 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) With
respect to the REMIC I Regular Interests, 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 has been
reduced to zero and then to REMIC I Regular Interest I-1-A through I-60-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 Realized
Losses shall be allocated pro rata between such REMIC I Regular
Interests.
(d) With
respect to the REMIC II Regular Interests, 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-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; fourth, 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; fifth, 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; sixth, 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; seventh, 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; eighth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTM6 and REMIC II Regular Interest
II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of
REMIC
II Regular Interest II-LTM6 has been reduced to zero; ninth, 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; tenth, 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; eleventh,
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; twelfth, 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 thirteenth, 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 thereto. Any disclosure in addition to the Monthly
Statement that is required to be included on Form 10-D (“Additional Form 10-D
Disclosure”) shall be reported by the parties set forth on Exhibit P to the
Depositor and the Trust Administrator and directed and approved by the Depositor
pursuant to the following paragraph, and the Trust Administrator will have
no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit P hereto, within 5 calendar days after the related Distribution
Date, (i) the parties described on Exhibit P shall be required to provide to
the
Trust Administrator and to the Depositor, to the extent known by a Responsible
Officer thereof, in ▇▇▇▇▇-compatible format, or in such other format as
otherwise agreed upon by the Trust Administrator and such party, the form and
substance of any Additional Form 10-D Disclosure, if applicable, together with
an Additional Disclosure Notification in the form of Exhibit Q hereto and (ii)
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
Trust Administrator has no duty under this Agreement to monitor or enforce
the
performance by the other parties listed on Exhibit P of their duties under
this
paragraph or proactively solicit or procure from such other parties any
Additional Form 10-D Disclosure information. 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 paragraph.
Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Trust Administrator that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trust
Administrator in writing, no later than the fifth calendar day after the related
Distribution Date with respect to the filing of a report on Form 10-D, if the
answer to either question should be “no.” The Trust Administrator shall be
entitled to rely on such representations in preparing, executing and/or filing
any such report.
After
preparing the Form 10-D, the Trust Administrator shall forward electronically
a
copy of the Form 10-D to the Depositor (provided that such Form 10-D includes
any Additional Form 10-D Disclosure). Within two Business Days after receipt
of
such copy, but no later than the 12th
calendar
day after the Distribution Date, the Depositor shall notify the Trust
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, the Trust Administrator shall be entitled to assume that
such Form 10-D is in final form and the Trust Administrator may proceed with
the
process for execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. 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 one 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 filed by the Trust Administrator. Each
party to this Agreement acknowledges that the performance by each of the Master
Servicer and the Trust Administrator of its duties under this Section
4.06(a)(ii) related to the timely preparation, execution and filing of Form
10-D
is contingent upon such parties strictly observing all applicable deadlines
in
the performance of their duties under this Section 4.06(a)(ii). The Depositor
acknowledges that the performance by each of the Master Servicer and the Trust
Administrator of its respective duties under this Section 4.06(a)(ii) related
to
the preparation and execution of Form 10-D is also contingent upon the Servicer,
the Custodian and any Servicing Function Participant strictly observing
deadlines no later than those set forth in this paragraph that are applicable
to
the parties to this Agreement in the delivery to the Trust Administrator of
any
necessary Additional Form 10-D Disclosure. Neither the Master Servicer nor
the
Trust Administrator shall have any liability for any loss, expense, damage
or
claim arising out of or with respect to any failure to properly prepare or
execute and/or timely file such Form 10-D, where such failure results from
the
Trust Administrator’s inability or failure to obtain or receive, on a timely
basis, any information from any other party hereto or any Servicing Function
Participant needed to prepare, arrange for execution or file such Form 10-D,
not
resulting from its own negligence, bad faith or willful misconduct.
Notwithstanding anything contained herein, the Trust Administrator shall
promptly notify the Depositor if a Form 10-D cannot be timely filed prior to
the
related filing deadline.
(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, 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 (other than the initial Form 8-K) (“Form 8-K
Disclosure Information”) shall be reported by the parties set forth on Exhibit P
and, pursuant to the following paragraph, 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
or
Form 8-K, except as set forth in the next paragraph.
As
set
forth on Exhibit P hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than close of business (New York City
time)
on the 2nd Business Day after the occurrence of a Reportable Event (i) the
parties set forth on Exhibit P shall be required pursuant to Section 4.06(a)(v)
below to provide to the Trust Administrator and the Depositor, to the extent
known by a Responsible Officer thereof, 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, together with an Additional Disclosure Notification and (ii)
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
copy of the Form 8-K to the Depositor. Promptly, but no later than the close
of
business on the third Business Day after the Reportable Event, the Depositor
shall notify the Trust Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 8-K. In the absence
of receipt of any written changes or approval, the Trust Administrator shall
be
entitled to assume that such Form 8-K is in final form and the Trust
Administrator may proceed with the process for execution and filing of the
Form
8-K. A duly authorized representative of the Master Servicer shall sign each
Form 8-K. 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 one 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 filed by the Trust
Administrator. The parties to this Agreement acknowledge that the performance
by
each of the Master Servicer and the Trust Administrator of its duties under
this
Section 4.06(a)(iii) related to the timely preparation, execution 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 Depositor acknowledges that the performance by each of the Master Servicer
and the Trust Administrator of its duties under this Section 4.06(a)(iii)
related to the preparation, execution and filing of Form 8-K is also contingent
upon the Servicer, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Trust
Administrator of any necessary Form 8-K Disclosure Information. Neither the
Master Servicer nor the Trust Administrator shall have any liability for any
loss, expense, damage or claim arising out of or with respect to any failure
to
properly prepare, execute or timely file such Form 8-K, where such failure
results from the Trust Administrator’s inability or failure to obtain or
receive, on a timely basis, any information from the Servicer, the Custodian
or
any Servicing Function Participant (other than any Servicing Function
Participant engaged by the Master Servicer or Trust Administrator) needed to
prepare, arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct. Notwithstanding anything contained
herein, the Trust Administrator shall promptly notify the Depositor if a Form
8-K cannot be timely filed prior to the related filing deadline.
(iv)
On
or
prior to the 90th day 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:
(a) an
annual
compliance statement for the Servicer, the Master Servicer, the Trust
Administrator and any Servicing Function Participant engaged by such parties
(each, a “Reporting
Servicer”)
as
described under Section 3.20 of this Agreement, provided,
however,
that
the Trust Administrator, at its discretion, may omit from the Form 10-K any
annual compliance statement that is not required to be filed with such Form
10-K
pursuant to Regulation AB;
(b) (A)
the
annual reports on assessment of compliance with Servicing Criteria for each
Reporting Servicer, as described under Section 3.21 of this Agreement and (B)
if
each Reporting Servicer’s report on assessment of compliance with Servicing
Criteria identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if each Reporting Servicer’s
report on assessment of compliance with Servicing Criteria 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, provided,
however,
that
the Trust Administrator, at its discretion, may omit from the Form 10-K any
assessment of compliance or attestation report described in clause (c) below
that is not required to be filed with such Form 10-K pursuant to Regulation
AB;
(c) (A)
the
registered public accounting firm attestation report for each Reporting
Servicer, as described under Section 3.21 of this Agreement and (B) if any
registered public accounting firm attestation report 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
(d) a
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described in this Section 4.06(a)(iv).
Any
disclosure or information in addition to (a) through (d) above that is required
to be included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported by the parties set forth on Exhibit P to the Depositor and the
Trust
Administrator and directed and approved by the Depositor pursuant to the
following paragraph, and the Trust Administrator will have no duty or liability
for any failure hereunder to determine or prepare any Additional Form 10-K
Disclosure, except as set forth in the next paragraph.
As
set
forth on Exhibit P hereto, no later than March 15th
(with no
cure period) of each year that the Trust is subject to the Exchange Act
reporting requirements, commencing in 2007, (i) the parties described on Exhibit
P shall be required to provide to the Trust Administrator and to the Depositor,
to the extent known by a Responsible Officer thereof, in ▇▇▇▇▇-compatible
format, or in such other format as otherwise agreed upon by the Trust
Administrator and such party, the form and substance of any Additional Form
10-K
Disclosure, if applicable, together with an Additional Disclosure Notification,
and (ii) 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 Trust Administrator has no duty under this Agreement to monitor or
enforce the performance by the other parties listed on Exhibit P of their duties
under this paragraph or proactively solicit or procure from such other parties
any Additional Form 10-K Disclosure information. 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 paragraph.
Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Trust Administrator that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trust
Administrator in writing, no later than March 15th with respect to the filing
of
a report on Form 10-K, if the answer to either question should be “no.” The
Trust Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
After
preparing the Form 10-K, the Trust Administrator shall forward electronically
a
copy of the Form 10-K to the Depositor. Within three Business Days after receipt
of such copy, but no later than March 25th, the Depositor shall notify the
Trust
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-K. In the absence of receipt of any written
changes or approval, the Trust Administrator shall be entitled to assume that
such Form 10-K is in final form, and the Trust Administrator may proceed with
the process for execution and filing of the Form 10-K. A senior officer of
the
Master Servicer in charge of the master servicing function shall sign the Form
10-K. 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 one 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 filed by the Trust
Administrator. The parties to this Agreement acknowledge that the performance
by
each of the Master Servicer and the Trust Administrator of its duties under
this
Section 4.04(a)(iv) related to the timely preparation, execution and filing
of
Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 4.04(a)(iv),
Section 3.20 and Section 3.21. The Depositor acknowledges that the performance
by each of the Master Servicer and the Trust Administrator of its duties under
this Section 4.04(a)(iv) related to the timely preparation and execution of
Form
10-K is also contingent upon the Servicer, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph that are applicable to the parties to this Agreement in the
delivery to the Trust Administrator of any necessary Additional Form 10-K
Disclosure, any annual statement of compliance and any assessment of compliance
and attestation pursuant to the related Servicing Agreement, the custodial
agreement or any other applicable agreement. Neither the Master Servicer nor
the
Trust Administrator shall have any liability for any loss, expense, damage
or
claim arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-K, where such failure results from the Trust
Administrator’s inability or failure to obtain or receive, on a timely basis,
any information from the Servicer, the Custodian or any Servicing Function
Participant needed to prepare, arrange for execution or file such Form 10-K,
not
resulting from its own negligence, bad faith or willful misconduct.
Notwithstanding anything contained herein, the Trust Administrator shall
promptly notify the Depositor if a Form 10-K cannot be timely filed prior to
the
related filing deadline.
Each
Form
10-K shall include a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, exactly as set forth in
Exhibit J-1 attached hereto, required to be included therewith pursuant to
the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Servicer and the Trust Administrator shall provide,
and
each such party shall cause any Servicing Function Participant engaged by it
to
provide, to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the
“Certifying
Person”),
by
March 15th (with no cure period) of each year in which the Trust is subject
to
the reporting requirements of the Exchange Act and otherwise within a reasonable
period of time upon request, a certification (each, 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. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of
the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at ▇▇▇-▇▇▇-▇▇▇▇. In the
event any such party or any Servicing Function Participant engaged by such
party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable sub-servicing 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 applicable sub-servicing agreement, as the case may be. Notwithstanding
the
foregoing, (i) the Master Servicer and the Trust Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in
the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing Agreement or custodial
agreement.
(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 its receipt of such information from the entity that is indicated
in
Exhibit P as the responsible party for providing such 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 and the Depositor 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 pursuant to 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 electronically notify the Depositor. In the case of Form 10-D
and
Form 10-K, the parties to this Agreement 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 Form 10-D. In the event that any previously filed Form 8-K, Form 10-D
or Form 10-K needs to be amended in connection with any Additional Form 10-D
Disclosure (other than, in the case of Form 10-D, for the purpose of restating
any Monthly Statement), Additional Form 10-K Disclosure or Form 8-K Disclosure
Information, the Trust Administrator will electronically notify the Depositor
and such other parties to the transaction as are affected by such amendment,
and
such parties will cooperate to prepare any necessary Form 8-K/A, Form 10-D/A
or
Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D
or
Form 10-K shall be signed by a duly authorized representative, or senior officer
in charge of master servicing, as applicable, of the Master Servicer. The
parties to this Agreement acknowledge that the performance by each of the Master
Servicer and the Trust Administrator of its duties under this Section
4.06(a)(vi) related to the timely preparation, execution 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 each such party performing its duties under this Section. Neither the
Master Servicer nor the Trust Administrator shall have any liability for any
loss, expense, damage or claim arising out of or with respect to any failure
to
properly prepare, execute 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 obtain or receive, on a
timely basis, any information from the Servicer, the Custodian or any Servicing
Function Participant 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) 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 (i) 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 (ii) 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.
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.
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 (i) 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 (ii) 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.
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 (i) a breach of the obligations of
the
Servicer under this Section 4.06 and (ii) 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.
Notwithstanding
the provisions set forth in this Agreement, the Servicer shall not be obligated
to provide any indemnification or reimbursement hereunder to any other party
for
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 which are indirect, consequential, punitive or special in
nature.
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-HE3, Mortgage Pass-Through Certificates, Series
2006-HE3—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)(v), 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: (i) the Interest Rate
Swap Agreement and (ii) the Swap Administration 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-HE3, Mortgage
Pass-Through Certificates, Series 2006-HE3—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 the Swap
Administration Agreement, dated as of the Closing Date (the “Swap Administration
Agreement”), among ▇▇▇▇▇ Fargo Bank, N.A. in its capacity as Supplemental
Interest Trust Trustee, ▇▇▇▇▇ Fargo Bank, N.A. in its capacity as Swap
Administrator, ▇▇▇▇▇ Fargo Bank, N.A. in its capacity as Trust Administrator
and
the Seller.
(c) The
Supplemental Interest Trust will be an “outside reserve fund” within the meaning
of Treasury Regulation Section 1.860G-2(h). 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, Class R and Class R-X 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, Class R and Class R-X 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, Class R and Class R-X
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, Class R and Class R-X
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, Class R and Class R-X 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) In
connection with paragraph 7(i) of the credit support annex, upon the Swap
Provider’s failure to post collateral with the Supplemental Interest Trust
Trustee, the Supplemental Interest Trust Trustee (to the extent it has actual
knowledge) shall provide, no later than the next Business Day after the date
such collateral was required to be posted, to the Interest Rate Swap Provider
a
written notice of such failure.
| 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
Mezzanine 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 Payments 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-HE3, Mortgage Pass-Through
Certificates, Series 2006-HE3—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) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Cap 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 Cap 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 Cap
Account be treated as a grantor trust. The
Cap
Account will be an “outside reserve fund” within the meaning of Treasury
Regulation Section 1.860G-2(h). 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).
(d) 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.
(e) For
federal income tax purposes, the Depositor shall provide the Trust
Administrator, no later than September 1, 2006, the value of the right of the
Class A and Mezzanine Certificates to receive Net WAC Rate Carryover Amounts
from the Net WAC Rate Carryover Reserve Account and the Swap
Account.
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 Default, 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,
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $25,000 immediately prior to the issuance
of
a Definitive Certificate shall be issued in a minimum denomination equal to
the
amount represented by such Book-Entry Certificate. 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 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 such Certificate by the Depositor to an Affiliate of the
Depositor or,
in
the case of the Class R-X Certificates, the first transfer by an Affiliate
of
the Depositor or the first transfer by the initial transferee of an Affiliate
of
the Depositor,
(ii)
the transfer of any such Class CE, Class P or Residual Certificate to the issuer
under the Indenture or the indenture trustee under the Indenture or (iii) a
transfer of any such Certificate from the issuer under the Indenture or the
indenture trustee under the Indenture to the Depositor or an Affiliate of the
Depositor), the Trustee and the Certificate Registrar shall each 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 Depositor, the Trustee, the Trust Administrator, the Master Servicer in
its
capacity as such, the Servicer, any Sub-Servicer or the Trust Fund), 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, the Certificate
Registrar or the Trustee is obligated to register or qualify the 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.
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.
In
addition, no transfer of any Class CE Certificate shall be made unless the
transferee of such Class CE Certificate provides to the Trust Administrator
the
appropriate tax certification form (i.e., IRS Form W-9 or IRS Form W-8BEN,
W-8IMY, or W-8ECI, as applicable (or
any
successor thereto))
as a
condition to such transfer and agrees to update
such forms (i) upon expiration of any such form, (ii) as required under then
applicable U.S. Treasury Regulations and (iii) promptly upon learning that
any
IRS Form W-9
or
IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable
(or any
successor thereto), has become obsolete or incorrect. Upon
receipt of any such tax certification form from a transferee of any Class CE
Certificate, the Trust Administrator shall provide a copy of such tax
certification form to the Supplemental Interest Trust Trustee. The Supplemental
Interest Trust Trustee shall provide a copy of any such tax certification form
to the Swap Provider.
(c) No
transfer of a Private 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, (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.
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 or in the case of a Class M-10
Certificate or Class M-11 Certificate, PTE 95-60.
Subsequent
to the termination of the Supplemental Interest Trust, each beneficial owner
of
such 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) other than in the case of a Class
M-10 Certificate or Class M-11 Certificate,
it has
acquired and is holding such Mezzanine Certificate in reliance on the Exemption,
and that it understands that there are certain conditions to the availability
of
the 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 Fitch 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.
(ii)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.
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.”
(iii) 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.
(A) 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 four 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 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
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) all certifications
delivered by a Responsible Officer of the Trust Administrator since the Closing
Date, (D) 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
(E) 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, THE SERVICER 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, the Servicer 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; and provided further that the Rating Agencies’
ratings of the Class A Certificates and the Mezzanine Certificates in effect
immediately prior to such merger or consolidation will not be qualified, reduced
or withdrawn as a result thereof (as evidenced by a letter to such effect from
the Rating Agencies).
| SECTION 6.03. |
Limitation
on Liability of the Depositor, the Servicer, the Master Servicer
and
Others.
|
(a) The
Servicer (but not 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 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, as applicable) 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 each of the
Trustee, the Servicer, the NIMS Insurer and their respective 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, or 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 or any other party
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 (if the Master Servicer is the
Servicer) the Trustee 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, privileges or obligations 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; provided, however, that that parties hereto consent to
the
assignment or transfer of the Servicer’s rights, benefits, privileges or
obligations hereunder to Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing. 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.
(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, the Trust Administrator 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, reasonable 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, the 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.
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. |
[Reserved].
|
| SECTION 6.08. |
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, the NIMS Insurer 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 6.09. |
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, the Master 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 or the Master Servicer under the related 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 or the Master Servicer pursuant to the related Credit Risk Management
Agreement in the performance of its duties thereunder and
hereunder.
| SECTION 6.10. |
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 (in each case, taking into
account any applicable cure periods);
(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 (vi) 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 (vii) 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 or (if the Master Servicer is the Servicer) the Trustee
pursuant to and under this Section, and, without limitation, the Master Servicer
or the Trustee, as applicable, 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 or the
Trustee, as applicable, 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 or the Trustee, as applicable, 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 or the Trustee, as applicable, 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 Default,” 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 Default 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 Default 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 Default 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 or Trustee to Act; Appointment of Successor
Servicer.
|
(a) From
the
time the Servicer receives a notice of termination, the Master
Servicer
or (if
the Master Servicer is the Servicer) the Trustee (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 or the Trustee, as applicable, (except for any
representations or warranties of the Servicer under this Agreement, the
responsibilities, duties and liabilities contained in Section 2.05 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 or
the
Trustee, as applicable, shall immediately assume the Servicer’s obligations to
make Advances pursuant to Section 4.03; provided, further, however, that if
the
Master Servicer or the Trustee, as applicable, is prohibited by law or
regulation from obligating itself to make advances regarding delinquent mortgage
loans, then the Master Servicer or the Trustee, as applicable, 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 or the Trustee, as applicable,
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 or the Trustee, as applicable, 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 or the Trustee, as applicable, 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
or the Trustee, as applicable, is prohibited by law from so acting, the Master
Servicer or the Trustee, as applicable, 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 or the Trustee, as applicable, 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 or the Trustee, as applicable, 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 or the Trustee, as applicable (in
which case the successor servicer or the Master Servicer or the Trustee, 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 or the Trustee,
as applicable, 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 the Master Servicer or the Trustee, as applicable, shall act in such
capacity as hereinabove provided.
Any
successor to the Servicer, including the Master Servicer or the Trustee, as
applicable, 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 the Servicer resignation pursuant to
Section 6.04, the terminated Servicer or its designee may, with the consent
of
the NIMS Insurer, 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 or the Trustee, as applicable, under Section 7.01
as
of the date of such appointment. Any proceeds received in connection with the
appointment of such successor servicer (after deduction of any expenses incurred
in connection with the servicing transfer) 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)(vii), 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 Trust Administrator. If the
Servicer fails to adhere to the requirements set forth in the immediately
preceding sentence, the Master Servicer or the Trustee, as applicable, 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 to the 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 or the Trustee, as
applicable, if the Master Servicer or the Trustee, as applicable, 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 or the Trustee, as applicable, 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, acceptable to the NIMS Insurer and with respect
to a successor to the Master Servicer only, having a net worth of not less
than
$50,000,000, 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 Default 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 Default)
becomes aware of the occurrence of such an event, the Trust Administrator or
Trustee, as applicable, shall transmit by mail to the Credit Risk Manager,
the
NIMS Insurer and to all Holders of Certificates notice of each such occurrence,
unless such Servicer Event of Default or Master Servicer Event of Default 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 Default hereunder may
waive such default, Servicer Event of Default or Master Servicer Event of
Default; provided, however, that a Servicer Event of Default under clause (i)
or
(vii) of Section 7.01(a) or Master Servicer Event of Default 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 Default, such
default, Servicer Event of Default or Master Servicer Event of Default 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 Default 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 Default 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 Default 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:
(i) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event of
Default, 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;
(ii) 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;
(iii) 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
(iv) 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
Default 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:
(i) 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;
(ii) 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;
(iii) 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
Default 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;
(iv) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event of
Default 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;
(v) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event of
Default 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
(vi) 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 be entitled to compensation
as
separately agreed with the Master Servicer. 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. 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, a 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. (“Fitch”), if Fitch is a Rating Agency, or
the equivalent rating by S&P or ▇▇▇▇▇’▇, or such other rating as is
acceptable to Fitch 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 or 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. The appointment of the Custodian
may at any time be terminated 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. ▇▇▇▇▇
Fargo Bank, N.A. 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 this
Agreement and to enforce the terms and provisions hereof 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) and Section 2.02, in no event
shall the appointment of the Custodian pursuant to this Agreement diminish
the
obligations of the Trustee hereunder.
| SECTION 8.12. |
Representations
and Warranties.
|
Each
of
the Trustee, the Custodian and the Trust Administrator hereby represents and
warrants to the Servicer, the Master Servicer and the Depositor, as of the
Closing Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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) on a servicing
retained basis 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 and any unpaid Servicing 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 (i) 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 and (ii)
the fair market value of the Mortgage Loans and REO Properties determined as
described above is at least equal to the Stated Principal Balance of the
Mortgage Loans (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 the appraised value of the REO Properties.
(b) The
majority holder of the Class CE Certificates (so long as such Holder is not
the
Seller or an affiliate of the Seller), or if such majority holder fails to
exercise such right, the Master Servicer, or if the Master Servicer fails to
exercise such right, the Servicer, or if the Servicer fails to exercise such
right, the NIMS Insurer, shall have the right (the party exercising such right,
the “Terminator”), 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.
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, Class R or Class R-X
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.
In
connection with any termination pursuant to this Section 9.01(b):
(i) At
least
twenty (20) days prior to the latest date on which notice of such optional
termination is required to be mailed to the Certificateholders pursuant to
Section 9.01(c), the Terminator shall notify in writing (which may be done
in
electronic format) the Swap Provider of the final Distribution Date on which
the
Terminator intends to terminate the Trust Fund;
(ii) No
later
than 4:00 pm (New York City time) four (4) Business Days prior to the final
Distribution Date specified in the notices required pursuant to Sections
9.01(c), the Trust Administrator shall request from the Swap Provider the amount
of the Estimated Swap Termination Payment. The Swap Provider shall, no later
than 2:00 pm (New York City time) on the following Business Day, notify in
writing (which may be done in electronic format) the Trust Administrator of
the
amount of the Estimated Swap Termination Payment and the Trust Administrator
shall promptly on the same day notify the Terminator of the amount of the
Estimated Swap Termination Payment; and
(iii) Two
(2)
Business Days prior to the final Distribution Date specified in the notices
required pursuant to Sections 9.01(c), (x) the Terminator shall, no later than
1:00 pm (New York City time) on such day, deliver to the Trust Administrator
and
the Trust Administrator shall deposit funds in the Distribution Account in
an
amount equal to the sum of the Termination Price (which shall be based on the
Estimated Swap Termination Payment), and (y) if the Trust Administrator shall
have determined that the all of the requirements for Optional Termination have
been met, including without limitation the deposit required pursuant to the
immediately preceding clause (x) as well as the requirements specified in
Section 9.01(c), then the Trust Administrator shall, on the same Business Day,
provide written notice to the Terminator and the Swap Provider confirming (a)
its receipt of the Termination Price (which shall be based on the Estimated
Swap
Termination Payment), and (b) that all other requirements of the Optional
Termination have been met (the “Optional Termination Notice”). Upon the delivery
of the Optional Termination Notice by the Trust Administrator pursuant to the
preceding sentence, (i) the optional termination shall become irrevocable,
(ii)
the notice to Certificateholders of such optional termination provided pursuant
to Section 9.01(c) shall become unrescindable, (iii) the Swap Provider shall
determine the Swap Termination Payment in accordance with the Interest Rate
Swap
Agreement (which shall not exceed the Estimated Swap Termination Payment),
and
(iv) the Swap Provider shall provide to the Trust Administrator written notice
of the amount of the Swap Termination Payment not later than one (1) Business
Day prior to the final Distribution Date specified in the notices required
pursuant to Sections 9.01(c).
(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:
(i) 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;
(ii) 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
(iii) 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 Class 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 Class 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 and 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, the NIMS Insurer 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 any 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, any 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,
the Servicer 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 4.01(e), 4.08, Section 9.01, Section 11.09
or Section 11.10 of this Agreement or any other amendment which would adversely
affect in any material respect the Swap Provider’s rights under 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 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, HomEq Servicing Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Portfolio Management,
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇ with a copy to HomEq Servicing Corporation, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Legal Department, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, 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, Custodian or the Trust Administrator, ▇▇▇▇▇
Fargo Bank, N.A., ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Client
Manager-MASTR 2006-HE3 (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇
Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Client Manager-MASTR 2006-HE3 (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy
to
▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Client Manager-MASTR 2006-HE3, 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-HE3 (telecopy number (▇▇▇)
▇▇▇-▇▇▇▇), or such other address or telecopy number 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, (d) in the case
of
the Credit Risk Manager, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: General Counsel, or such other address or telecopy number
as
may hereafter be furnished to the Depositor, the Servicer, the Trustee and
the
NIMS Insurer and (e) 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 Default
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 make
available to each Rating Agency copies of the following:
(1) Each
annual statement as to compliance described in Section 3.20;
(2) Each
annual independent public accountants’ servicing report described in
Section 3.21;
(3) Any
notice delivered pursuant to Section 7.01
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 reasonably 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 Servicer, the Master Servicer, the Trust
Administrator, the Custodian 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:
Director
|
|
|
▇▇▇▇▇
FARGO BANK, N.A.,
|
|
|
as
Master Servicer, Trust Administrator and Custodian
|
|
|
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Title:
Assistant Vice President
|
|
|
HOMEQ
SERVICING CORPORATION,
|
|
|
as
Servicer
|
|
|
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Title:
President
|
|
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
as
Trustee
|
|
|
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Title:
Assistant Vice President
|
|
For
purposes of Sections 6.08, 6.09 and 6.10:
|
|
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC.
|
|
By:/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Title:
President and General Counsel
|
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
the
___ day of August 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 August 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 MARYLAND
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF ▇▇▇▇▇▇
|
)
|
On
the
____ day of August 2006, before me, a notary public in and for said State,
personally appeared ________________________ known to me to be a(n)
________________________ of HomEq Servicing Corporation, 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 August 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-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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class A-1 Certificates as of the Issue
Date:
$ 234,900,000.00
Denomination:
$234,900,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AA 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
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 a REMIC 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, the Custodian 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 Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee and
any
agent of the Depositor, the Master Servicer, the Trust Administrator and
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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-A-2
FORM
OF
CLASS A-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO 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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class A-2 Certificates as of the Issue
Date:
$67,700,000.00
Denomination:
$67,700,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AB 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 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-2 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
A-2 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class A-3 Certificates as of the Issue
Date:
$92,750,000.00
Denomination:
$92,750,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AC 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-3 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
A-3 Certificates in a REMIC 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, the Custodian 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-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 Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-A-4
FORM
OF
CLASS A-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO 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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class A-4 Certificates as of the Issue
Date:
$51,281,000.00
Denomination:
$51,281,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AD 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 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-4 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
A-4 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the
Custodian, the NIMS Insurer, if any, and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer, the
Servicer, the Trust Administrator, the Trustee and the NIMS Insurer, if any,
without the consent on the Certificateholders or with the consent of the
Holders
of Certificates entitled to at least 66% of the Voting Rights as further
set
forth in the Agreement. Any such consent by the Holder of this Certificate
shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-1
FORM
OF
CLASS M-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO 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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-1 Certificates as of the Issue
Date:
$19,419,000.00
Denomination:
$19,419,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AE 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 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 M-1 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-1 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-2
FORM
OF
CLASS M-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO 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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-2 Certificates as of the Issue
Date:
$17,750,000.00
Denomination:
$17,750,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AF 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 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 M-2 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-2 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-3
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
AS
AMENDED (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.
|
Series:
2006-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-3 Certificates as of the Issue
Date:
$10,268,000.00
Denomination:
$10,268,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AG 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 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 M-3 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-3 Certificates in a REMIC 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, the Custodian 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 Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-4
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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-4 Certificates as of the Issue
Date:
$8,877,000.00
Denomination:
$8,877,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AH 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 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 M-4 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-4 Certificates in a REMIC 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, the Custodian 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 Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee and
any
agent of the Depositor, the Master Servicer, the Custodian, 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-5
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
AS
AMENDED (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 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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-5 Certificates as of the Issue
Date:
$8,877,000.00
Denomination:
$8,877,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AJ 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 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 M-5 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-5 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-6
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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-6 Certificates as of the Issue
Date:
$8,322,000.00
Denomination:
$8,322,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AK 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 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 M-6 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-6 Certificates in a REMIC 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, the Custodian 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 Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-7
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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-7 Certificates as of the Issue
Date:
$7,767,000.00
Denomination:
$7,767,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AL 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 M-7 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-7 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-8
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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-8 Certificates as of the Issue
Date:
$6,657,000.00
Denomination:
$6,657,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AM 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
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 M-8 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-8 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-9
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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-9 Certificates as of the Issue
Date:
$4,715,000.00
Denomination:
$4,715,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AN 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 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 M-9 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-9 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee and
any
agent of the Depositor, the Master Servicer, the Custodian, 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 Custodian, 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 of 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:
August ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-10
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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-10 Certificates as of the Issue
Date:
$3,883,000.00
Denomination:
$3,883,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AP 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 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 M-10 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-10 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-M-11
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 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
AS
AMENDED (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 CERTIFICATES
AND THE CLASS M-10 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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class M-11 Certificates as of the Issue
Date:
$ 4,715,000.00
Denomination:
$4,715,000.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 2006
CUSIP:
57645J AQ 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 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 M-11 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
M-11 Certificates in a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing 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 Trust Administrator, the Trustee 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 of 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-CE
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
AS
AMENDED (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-HE3
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class CE Certificates as of the Issue
Date:
$6,940,107.38
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 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 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 UBS Securities LLC 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 a REMIC 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 or the Master Servicer, the Trust
Administrator, the Custodian 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 or the Trust
Administrator 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 Trust Administrator, the Custodian, the Depositor, the Servicer
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 Trust Administrator, the Trustee 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 of 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 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-P
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
AS
AMENDED (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-HE3
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Certificate Principal Balance of
the
Class P Certificates as of the Issue
Date:
$100.00
Denomination:
$100.00
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 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 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 UBS Securities LLC 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 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, the Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 or the Master Servicer, the Trust
Administrator, the Custodian 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 or the Trust
Administrator 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 Trust Administrator, the Custodian, the Depositor, the Servicer
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 Trust Administrator, the Trustee 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 of 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 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-R
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 AS AMENDED (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 (C) 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-HE3
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Percentage Interest of the Class R
Certificates
as of the Issue Date: 100.00%
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 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 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 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, the
Custodian 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 Servicer the Trust Administrator, the Trustee, the NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 or the Master Servicer, the Trust
Administrator, the Custodian 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 nor the Trust
Administrator 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 Trust Administrator, the Custodian, the Depositor, the Servicer
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 Trust Administrator, the Trustee 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 of 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 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:
August ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for
the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-RX
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 AS AMENDED (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 (C) 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-HE3
Cut-off
Date and date of Pooling and
Servicing
Agreement: August 1, 2006
First
Distribution Date: September 25, 2006
No.
1
|
Aggregate
Percentage Interest of the Class R-
X
Certificates as of the Issue Date: 100.00%
Master
Servicer, Trust Administrator and
Custodian:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee:
U.S. Bank National Association
Issue
Date: August 30, 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 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 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, the
Custodian 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 Servicer, the Trust Administrator, the Trustee, the
NIMS
Insurer, if any, and the rights of the Certificateholders under the Agreement
at
any time by the Depositor, the Master Servicer, the Servicer, the Trust
Administrator, the Trustee and the NIMS Insurer, if any, without the consent
on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange 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 or the Master Servicer, the Trust
Administrator, the Custodian 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 nor the Trust
Administrator 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 Trust Administrator, the Custodian, the Depositor, the Servicer
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 Trust Administrator, the Trustee 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 of 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 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:
August __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its
individual
capacity, but solely as Trust
Administrator
for
the MASTR Asset
Backed
Securities Trust 2006-HE3,
Mortgage
Pass-Through Certificates
|
||
| |
|
|
| 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
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
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
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
B
[RESERVED]
EXHIBIT
C-1
FORM
OF
INITIAL CERTIFICATION
[Date]
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Structured Finance/MASTR 2006-HE3
|
|
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1,
2006,
among Mortgage Asset Securitization Transactions,
Inc.,
▇▇▇▇▇ Fargo Bank, N.A., HomEq Servicing
Corporation
and U.S. Bank National Association, Mortgage
Pass-Through
Certificates,
Series
2006-HE3
|
Ladies
and Gentlemen:
Attached
is the [Custodian’s] [Trustee’s] preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the “Pooling and Servicing Agreement”). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling
and
Servicing Agreement.
The
[Custodian] [Trustee] has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in
the
Pooling and Servicing Agreement. The [Custodian] [Trustee] makes no
representations as to (i) the validity, legality, sufficiency, enforceability
or
genuineness of any of the documents contained in the Mortgage File pertaining
to
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or (iii) whether any Mortgage File included any of the documents specified
in clause (vi) of Section 2.01 of the Pooling and Servicing
Agreement.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
[Custodian/
Trustee]
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
EXHIBIT
C-2
FORM
OF
FINAL CERTIFICATION
[Date]
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Structured Finance/MASTR 2006-HE3
|
|
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1,
2006,
among Mortgage Asset Securitization Transactions,
Inc.,
▇▇▇▇▇ Fargo Bank, N.A., HomEq Servicing
Corporation
and U.S. Bank National Association, Mortgage
Pass-Through
Certificates,
Series 2006-HE3
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as [Custodian’s] [Trustee’s], hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
loan
paid in full or listed on Schedule I hereto) it (or its custodian) has received
the applicable documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is
correct.
The
[Custodian’s] [Trustee’s] has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in
the
Pooling and Servicing Agreement. The [Custodian’s] [Trustee’s] makes no
representations as to (i) the validity, legality, sufficiency, enforceability
or
genuineness of any of the documents contained in the Mortgage File pertaining
to
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or (iii) whether any Mortgage File included any of the documents specified
in clause (vi) of Section 2.01 of the Pooling and Servicing
Agreement.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
[CUSTODIAN/
TRUSTEE]
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
EXHIBIT
C-3
FORM
OF
RECEIPT OF MORTGAGE NOTE
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Structured Finance/ MASTR 2006-HE3
|
|
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
HomEq
Servicing Corporation
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1,
2006,
among Mortgage Asset Securitization Transactions,
Inc.,
▇▇▇▇▇ Fargo Bank, N.A., HomEq Servicing
Corporation
and U.S. Bank National Association, Mortgage
Pass-Through
Certificates, Series
2006-HE3
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement, dated as of August
1,
2006, among Mortgage Asset Securitization Transactions, Inc. as Depositor,
▇▇▇▇▇
Fargo Bank, N.A. as Master Servicer, Trust Administrator and Custodian (the
“Master Servicer”, the “Trust Administrator” and the “Custodian”), HomEq
Servicing Corporation as Servicer (the “Servicer”) and U.S. Bank National
Association as Trustee, we hereby acknowledge the receipt of the original
Mortgage Notes (a copy of which is attached hereto as Exhibit 1) with any
exceptions thereto listed on Exhibit 2.
|
[TRUSTEE/
CUSTODIAN ]
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
EXHIBIT
D
FORM
OF
ASSIGNMENT AGREEMENTS
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated August 30, 2006, (“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
First Street Financial, Inc. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
I.
Assignment and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated as of August
1, 2004,
as
amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates
to the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
II.
Recognition of the Company
From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
MASTR Asset-Backed Securities Trust 2006-HE3 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of August 1, 2006 (the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust administrator
(including its successors in interest and any successor servicers under
the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), HomEq
Servicing Corporation as servicer (the “Servicer”) and U.S. Bank National
Association, as trustee (including its successors in interest and any successor
trustees under the Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer and
the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage Loans,
under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches of
representations and warranties set forth in the Purchase Agreement, and
shall be
entitled to enforce all of the obligations of the Company thereunder insofar
as
they relate to the Mortgage Loans, and (iii) all references to the
Purchaser (insofar as they relate to the rights, title and interest and,
with
respect to obligations of the Purchaser, only insofar as they relate to
the
enforcement of the representations, warranties and covenants of the Company)
or
the Custodian under the Purchase Agreement insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the Trust (including the Trustee,
the Trust Administrator, the Master Servicer and the Servicer acting on
the
Trust’s behalf). Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions
of the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
III.
Representations and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) Attached
hereto as Exhibit
B
is a
true and accurate copy of the representations and warranties set forth
in
Sections 3.01 and 3.02 of the Purchase Agreement, which Purchase Agreement
is in
full force and effect as of the date hereof and the provisions of which
have not
been waived, amended or modified in any respect, nor has any notice of
termination been given thereunder;
(b) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(c) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company
of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or
by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee,
will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(d) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(e) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in
any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is
solvent.
2. Pursuant
to Section 8.01(b)(iii) of the Purchase Agreement, the Company hereby represents
and warrants, for the benefit of the Assignor, the Assignee and the Trust,
that
the representations and warranties set forth in Sections 3.01 and 3.02
of the
Purchase Agreement (set forth on Schedule 1 hereto), are true and correct
as of
the date hereof, as if such representations and warranties were made on
such
date.
3. The
Assignor hereby makes the following representations and warranties as of
the
date hereof:
(a) 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;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such
terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E); and
(d) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act;
IV.
Remedies for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Section
3 hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement as if
they
were set forth herein (including without limitation the repurchase and
indemnity
obligations set forth therein). It is understood by the parties hereto
that a
breach of the representations and warranties made in Subsections 3.02 (ee),
(uu), (vv), (ccc) and (ggg) of the Purchase Agreement shall be deemed to
materially and adversely affect the value of the related mortgage loan
or the
interests of the Trust in the related mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee and the Master Servicer acting
on
the Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 3 hereof shall be
as set
forth in Section 2.03 of the Pooling and Servicing Agreement as if they
were set
forth herein (including without limitation the repurchase obligations set
forth
therein). The
Assignor hereby acknowledges and agrees that a breach of any one of the
representations set forth in Section 5 above will be deemed to materially
adversely affect the interests of the certificateholders and shall require
a
repurchase of the affected Mortgage Loan(s).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation
of the
Company with respect to any breach of representation and warranty made
by the
Company regarding the Mortgage Loans.
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee, the Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor, Assignee
or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
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.
In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
|
UBS
REAL ESTATE SECURITIES INC.
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
|
FIRST
STREET FINANCIAL, INC.
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
A
Mortgage
Loan Schedule
Available
Upon Request
SCHEDULE
1
Capitalized
terms used herein but not defined in this Schedule 1 shall have the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that as of
each
Closing Date and as of each Servicing Transfer Date or as of such date
specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing under the
laws of
the State of California. The Company has all licenses necessary to carry
out its
business as now being conducted, and is licensed and qualified to transact
business in and is in good standing under the laws of each state in which
any
Mortgaged Property is located or is otherwise exempt under applicable law
from
such licensing or qualification or is otherwise not required under applicable
law to effect such licensing or qualification and no demand for such licensing
or qualification has been made upon the Company by any such state, and
in any
event the Company is in compliance with the laws of any such state to the
extent
necessary to ensure the enforceability of each Mortgage Loan and the interim
servicing of the Mortgage Loans in accordance with the terms of this Agreement.
No licenses or approvals obtained by the Company have been suspended or
revoked
by any court, administrative agency, arbitrator or governmental body and
no
proceedings are pending which might result in such suspension or
revocation;
(b) The
Company has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and the related Confirmation and to conduct its business
as
presently conducted; the Company has duly authorized the execution, delivery
and
performance of this Agreement and any agreements contemplated hereby, has
duly
executed and delivered this Agreement and the related Confirmation, and
any
agreements contemplated hereby, and this Agreement and the related Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements contemplated
hereby, constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their respective terms, except
as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting
the
enforceability of the rights of creditors; and all requisite corporate
action
has been taken by the Company to make this Agreement, the related Confirmation
and all agreements contemplated hereby valid and binding upon the Company
in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms
and
conditions of this Agreement and the related Confirmation will conflict
with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the Company is now a party or by which it is bound, or constitute
a
default or result in an acceleration under any of the foregoing, or result
in
the material violation of any law, rule, regulation, order, judgment or
decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have a material
adverse effect on the sale of the Mortgage Loans, the execution, delivery,
performance or enforceability of this Agreement or the related Confirmation,
or
which is reasonably likely to have a material adverse effect on the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement and the related Confirmation,
except for consents, approvals, authorizations and orders which have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement and the
related
Confirmation are in the ordinary course of business of the Company, and
the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Company pursuant to this Agreement and the related Confirmation are
not
subject to bulk transfer or any similar statutory provisions in effect
in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect to each Mortgage
Note and Mortgage have been legal and in accordance with applicable laws
and
regulations, and in all material respects in accordance with Accepted Servicing
Practices. The Company further represents and warrants that: with respect
to
escrow deposits and payments that the Company is entitled to collect, all
such
payments are in the possession of, or under the control of, the Company
or its
delegate, 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 and are being maintained in full compliance
with
applicable state and federal law and the provisions of the related Mortgage
Note
and Mortgage; as to any Mortgage Loan that is the subject of an escrow,
escrow
of funds is not prohibited by applicable law and has been established in
an
amount sufficient to pay for every escrowed item that remains unpaid and
has
been assessed but is not yet due and payable; no escrow deposits or other
charges or payments due under the Mortgage Note have been capitalized under
any
Mortgage or the related Mortgage Note; all Mortgage Interest Rate adjustments
have been made in strict compliance with state and federal law and the
terms of
the related Mortgage Note; and any interest required to be paid pursuant
to
state and local law has been properly paid and credited;
(h) The
Company has not used selection procedures that identified the Mortgage
Loans as
being less desirable or valuable than other comparable mortgage loans in
the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the Purchaser
as a sale
for reporting and accounting purposes and, to the extent appropriate, for
federal income tax purposes. The Company shall maintain a complete set
of books
and records for each Mortgage Loan which shall be clearly marked to reflect
the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage loans for
HUD,
with such facilities, procedures and personnel necessary for the sound
servicing
of such mortgage loans. The Company is duly qualified, licensed, registered
and
otherwise authorized under all applicable federal, state and local laws
and
regulations and is in good standing to sell mortgage loans to and service
mortgage loans for HUD and no event has occurred which would make the Company
unable to comply with eligibility requirements or which would require
notification to HUD;
(k) The
Company does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every covenant contained in this Agreement and
the
related Confirmation applicable to it. The Company is solvent and the sale
of
the Mortgage Loans will not cause the Company to become insolvent. The
sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared by,
or on
behalf of, the Company pursuant to this Agreement, the related Confirmation
or
in connection with the transactions contemplated hereby, contains or will
contain any statement that is or will be inaccurate or misleading in any
material respect. The Company has prudently originated and underwritten
each
Mortgage Loan;
(m) The
consideration received by the Company upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such
Mortgage
Loans;
(n) The
Company has delivered to the Purchaser financial statements as to its last
two
complete fiscal years. 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
Company and its subsidiaries and have been prepared in accordance with
GAAP
consistently applied throughout the periods involved, except as set forth
in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Company since the date of the Company’s
financial statements that would have a material adverse effect on its ability
to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent or other
person
that may be entitled to any commission or compensation in connection with
the
sale of the Mortgage Loans; and
(p) To
the
extent that the Purchaser has at any time purchased a MERS Mortgage Loan
hereunder, the Company is a member of MERS in good standing, and will comply
in
all material respects with the rules and procedures of MERS in connection
with
the servicing of the MERS Mortgage Loans for as long as such Mortgage Loans
are
registered with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date and as of the related Servicing Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Purchaser, is complete,
true
and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security interest
with
respect to each Mortgage Loan which is indicated by the Company to be a
First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second lien and
second
priority security interest with respect to each Mortgage Loan which is
indicated
by the Company to be a Second Lien (as reflected on the Mortgage Loan Schedule),
in either case, in the related Mortgaged Property securing the related
Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such Mortgage
Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
in
payment more than 30 days and has not been dishonored; there are no material
defaults under the terms of the Mortgage Loan; the Company has not 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
Loan; no payment with respect to each Mortgage Loan has been delinquent
during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been
recorded
to the extent any such recordation is required by law. No instrument of
waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been approved
by the issuer has been approved by the issuer of any related title insurance
policy, to the extent required by the related policy.
(f) 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 the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any
state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ Guides, against
loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the ▇▇▇▇▇▇ Mae Guides or by the ▇▇▇▇▇▇▇ Mac Guides, in an amount representing
coverage not less than the lesser of (i) the maximum insurable value of
the
improvements securing such Mortgage Loans, and (ii) the greater of (a)
either
(1) the outstanding principal balance of the Mortgage Loan with respect
to each
Mortgage Loan which is indicated by the Company to be a First Lien (as
reflected
on the Mortgage Loan Schedule) or (2) with respect to each Second Lien
Mortgage
Loan, the sum of the outstanding principal balance of the first lien on
such
Mortgage Loan and the outstanding principal balance of such Second Lien
Mortgage
Loan, and (b) an amount such that the proceeds thereof shall be sufficient
to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer,
but in no
event greater than the maximum amount permitted under applicable law. All
such
standard hazard policies are in full force and effect and on the date of
origination contained a standard mortgagee clause naming the Company and
its
successors in interest and assigns as loss payee and such clause is still
in
effect and all premiums due thereon have been paid. If required by the
Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered
by a
flood insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇
Mac requirements, in an amount not less than the amount required by the
Flood
Disaster Protection Act of 1973, as amended. Such policy was issued by
an
insurer acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Each
Mortgage Loan and, if any, the related prepayment penalty complied in all
material respects with any and all requirements of any federal, state or
local
law including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
fair housing, disclosure, or predatory, fair and abusive lending laws applicable
to the origination and servicing of loans of a type similar to the Mortgage
Loans and the consummation of the transactions contemplated hereby will
not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other than the
subordination of any Second Lien Mortgage Loan to the related First Lien),
in
whole or in part, or rescinded, 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 release, cancellation, subordination
or
rescission. The Company 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 Company waived any default
resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected (A)
first
lien and first priority security interest with respect to each Mortgage
Loan
which is indicated by the Company to be a First Lien (as reflected on the
Mortgage Loan Schedule), or (B) second lien and second priority security
interest with respect to each Mortgage Loan which is indicated by the Company
to
be a Second Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule),
in
either case, on the Mortgaged Property including all buildings on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating
and
air conditioning systems affixed 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 Mortgage and the
Mortgage Note do not contain any evidence of any security interest or other
interest or right thereto. Such lien is free and clear of all adverse claims,
liens and encumbrances having priority over the first lien of the Mortgage
subject only to (1) the lien of non-delinquent current real property taxes
and
assessments not yet due and payable, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of the public record as of the
date
of recording which are acceptable to mortgage lending institutions generally
and
either (A) which are referred to or otherwise considered in the appraisal
made
for the originator of the Mortgage Loan, or (B) which do not adversely
affect
the appraised value of the Mortgaged Property as set forth in such appraisal,
(3) other matters to which like properties are commonly subject which do
not
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 (4) with respect to each Mortgage Loan which is
indicated
by the Company to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security agreement,
chattel mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid, subsisting, enforceable
and perfected (A) first lien and first priority security interest with
respect
to each Mortgage Loan which is indicated by the Company to be a First Lien
(as
reflected on the Mortgage Loan Schedule), or (B) second lien and second
priority
security interest with respect to each Mortgage Loan which is indicated
by the
Company to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan
Schedule), in either case, on the property described therein, and the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and the Company
has
taken all action necessary to transfer such rights of enforceability to
the
Purchaser. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of the Company or the Mortgagor, or, on the part of any other
party
involved in the origination of the Mortgage Loan. The proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage were paid or are in
the
process of being paid, and the Mortgagor is not entitled to any refund
of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation the Purchaser
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan
to the
Purchaser, the Company will retain the Servicing File in trust for the
Purchaser
only for the purpose of interim servicing and supervising the interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including the
Mortgage
Note and the Mortgage, were not subject to an assignment or pledge other
than
with respect to a lien of a warehouse lender which lien was released by
such
lender simultaneously with or prior to the payment of the Purchase Price
by the
Purchaser as evidenced by a security release certification delivered to
the
Purchaser pursuant to Section 2.09 of this Agreement. The Company had good
and
marketable title to and was the sole owner thereof and had full right to
transfer and sell the Mortgage Loan to the Purchaser free and clear of
any
encumbrance, equity, lien, pledge, charge, claim or security interest and
has
the full right and authority subject to no interest or participation of,
or
agreement with, any other party, to sell and assign the Mortgage Loan pursuant
to this Agreement and following the sale of the Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest.
The
Company intends to relinquish all rights to possess, control and monitor
the
Mortgage Loan, except for the purposes of servicing the Mortgage Loan as
set
forth in this Agreement. Either the Mortgagor is a natural person or the
Mortgagor is an inter-vivos trust acceptable to ▇▇▇▇▇▇ Mae. With respect
to each
inter-vivos trust, holding title to the Mortgaged Property in such trust
will
not diminish any rights as a creditor including the right to full title
to the
Mortgaged Property in the event foreclosure proceedings are
initiated;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy (or, with
respect to any Second Lien Mortgage Loan, by a short form title report)
issued
by a title insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and qualified
to do
business in the jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained in (j)(1), (2) and (3) above and,
with
respect to each Mortgage Loan which is indicated by the Company to be a
Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) clause
(4)) the
Company, 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 and, with respect to each Adjustable Rate Mortgage Loan,
against
any loss by reason of the invalidity or unenforceability of the lien resulting
from the provisions of the Mortgage providing for adjustment in the Mortgage
Interest Rate and Monthly Payment. Additionally, such policy affirmatively
insures ingress and egress to and from the Mortgaged Property. Where required
by
applicable state law or regulation, the Mortgagor has been given the opportunity
to choose the carrier of the required mortgage title insurance. The Company,
its
successors and assigns, are the sole insureds of such lender’s title insurance
policy, such title insurance policy has been duly and validly endorsed
to the
Purchaser or the assignment to the Purchaser of the Company’s interest therein
does not require the consent of or notification to the insurer and such
lender’s
title insurance policy is in full force and effect and will be in full
force and
effect upon the consummation of the transactions contemplated by this Agreement
and the related Confirmation. No claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage, including
the
Company, has done, by act or omission, anything which would impair the
coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related 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 Company nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration. With respect to each Mortgage
Loan
which is indicated by the Company to be a Second Lien Mortgage Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is in full
force and
effect, (ii) there is no default, breach, violation or event of acceleration
existing under such First Lien mortgage or the related mortgage note, (iii)
to
the best of Company’s knowledge, 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 either
(A)
the First Lien mortgage contains a provision which 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 First Lien mortgage;
(o) 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 law could give rise
to
such liens) affecting the related Mortgaged Property which are or may be
liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie 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 except those which are
insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage Loan subject
to
exceptions which are in writing in the Mortgage File and were approved
by the
Purchaser prior to the related Closing Date. The Mortgage Notes and Mortgages
(exclusive of any riders) are on forms generally acceptable to ▇▇▇▇▇▇ ▇▇▇
or
▇▇▇▇▇▇▇ Mac. The Mortgage Loan bears interest at the Mortgage Interest
Rate set
forth in the related Mortgage Loan Schedule, and Monthly Payments under
the
Mortgage Note are due and payable on the first day of each month. The Mortgage
contains the usual and enforceable provisions of the originator at the
time of
origination for the acceleration of the payment of the unpaid principal
amount
of the Mortgage Loan if the related Mortgaged Property is sold without
the prior
consent of the mortgagee thereunder;
(r) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty, and is in good repair.
At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. There have not been any condemnation proceedings with respect
to the
Mortgaged Property and there are no such proceedings scheduled to commence
at a
future date;
(s) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby.
There is no homestead or other exemption available to the Mortgagor which
would
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act 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 Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) 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 Second Lien Mortgage
Loans, is on appraisal form 704, 2065 or 2055, and (c) with respect to
(a) or
(b) above was signed prior to the final approval of the mortgage loan
application by a Qualified Appraiser, who had no interest, direct or indirect,
in the Mortgaged Property or in any loan made on the security thereof,
and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of
▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac and Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was originated.
The
appraisal is in a form acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(w) The
related Mortgage Note is not and has not been secured by any collateral
except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in (j) above
and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent and the
Company has no knowledge of any circumstances or condition with respect
to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors to regard
the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to
become
delinquent, or materially adversely affect the value or marketability of
the
Mortgage Loan;
(aa) Except
with respect to any IO Mortgage Loan, principal payments on the Mortgage
Loan
commenced no more than sixty (60) days after the funds were disbursed in
connection with the Mortgage Loan. The Mortgage Loans have an original
term to
maturity of not more than 30 years, with interest payable in arrears on
the
first day of each month. The Mortgage Loan bears interest at the Mortgage
Interest Rate. With respect to each Mortgage Loan, the Mortgage Note is
payable
on the first day of each month in Monthly Payments which, with respect
to a
Mortgage Loan other than an IO Mortgage Loan or Balloon Mortgage Loan,
requires
a monthly payment which in the case of a Fixed Rate Mortgage Loan, is sufficient
to fully amortize the original principal balance over the original term
thereof
and to pay interest at the related Mortgage Interest Rate, and in the case
of an
Adjustable Rate Mortgage Loan, is changed on each Adjustment Date and is
sufficient to fully amortize the original principal balance over the original
term thereof and to pay interest at the related Mortgage Interest Rate.
With
respect to each Balloon Mortgage Loan, the Mortgage Note requires a monthly
payment which is sufficient to fully amortize the original principal balance
over the original term thereof and to pay interest at the related Mortgage
Interest Rate and requires a final Monthly Payment substantially greater
than
the preceding monthly payment which is sufficient to repay the remained
unpaid
principal balance of the Balloon Mortgage Loan as the Due Date of such
monthly
payment. With respect to each IO Mortgage Loan, the interest-only period
shall
not exceed the interest-only period set forth on the related Mortgage Loan
Schedule and following the expiration of such interest-only period, the
remaining Monthly Payments shall be sufficient to fully amortize the original
principal balance over the remaining term of the Mortgage Loan. No Mortgage
Loan
contains terms or provisions which would result in negative amortization.
No
Mortgage Loan provides for the capitalization or forbearance of
interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, 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 de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon,
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination no
portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a prepayment penalty. For any Mortgage Loan originated prior
to
October 1, 2002 that is subject to a prepayment penalty, such prepayment
penalty
does not extend beyond five years after the date of origination. For any
Mortgage Loan originated on or following October 1, 2002 that is subject
to a
prepayment penalty, such prepayment penalty does not extend beyond three
years
after the date of origination. Any such prepayment penalty is permissible
and
enforceable in accordance with its terms upon the mortgagor’s full and voluntary
principal prepayment under applicable law, except to the extent that: the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights; the
collectability thereof may be limited due to acceleration in connection
with a
foreclosure or other involuntary prepayment; or subsequent changes in applicable
law may limit or prohibit enforceability thereof under applicable law.
With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a penalty upon a prepayment prior to maturity: (i) the Mortgage Loan provides
some benefit to the Mortgagor (e.g., a rate or fee reduction) in exchange
for
accepting such prepayment penalty; (ii) the Mortgage Loan’s originator had a
written policy of offering the Mortgagor, or requiring third-party brokers
to
offer the Mortgagor, the option of obtaining a Mortgage Loan that did not
require payment of such a prepayment penalty and the Mortgagor was offered
such
a product by the Mortgage Loan’s originator; (iii) the prepayment penalty was
adequately disclosed to the Mortgagor in the loan documents pursuant to
applicable state and federal law; and
(iv)
such prepayment penalty shall not be imposed in any instance where the
Mortgage
Loan is accelerated or paid off in connection with the workout of a delinquent
mortgage or due to the Mortgagor’s default, notwithstanding that the terms of
the Mortgage Loan or state or federal law might permit the imposition of
such
prepayment penalty;
(ff) The
Mortgaged Property is lawfully occupied under applicable law, and 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;
(gg) [reserved];
(hh)
There is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgaged Property; 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;
(ii) The
Mortgagor has not notified the Company requesting relief under the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act, and
the Company has no knowledge of any relief requested or allowed to the
Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related Closing
Date
which has resulted or will result in an exclusion from, denial of, or defense
to
coverage under any insurance policy related to a Mortgage Loan (including,
without limitation, any exclusions, denials or defenses which would limit
or
reduce the availability of the timely payment of the full amount of the
loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud, or for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National
Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or similar institution which is supervised and
examined
by a federal or state authority;
(mm) With
respect to each Mortgage Loan secured in whole or in part by the interest
of the
Mortgagor as a lessee under a ground lease of a Mortgaged Property (a “Ground
Lease”) the real property securing such Mortgage Loan is located in a
jurisdiction in which the use of leasehold estates for residential properties
is
a widely-accepted practice and:
(a) The
Mortgagor is the owner of a valid and subsisting interest as tenant under
the
Ground Lease;
(b) The
Ground Lease is in full force and effect, unmodified and not supplemented
by any
writing or otherwise;
(c) The
mortgagor is not in default under any of the terms thereof and there are
no
circumstances which, with the passage of time or the giving of notice or
both,
would constitute an event of default thereunder;
(d) The
lessor under the Ground Lease is not in default under any of the terms
or
provisions thereof on the part of the lessor to be observed or
performed;
(e) The
term
of the Ground Lease exceeds the maturity date of the related Mortgage Loan
by at
least five years;
(f) The
Ground Lease or a memorandum thereof has been recorded and by its terms
permits
the leasehold estate to be mortgaged. The Ground Lease grants any leasehold
mortgagee standard protection necessary to protect the security of a leasehold
mortgagee;
(g) The
Ground Lease does not contain any default provisions that could give rise
to
forfeiture or termination of the Ground Lease except for the non-payment
of the
Ground Lease rents;
(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, the Ground Lease; and
(i) The
Ground Lease provides that the leasehold can be transferred, mortgaged
and
sublet an unlimited number of times either without restriction or on payment
of
a reasonable fee and delivery of reasonable documentation to the
lessor;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly 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;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
this Agreement. With respect to each Mortgage Loan, the Company is in possession
of a complete Mortgage File and Servicing File except for such documents
as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor is true,
accurate and complete and does not contain any statement that is e inaccurate
or
misleading in any material respect;
(ss)
There
does not exist on the related Mortgaged Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio or Combined Loan-to-Value Ratio
at the
time of origination of more than 100% or such other percentage set forth
in the
related Confirmation;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
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 a residential mortgage loan
having
high interest rates, points and/or fees), (c) a High Cost Loan or Covered
Loan,
as applicable (as such terms are defined in the current Standard & Poor’s
LEVELS® Glossary, Appendix E) or (d) in violation of any state law or ordinance
comparable to HOEPA. No Mortgage Loan (including purchase money loans or
refinance transactions) has an “annual percentage rate” or “total points and
fees” payable by the Mortgager (as each such term is defined under HOEPA) that
equal or exceed the applicable thresholds defined under HOEPA (Section
32 of
Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii);
(vv) No
Mortgagor was required to purchase any credit life, disability, accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit. No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection with
the
origination of the Mortgage Loan; No proceeds from any Mortgage Loan were
used
to purchase or finance single-premium insurance policies or debt cancellation
agreements as part of the origination of or as a condition to closing,
such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related Closing Date
have
been consolidated with the outstanding principal amount secured by the
Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having (A) first lien priority
with
respect to each Mortgage Loan which is indicated by the Company to be a
First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second lien priority
with respect to each Mortgage Loan which is indicated by the Company to
be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan Data Transmission),
in either case, by a title insurance policy, an endorsement to the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(yy) [Reserved];
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the related Mortgage Loan Schedule. The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing shall be legally
classified as real property, is permanently affixed to a foundation and
must
assume the characteristics of site-built housing and must otherwise conform
to
the requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, including without limitation
the
requirement that such manufactured housing will be the principal residence
of
the Mortgagor upon origination of the Mortgage Loan;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately furnished
complete information (e.g., favorable and unfavorable) on the related borrower
credit files to Equifax, Experian and Trans Union Credit Information Company
(three of the credit repositories), in accordance with the Fair Credit
Reporting
Act and its implementing regulations, on a monthly basis and the Company
will
furnish for each Mortgage Loan, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis;
(ddd) The
Company 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
Company 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. 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;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage Loan (i)
if the
related first lien provides for negative amortization, the LTV was calculated
at
the maximum principal balance of such first lien that could result upon
application of such negative amortization feature, and (ii) either no consent
for the Mortgage Loan is required by the holder of the first lien or such
consent has been obtained and is contained in the Mortgage File;
(fff) No
predatory or deceptive lending practices, including but not limited to,
the
extension of credit to the applicable Mortgagor without regard for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Mortgagor, were employed
by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan 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;
(hhh) No
Mortgage Loan (a) is secured by property located in the State of New York;
(b)
had an unpaid principal balance at origination of $300,000 or less, and
(c) has
an application date on or after April 1, 2003, the terms of which Mortgage
Loan
equal or exceed either the APR or the points and fees threshold for “high-cost
home loans,” as defined in Section 6-L of the New York State Banking
Law;
(iii) No
Mortgagor 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, taking into account such facts as, without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing through
Mortgage Loan originator’s higher-priced subprime lending channel was directed
towards or offered the Mortgage Loan originator’s standard mortgage line if the
Mortgagor was able to qualify for one of the standard products. If, at
the time
of loan application, the Mortgagor 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 Mortgagor’s application
to such affiliate for underwriting consideration;
(jjj) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related such facts as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan;
(kkk) All
points, 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 have been disclosed in
writing
to the Mortgagor in accordance with applicable state and federal law and
regulation;
(lll) All
points and fees related to each Mortgage Loan were disclosed in writing
to the
Mortgagor in accordance with applicable state and federal law and regulation.
No
Mortgagor was charged “points and fees” (whether or not financed) in an amount
that exceed the greater of (1) 5% of the principal amount of such Mortgage
Loan
(such 5% limitation is calculated in accordance with ▇▇▇▇▇▇ Mae’s requirements
set forth in the ▇▇▇▇▇▇ Mae Selling Guide) or (2) $1,000;
(mmm) [Reserved];
(nnn) As
of the
Closing Date, each
Loan
is eligible for sale in the secondary mortgage market or for securitization
without unreasonable credit enhancement.
(ooo) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 14, 2003 (Act 1340 or 2003);
(ppp) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 25, 2003 (Ky. Rev. Stat. Section
360.100).
(qqq) [Reserved];
(rrr) No
Mortgage Loan originated in the City of Oakland is subject to the City
of
Oakland, California Ordinance 12361, (the “Ordinance”) as a home
loan;
(sss) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership
and
Equity Protection Act;
(ttt) 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.);
(uuu) 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.);
(vvv) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase money Home
Loan,
(2) purchase money Covered Loan, or (3) a rate/term refinance Home Loan;
(www) No
Mortgage Loan originated in the city of Los Angeles, California on or after
the
effective date of the Los Angeles, California anti-predatory lending ordinance
is a “high-cost refinance home loan” under such ordinance;
(xxx) No
Mortgage Loan that is secured by property located within the State of Maine
meets the definition of a (i) “high-rate, high-fee” mortgage loan under Article
VIII, Title 9-A of the Maine Consumer Credit Code No Mortgage Loan or (ii)
“High-Cost Home Loan” as defined under the Maine House ▇▇▇▇ 383 ▇.▇. 494,
effective as of September 13, 2003;
(yyy) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction;
(zzz) With
respect to any Mortgage Loan for which a mortgage loan application was
submitted
by the Mortgagor after April 1, 2004, no such Mortgage Loan secured by
Mortgaged
Property in the State of Illinois which has a Mortgage Interest Rate in
excess
of 8.0% per annum has lender-imposed fees (or other charges) in excess
of 3.0%
of the original principal balance of the Mortgage Loan;
(aaaa) The
Mortgagor has not made 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;
(bbbb) No
Mortgage Loan is a Convertible Mortgage Loan;
(cccc) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth
of
Massachusetts was made to pay off or refinance an existing loan or other
debt of
the related borrower (as the term "borrower" is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
the
Massachusetts General Laws Chapter 183, Section 28C) unless (a) the related
Mortgage Interest Rate (that would be effective once the introductory rate
expires, with respect to Adjustable Rate Mortgage Loans) did or would not
exceed
by more than 2.50% the yield on United States Treasury securities having
comparable periods of maturity to the maturity of the related Mortgage
Loan as
of the fifteenth day of the month immediately preceding the month in which
the
application for the extension of credit was received by the related lender
or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage Note provides
that
the related Mortgage Interest Rate may not exceed at any time the Prime
rate
index as published in the Wall Street Journal plus a margin of one
percent;
(dddd) No
Mortgagor was charged “points and fees” in an amount greater than (a) $1,000 or
(b) 5% of the principal amount of the related Mortgage Loan, whichever
is
greater. For purposes of this representation, “points and fees” (x) include
origination, underwriting, broker and finder’s fees and charges that the lender
imposed as a condition of making the Mortgage Loan, whether they are paid
to the
lender or a third party; and (y) exclude bona fide discount points, fees
paid
for actual services rendered in connection with the origination of the
Mortgage
(such as attorneys’ fees, notaries fees and fees paid for property appraisals,
credit reports, surveys, title examinations and extracts, flood and tax
certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the
future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25 percent of the loan amount;
and
(eeee) With
respect to each Mortgage Loan, the related residence or dwelling is not
a
manufactured housing unit.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated August 30, 2006, (“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
EquiFirst Corporation (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated as of May
1,
2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as initial purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates
to the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
MASTR Asset-Backed Securities Trust 2006-HE3 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of August 1, 2006 (the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust administrator
(including its successors in interest and any successor servicers under
the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), HomEq
Servicing Corporation as servicer and U.S. Bank National Association, as
trustee
(including
its successors in interest and any successor trustees under the Pooling
Agreement,
the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trustee and the Servicer acting on the Trust’s behalf)
shall have all the rights and remedies available to the Assignor, insofar
as
they relate to the Mortgage Loans, under the Purchase Agreement, including,
without limitation, the enforcement of the document delivery requirements
and
remedies with respect to breaches of representations and warranties set
forth in
the Purchase Agreement, and shall be entitled to enforce all of the obligations
of the Company thereunder insofar as they relate to the Mortgage Loans,
and
(iv) all references to the Purchaser (insofar as they relate to the rights,
title and interest and, with respect to obligations of the Purchaser, only
insofar as they relate to the enforcement of the representations, warranties
and
covenants of the Company) or the Custodian under the Purchase Agreement
insofar
as they relate to the Mortgage Loans, shall be deemed to refer to the Trust
(including the Trustee and the Servicer acting on the Trust’s behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify, waiver,
or
otherwise alter any of the terms or provisions of the Purchase Agreement
which
amendment, modification, waiver or other alteration would in any way affect
the
Mortgage Loans or the Company’s performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent of the
Trustee.
Representations
and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(b) The
Company has full corporate power and authority to execute, deliver and
perform
its obligations under this Agreement and has full corporate power and authority
to perform its obligations under the Purchase Agreement. The execution
by the
Company of this Agreement is in the ordinary course of the Company’s business
and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company’s charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company
is now
a party or by which it is bound, or result in the violation of any law,
rule,
regulation, order, judgment or decree to which the Company or its property
is
subject. The execution, delivery and performance by the Company of this
Agreement have been duly authorized by all necessary corporate action on
part of
the Company. This Agreement has been duly executed and delivered by the
Company,
and, upon the due authorization, execution and delivery by the Assignor
and the
Assignee, will constitute the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms except
as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors’ rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or, to the best of
the
Company’s knowledge, threatened against the Company, before any court,
administrative agency or other tribunal, which would draw into question
the
validity of this Agreement or the Purchase Agreement, or which, either
in any
one instance or in the aggregate, would result in any material adverse
change in
the ability of the Company to perform its obligations under this Agreement
or
the Purchase Agreement, and the Company is solvent.
2. Pursuant
to Section 8 of the Purchase Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee and the Trust,
that the
representations and warranties set forth in Section 3.01 of the Purchase
Agreement (set forth on Schedule 1 hereto) are true and correct as of the
date
of this Agreement (the “Closing Date”) as if such representations and warranties
were made on such Closing Date, and that the representations and warranties
set
forth in Section 3.02 of the Purchase Agreement (set forth on Sechedule
1
hereto) are true and correct as of the related Servicing Transfer Date
(as
defined in the Purchase Agreement).
3. The
Assignor hereby makes the following representations and warranties as of
the
date hereof:
(a) 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;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such
terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E);
(d) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act; and
(e) To
the
best of the Assignor’s knowledge, with respect to the
representations and warranties set forth in Section
3.02, nothing has occurred in the period of time from the Servicing Transfer
Date (as defined in the Purchase Agreement) to the date hereof which would
cause
such representation and warranties to be untrue in any material respect
as of
the date hereof.
Remedies
for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Section
2 hereof
shall be as set forth in Subsection 3.01 of the Purchase Agreement as if
they
were set forth herein (including without limitation the repurchase and
indemnity
obligations set forth therein). In addition, the Company hereby acknowledges
and
agrees that any breach of the representations set forth in ▇▇▇▇▇▇▇ ▇.▇▇
(▇),
(▇), (▇▇), (▇▇), (▇▇), (▇▇), (▇▇▇), (▇▇▇), (▇▇▇), (▇▇▇) or (ooo) of the
Purchase
Agreement shall be deemed to materially and adversely affect the value
of the
related mortgage loans or the interests of the Trust in the related mortgage
loans.
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee and the Master Servicer acting
on
the Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 3 hereof shall be
as set
forth in Section 2.03 of the Pooling Agreement as if they were set forth
herein.
The
Assignor hereby acknowledges and agrees that a breach of any one of the
representations set forth in Section 3 above will be deemed to materially
adversely affect the interests of the certificateholders and shall require
a
repurchase of the affected Mortgage Loan(s).
Miscellaneous
4. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
5. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee.
6. This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
8. 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.
9. In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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EQUIFIRST
CORPORATION
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By:
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Name:
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Title:
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Vice
President
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EXHIBIT
A
Mortgage
Loan Schedule
AVAILABLE
UPON REQUEST
SCHEDULE
1
Limitations
on Representations and Warranties
Capitalized
terms used herein but not defined in this Schedule 1 shall have the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that as of
each
Closing Date and as of each Servicing Transfer Date or as of such date
specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing under the
laws of
North Carolina. The Company has all licenses necessary to carry out its
business
as now being conducted, and is licensed and qualified to transact business
in
and is in good standing under the laws of each state in which any Mortgaged
Property is located or is otherwise exempt under applicable law from such
licensing or qualification or is otherwise not required under applicable
law to
effect such licensing or qualification and no demand for such licensing
or
qualification has been made upon the Company by any such state, and in
any event
the Company is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of each Mortgage Loan and the interim
servicing of the Mortgage Loans in accordance with the terms of this Agreement.
No licenses or approvals obtained by the Company have been suspended or
revoked
by any court, administrative agency, arbitrator or governmental body and
no
proceedings are pending which might result in such suspension or
revocation;
(b) The
Company has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and the related Confirmation and to conduct its business
as
presently conducted; the Company has duly authorized the execution, delivery
and
performance of this Agreement and any agreements contemplated hereby, has
duly
executed and delivered this Agreement and the related Confirmation, and
any
agreements contemplated hereby, and this Agreement and the related Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements contemplated
hereby, constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their respective terms, except
as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting
the
enforceability of the rights of creditors; and all requisite corporate
action
has been taken by the Company to make this Agreement, the related Confirmation
and all agreements contemplated hereby valid and binding upon the Company
in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms
and
conditions of this Agreement and the related Confirmation will conflict
with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the Company is now a party or by which it is bound, or constitute
a
default or result in an acceleration under any of the foregoing, or result
in
the material violation of any law, rule, regulation, order, judgment or
decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have a material
adverse effect on the sale of the Mortgage Loans, the execution, delivery,
performance or enforceability of this Agreement or the related Confirmation,
or
which is reasonably likely to have a material adverse effect on the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement and the related Confirmation,
except for consents, approvals, authorizations and orders which have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement and the
related
Confirmation are in the ordinary course of business of the Company, and
the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Company pursuant to this Agreement and the related Confirmation are
not
subject to bulk transfer or any similar statutory provisions in effect
in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect to each Mortgage
Note and Mortgage have been legal and in accordance with applicable laws
and
regulations, and in all material respects in accordance with Accepted Servicing
Practices. The Company further represents and warrants that: with respect
to
escrow deposits and payments that the Company is entitled to collect, all
such
payments are in the possession of, or under the control of, the Company
or its
delegate, 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 and are being maintained in full compliance
with
applicable state and federal law and the provisions of the related Mortgage
Note
and Mortgage; as to any Mortgage Loan that is the subject of an escrow,
escrow
of funds is not prohibited by applicable law and has been established in
an
amount sufficient to pay for every escrowed item that remains unpaid and
has
been assessed but is not yet due and payable; no escrow deposits or other
charges or payments due under the Mortgage Note have been capitalized under
any
Mortgage or the related Mortgage Note; all Mortgage Interest Rate adjustments
have been made in strict compliance with state and federal law and the
terms of
the related Mortgage Note; and any interest required to be paid pursuant
to
state and local law has been properly paid and credited;
(h) The
Company has not used selection procedures that identified the Mortgage
Loans as
being less desirable or valuable than other comparable mortgage loans in
the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the Purchaser
as a sale
for reporting and accounting purposes and, to the extent appropriate, for
federal income tax purposes. The Company shall maintain a complete set
of books
and records for each Mortgage Loan which shall be clearly marked to reflect
the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage loans for
HUD,
with such facilities, procedures and personnel necessary for the sound
servicing
of such mortgage loans. The Company is duly qualified, licensed, registered
and
otherwise authorized under all applicable federal, state and local laws
and
regulations and is in good standing to sell mortgage loans to and service
mortgage loans;
(k) The
Company does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every covenant contained in this Agreement and
the
related Confirmation applicable to it. The Company is solvent and the sale
of
the Mortgage Loans will not cause the Company to become insolvent. The
sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared by,
or on
behalf of, the Company pursuant to this Agreement, the related Confirmation
or
in connection with the transactions contemplated hereby, contains or will
contain any statement that is or will be inaccurate or misleading in any
material respect;
(m) The
consideration received by the Company upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such
Mortgage
Loans;
(n) The
Company has delivered to the Initial Purchaser financial statements as
to its
last two complete fiscal years. 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
Company and its subsidiaries and have been prepared in accordance with
GAAP
consistently applied throughout the periods involved, except as set forth
in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Company since the date of the Company’s
financial statements that would have a material adverse effect on its ability
to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent or other
person
that may be entitled to any commission or compensation in connection with
the
sale of the Mortgage Loans; and
(p) The
Company is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date and as of the related Servicing Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Initial Purchaser, is
complete,
true and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security interest
with
respect to each Mortgage Loan which is indicated by the Company to be a
First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second lien and
second
priority security interest with respect to each Mortgage Loan which is
indicated
by the Company to be a Second Lien (as reflected on the Mortgage Loan Schedule),
in either case, in the related Mortgaged Property securing the related
Mortgage
Note;
(c) As
of the
related Closing Date, the Mortgage Loan is not delinquent in payment more
than
30 days and has not been dishonored; there are no material defaults under
the
terms of the Mortgage Loan; the Company has not 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 Loan; no payment
with
respect to each Mortgage Loan has been contractually delinquent during
the
preceding twelve-month period;
(d) To
the
best of the Company’s knowledge, all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground
rents
which previously became due and owing have been paid, or escrow funds have
been
established in an amount sufficient to pay for every such escrowed item
which
remains unpaid and which has been assessed but is not yet due and
payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been
recorded
to the extent any such recordation is required by law. No instrument of
waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been approved
by the issuer of any related title insurance policy, to the extent required
by
the related policy.
(f) 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 the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any
state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by a Qualified Insurer, against loss by fire, windstorm, hurricane,
hail damage or other perils normally under extended coverage endorsement,
in an
amount representing coverage not less than the lesser of (i) the lesser
of (a)
the maximum insurable value of the improvements securing such Mortgage
Loans and
(b) the full replacement cost of the improvements securing such Mortgage
Loan,
and (ii) the greater of (a) either (1) the outstanding principal balance
of the
Mortgage Loan with respect to each Mortgage Loan which is indicated by
the
Company to be a First Lien (as reflected on the Mortgage Loan Schedule)
or (2)
with respect to each Second Lien Mortgage Loan, the sum of the outstanding
principal balance of the first lien on such Mortgage Loan and the outstanding
principal balance of such Second Lien Mortgage Loan, and (b) an amount
such that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the
mortgagee from becoming a co-insurer, but in no event greater than the
maximum
amount permitted under applicable law. All such standard hazard policies
are in
full force and effect and on the date of origination contained a standard
mortgagee clause naming the Company and its successors in interest and
assigns
as loss payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as
amended, the Mortgage Loan is covered by a flood insurance policy meeting
the
requirements of the current guidelines of the Federal Insurance Administration,
in an amount not less than the amount required by the Flood Disaster Protection
Act of 1973, as amended. Such policy was issued by a Qualified Insurer.
The
Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at
the Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Each
Mortgage Loan and, if any, the related prepayment penalty complied in all
material respects with any and all requirements of any federal, state or
local
law including, without limitation, usury, truth in lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
fair housing, disclosure, or predatory, fair and abusive lending laws applicable
to the origination and servicing of loans of a type similar to the Mortgage
Loans and the consummation of the transactions contemplated hereby will
not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other than the
subordination of any Second Lien Mortgage Loan to the related First Lien),
in
whole or in part, or rescinded, 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 release, cancellation, subordination
or
rescission. The Company 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 Company waived any default
resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected (A)
first
lien and first priority security interest with respect to each Mortgage
Loan
which is indicated by the Company to be a First Lien (as reflected on the
Mortgage Loan Schedule), or (B) second lien and second priority security
interest with respect to each Mortgage Loan which is indicated by the Company
to
be a Second Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule),
in
either case, on the Mortgaged Property including all buildings on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating
and
air conditioning systems affixed 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 Mortgage and the
Mortgage Note do not contain any evidence of any security interest or other
interest or right thereto. Such lien is free and clear of all adverse claims,
liens and encumbrances having priority over the first lien of the Mortgage
subject only to (1) the lien of non-delinquent current real property taxes
and
assessments not yet due and payable, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of the public record as of the
date
of recording which are acceptable to mortgage lending institutions generally
and
either (A) which are referred to or otherwise considered in the appraisal
made
for the originator of the Mortgage Loan, or (B) which do not adversely
affect
the appraised value of the Mortgaged Property as set forth in such appraisal,
(3) other matters to which like properties are commonly subject which do
not
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 (4) with respect to each Mortgage Loan which is
indicated
by the Company to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security agreement,
chattel mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid, subsisting, enforceable
and perfected (A) first lien and first priority security interest with
respect
to each Mortgage Loan which is indicated by the Company to be a First Lien
(as
reflected on the Mortgage Loan Schedule), or (B) second lien and second
priority
security interest with respect to each Mortgage Loan which is indicated
by the
Company to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan
Schedule), in either case, on the property described therein, and the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and the Company
has
taken all action necessary to transfer such rights of enforceability to
the
Purchaser. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of the Company or the Mortgagor, or, to the best of the Company’s
knowledge, any other party involved in the origination or servicing of
the
Mortgage Loan. The proceeds of the Mortgage Loan have been fully disbursed
and
there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvements and
as to
disbursements of any escrow funds therefor have been complied with. All
costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid or are in the process of being paid,
and the
Mortgagor is not entitled to any refund of any amounts paid or due under
the
Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation the Purchaser
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan
to the
Purchaser, the Company will retain the Servicing File in trust for the
Purchaser
only for the purpose of interim servicing and supervising the interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including the
Mortgage
Note and the Mortgage, were not subject to an assignment or pledge, and
the
Company had good and marketable title to and was the sole owner thereof
and had
full right to transfer and sell the Mortgage Loan to the Purchaser free
and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to this Agreement and following the sale of the
Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or
security interest. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of interim
servicing the Mortgage Loan as set forth in this Agreement. Each Mortgagor
is a
natural person;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to prudent lenders in the secondary market with
respect
to title insurance and qualified to do business in the jurisdiction where
the
Mortgaged Property is located, insuring (subject to the exceptions contained
in
(j)(1), (2) and (3) above and, with respect to each Mortgage Loan which
is
indicated by the Company to be a Second Lien Mortgage Loan (as reflected
on the
Mortgage Loan Schedule) clause (4)) the Company, 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 and, with respect to each
Adjustable Rate Mortgage Loan, against any loss by reason of the invalidity
or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment in the Mortgage Interest Rate and Monthly Payment.
Additionally, such policy affirmatively insures ingress and egress to and
from
the Mortgaged Property. Where required by applicable state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. The Company, its successors and assigns,
are
the sole insureds of such lender’s title insurance policy, such title insurance
policy has been duly and validly endorsed to the Purchaser or the assignment
to
the Purchaser of the Company’s interest therein does not require the consent of
or notification to the insurer and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement and the related Confirmation.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Company, has done,
by act or
omission, anything which would impair the coverage of such lender’s title
insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related 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 Company nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration. With respect to each Mortgage
Loan
which is indicated by the Company to be a Second Lien Mortgage Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is in full
force and
effect, (ii) there is no default, breach, violation or event of acceleration
existing under such First Lien mortgage or the related mortgage note, (iii)
either no consent for the Mortgage Loan is required by the holder of the
First
Lien or such consent has been obtained and is contained in the Mortgage
File,
(iv) to the best of Company’s knowledge, 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
either (A) the First Lien mortgage contains a provision which 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 First Lien mortgage, and (v)
such
Second Lien Mortgage Loan is secured by a one- to four-family residence
that is
the principal residence of the Mortgagor;
(o) 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 law could give rise
to
such liens) affecting the related Mortgaged Property which are or may be
liens
prior to or equal to the lien of the related Mortgage;
(p) To
the
best of the Company’s knowledge, all improvements subject to the Mortgage which
were considered in determining the Appraised Value of the Mortgaged Property
lie
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
except those which are insured against by the title insurance policy referred
to
in clause (m) above and all improvements on the property comply with all
applicable zoning and subdivision laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage Loan and
the
Company has prudently originated and underwritten each Mortgage Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on forms generally
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Mortgage Loan bears interest
at the
Mortgage Interest Rate set forth in the related Mortgage Loan Schedule,
and
Monthly Payments under the Mortgage Note are due and payable on the Due
Date set
forth on the related Mortgage Loan Schedule. The Mortgage contains the
usual and
enforceable provisions of the originator at the time of origination for
the
acceleration of the payment of the unpaid principal amount of the Mortgage
Loan
if the related Mortgaged Property is sold without the prior consent of
the
mortgagee thereunder;
(r) To
the
best of the Company’s knowledge, the Mortgaged Property is not subject to any
material damage by waste, fire, earthquake, windstorm, flood or other casualty,
and is in good repair. At origination of the Mortgage Loan there was, and
there
currently is, no proceeding pending for the total or partial condemnation
of the
Mortgaged Property. To the best of the Company’s knowledge, there have not been
any condemnation proceedings with respect to the Mortgaged Property and
there
are no such proceedings scheduled to commence at a future date;
(s) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby.
There is no homestead or other exemption available to the Mortgagor which
would
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act 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 Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged Property which,
(a)
with respect to First Lien Mortgage Loans, was on appraisal form 1004 and
(b)
was signed prior to the final approval of the mortgage loan application
by a
Qualified Appraiser, who had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation
is
not affected by the approval or disapproval of the Mortgage Loan, and the
appraisal and appraiser both satisfy prudent lenders in the secondary market
and
requirements of Title XI of FIRREA and the regulations promulgated thereunder,
all as in effect on the date the Mortgage Loan was originated. The appraisal
is
in a form generally acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(w) The
related Mortgage Note is not and has not been secured by any collateral
except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in (j) above
and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent and the
Company has no knowledge of any circumstances or condition with respect
to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors to regard
the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to
become
delinquent, or materially adversely affect the value or marketability of
the
Mortgage Loan;
(aa) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
funds were disbursed in connection with the Mortgage Loan. The Mortgage
Loans
have an original term to maturity of not more than 30 years, with interest
payable in arrears on the Due Date indicated on the related Mortgage Loan
Schedule. Each Mortgage Note (other than with respect to a Balloon Mortgage
Loan) requires a monthly payment which is sufficient to fully amortize
the
original principal balance over the original term thereof (other than during
the
interest-only period with respect to a Mortgage Loan identified on the
related
Mortgage Loan Schedule as an interest-only Mortgage Loan) and to pay interest
at
the related Mortgage Interest Rate. With respect to each Mortgage Loan
identified on the Mortgage Loan Schedule as an interest-only Mortgage Loan,
the
interest-only period is five (5) years and following the expiration of
such
interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining term of
the
Mortgage Loan. With respect to each Balloon Mortgage Loan, the Mortgage
Note
requires a monthly payment which is sufficient to fully amortize the original
principal balance over the original term thereof and to pay interest at
the
related Mortgage Interest Rate and requires a final Monthly Payment
substantially greater than the preceding monthly payment which is sufficient
to
repay the remained unpaid principal balance of the Balloon Mortgage Loan
as the
Due Date of such monthly payment. No Mortgage Loan contains terms or provisions
which would result in negative amortization. No Mortgage Loan provides
for the
capitalization or forbearance of interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, 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 de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon,
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination no
portion
of the Mortgaged Property has been used for commercial purposes, provided,
that
Mortgaged Properties which contain a home office shall not be considered
as
being used for commercial purposes as long as the Mortgaged Property has
not
been altered for such commercial purposes and is not storing any chemicals
or
raw materials other than those commonly used for homeowner repair, maintenance
and/or household purposes. If a Mortgaged Property is used for mixed-use
purposes, then (i) such Mortgaged Property is a one-family
dwelling that the Mortgagor occupies as a principal residence, (ii)such
Mortgaged Property represents a legal, permissible use of the property
under the
local zoning requirements, (iii) such Mortgaged Property is primarily
residential in nature,
(iv)
the market
value of such Mortgaged Property must be primarily a function of its residential
characteristics, rather than of the business use or any special business-use
modifications that were made, (v) the Mortgagor is both the owner and the
operator of the business, (vi) such Mortgaged Property has not been altered
for
business use and (vii) such Mortgaged Property does not display any signage
indicating the business nature of such Mortgaged Property;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage Loans
are
subject to a Prepayment Penalty. For any Mortgage Loan originated prior
to
October 1, 2002 that is subject to a Prepayment Penalty, such prepayment
penalty
does not extend beyond five years after the date of origination. For any
Mortgage Loan originated on or following October 1, 2002 that is subject
to a
Prepayment Penalty, such prepayment penalty does not extend beyond three
years
after the date of origination. Any such prepayment penalty is permissible
and
enforceable in accordance with its terms upon the Mortgagor’s full and voluntary
principal prepayment under applicable law. With respect to any Mortgage
Loan
that contains a provision permitting imposition of a penalty upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such a prepayment
penalty; (iii) the prepayment penalty was adequately disclosed to the Mortgagor
in the loan documents pursuant to applicable state and federal law; and
(iv)
such prepayment penalty shall not be imposed in any instance where the
Mortgage
Loan is accelerated or paid off in connection with the workout of a delinquent
mortgage or due to the Mortgagor’s default, notwithstanding that the terms of
the Mortgage Loan or state or federal law might permit the imposition of
such a
prepayment penalty;
(ff) To
the
best of the Company’s knowledge, the Mortgaged Property is lawfully occupied
under applicable law, and 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;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium or planned
unit
development project meets the eligibility requirements of the Seller’s
Underwriting Guidelines. There is no litigation pending with respect to
the
related condominium unit, the development or the homeowner’s
association;
(hh)
To the
best of the Company’s knowledge, there is no pending action or proceeding
directly involving the Mortgaged Property in which compliance with any
environmental law, rule or regulation is an issue; to the best of the Company’s
knowledge, there is no violation of any environmental law, rule or regulation
with respect to the Mortgaged Property; and to the best of the Company’s
knowledge, 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;
(ii) The
Mortgagor has not notified the Company requesting relief under the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act, and
the Company has no knowledge of any relief requested or allowed to the
Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related Closing
Date
which has resulted or will result in an exclusion from, denial of, or defense
to
coverage under any insurance policy related to a Mortgage Loan (including,
without limitation, any exclusions, denials or defenses which would limit
or
reduce the availability of the timely payment of the full amount of the
loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud, or for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association, a savings
bank,
a commercial bank, a credit union, an insurance company, or similar institution
which is supervised and examined by a federal or state authority, or by
a
mortgagee approved by the Secretary of HUD pursuant to Sections 203 and
211 of
the National Housing Act;
(mm) No
Mortgaged Property is subject to a ground lease;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly 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;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
this Agreement. With respect to each Mortgage Loan, the Company is in possession
of a complete Mortgage File and Servicing File except for such documents
as have
been delivered to the Purchaser or its designee;
(rr) To
the
best of the Company’s knowledge, all information supplied by, on behalf of, or
concerning the Mortgagor is true, accurate and complete and does not contain
any
statement that is or will be inaccurate or misleading in any material respect;
(ss)
To the
best of the Company’s knowledge, there does not exist on the related Mortgaged
Property any hazardous substances, hazardous wastes or solid wastes, as
such
terms are defined in the Comprehensive Environmental Response Compensation
and
Liability Act, the Resource Conservation and Recovery Act of 1976, or other
federal, state or local environmental legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than
100% and no Mortgage Loan had a Combined Loan-to-Value Ratio at the time
of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
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 a residential mortgage loan
having
high interest rates, points and/or fees), (c) a High Cost Loan or Covered
Loan,
as applicable (as such terms are defined in the current version of Standard
& Poor’s LEVELS® Glossary, Appendix E) or (d) in violation of any state law
or ordinance comparable to HOEPA;
(vv) No
Mortgagor was required to purchase any credit life, disability, accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit. No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection with
the
origination of the Mortgage Loan; No proceeds from any Mortgage Loan were
used
to purchase or finance single-premium insurance policies or debt cancellation
agreements as part of the origination of or as a condition to closing,
such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related Closing Date
have
been consolidated with the outstanding principal amount secured by the
Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having (A) first lien priority
with
respect to each Mortgage Loan which is indicated by the Company to be a
First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second lien priority
with respect to each Mortgage Loan which is indicated by the Company to
be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan Data Transmission),
in either case, by a title insurance policy, an endorsement to the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(yy) Unless
otherwise set forth on the related Mortgage Loan Schedule, no Mortgage
Loan is a
Balloon Mortgage Loan;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the related Mortgage Loan Schedule. The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing is legally classified
as real property, is permanently affixed to a foundation, is the principal
residence of the Mortgagor, meets the characteristics of site built housing
and
is deemed to be "modular housing" as such term is defined by the Mortgage
Bankers Association;
(ccc) [Reserved];
(ddd) The
Company 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
Company 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. 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;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage Loan if the
related first lien provides for negative amortization, the LTV was calculated
at
the maximum principal balance of such first lien that could result upon
application of such negative amortization feature;
(fff) No
predatory or deceptive lending practices, including but not limited to,
the
extension of credit to the applicable Mortgagor without regard for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Mortgagor, were employed
by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan 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;
(hhh) No
Mortgagor 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, taking into account such facts as, without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing through
the
Mortgage Loan originator’s higher priced subprime lending channel was directed
towards or offered the Mortgage Loan’s originator standard mortgage line if the
Borrower was able to qualify for one of the standard products. If, at the
time
of loan application, the Mortgagor may have qualified for a lower cost
credit
product then the Mortgagor was offered such lower cost credit product by
the
Mortgage Loan’s originator;
(iii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related to such facts as,
without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan;
(jjj) All
points, 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 have been disclosed in
writing
to the Mortgagor in accordance with applicable state and federal law and
regulation;
(kkk)
All
points and fees related to each Mortgage Loan were disclosed in writing
to the
Mortgagor in accordance with applicable state and federal law and
regulation;
(lll) [Reserved];
(mmm) [Reserved];
(nnn) No
Mortgage Loan is a "High-Cost Home Loan" under the New Jersey Home Ownership
Security Act of 2002 (the "NJ Act"); and each Mortgage Loan subject to
the NJ
Act is considered under the NJ Act as, either, a (1) purchase money Home
Loan,
(2) purchase money Covered Loan (with respect to Mortgage Loans which were
originated between November 26, 2003 and July 7, 2004), (3) a rate/term
refinance Home Loan, or (4) a cash-out refinance Home Loan for which the
related
Mortgage File contains a statement signed by the Mortgagor stating that
the
proceeds of the loan will not be used for the purpose of home
improvement;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made 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;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth
of
Massachusetts was made to pay off or refinance an existing loan or other
debt of
the related borrower (as the term "borrower" is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
the
Massachusetts General Laws Chapter 183, Section 28C (the “Mass AF Law”) unless
(a) the related Mortgage Interest Rate (that would be effective once the
introductory rate expires, with respect to Adjustable Rate Mortgage Loans)
did
or would not exceed by more than 2.50% the yield on United States Treasury
securities having comparable periods of maturity to the maturity of the
related
Mortgage Loan as of the fifteenth day of the month immediately preceding
the
month in which the application for the extension of credit was received
by the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Mass AF Law or the regulations promulgated in connection
therewith) and the related Mortgage Note provides that the related Mortgage
Interest Rate may not exceed at any time the Prime rate index as published
in
the Wall
Street Journal
plus a
margin of one percent,
or if
(i) the refinancing transaction was in the “borrower’s interest” as determined
in accordance with the Mass AF Law and (ii) the related Servicing File
contains
evidence of the Company’s determination of “borrower’s interest” in accordance
with the Mass AF Law; and
(rrr) No
Mortgage Loan is a Convertible Mortgage Loan.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated August 30, 2006, (“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
Meritage Mortgage Corporation (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns to the
Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase and Warranties and Interim Servicing Agreement dated as of
May
1, 2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as initial purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates
to the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under
the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
MASTR Asset-Backed Securities Trust 2006-HE3 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of August 1, 2006 (the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust administrator
(including its successors in interest and any successor servicers under
the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), HomEq
Servicing Corporation as servicer and U.S. Bank National Association,
as trustee
(including
its successors in interest and any successor trustees under the Pooling
Agreement,
the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trustee and the Servicer acting on the Trust’s behalf)
shall have all the rights and remedies available to the Assignor, insofar
as
they relate to the Mortgage Loans, under the Purchase Agreement, including,
without limitation, the enforcement of the document delivery requirements
and
remedies with respect to breaches of representations and warranties set
forth in
the Purchase Agreement, and shall be entitled to enforce all of the obligations
of the Company thereunder insofar as they relate to the Mortgage Loans,
and
(iv) all references to the Purchaser (insofar as they relate to the rights,
title and interest and, with respect to obligations of the Purchaser,
only
insofar as they relate to the enforcement of the representations, warranties
and
covenants of the Company) or the Custodian under the Purchase Agreement
insofar
as they relate to the Mortgage Loans, shall be deemed to refer to the
Trust
(including the Trustee and the Servicer acting on the Trust’s behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify, waiver,
or
otherwise alter any of the terms or provisions of the Purchase Agreement
which
amendment, modification, waiver or other alteration would in any way
affect the
Mortgage Loans or the Company’s performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent of the
Trustee.
Representations
and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee and the
Trust as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform
its
obligations under this Agreement and has full power and authority to
perform its
obligations under the Purchase Agreement. The execution by the Company
of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party
or by which
it is bound, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement
have been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee,
will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is
considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in
any
material adverse change in the ability of the Company to perform its
obligations
under this Agreement or the Purchase Agreement, and the Company is solvent.
2. Pursuant
to Section 8 of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee and the Trust,
that the
representations and warranties set forth in Sections 3.01 and 3.02 (other
than
3.02(d), (e), (i), (j) (second sentence), (m) (last sentence), (n) (second
sentence), (p), (r), (v), (w), (ff), (hh), (ii), (qq) (second sentence
with
respect to the Servicing File), (ss), (ww) (second sentence), (aaa),
(ccc),
(ddd) and (rrr), which are made as of the Servicing Transfer Date as
defined in
the Purchase Agreement and 3.02(c), (f), (j) (the last clause of the
last
sentence with respect Company’s right to sell and assign), (l), (n) (first
clause of first compound sentence) and (qq) (second sentence with respect
to the
Mortgage File, which are made as of the Closing Date as defined in the
Purchase
Agreement) of the Purchase Agreement (set forth on Schedule 1 hereto),
are true
and correct as of the date of this Agreement as if such representations
and
warranties were made as of the date hereof.
3. The
Assignor hereby makes the following representations and warranties as
of the
date hereof:
(a) 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;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as
such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E);
(d) No
Mortgage Loan originated on or after October 1, 2002 through March 6,
2003 is
governed by the Georgia Fair Lending Act; and
(e) To
the
best of the Assignor’s knowledge, with respect to the
representations and warranties set forth in Section
3.02(d), (e), (i), (j) (second sentence), (m) (last sentence), (n) (second
sentence), (p), (r), (v), (w), (ff), (hh), (ii), (qq) (second sentence
with
respect to the Servicing File), (ss), (ww) (second sentence), (aaa),
(ccc),
(ddd) and (rrr), nothing has occurred in the period of time from the
Servicing
Transfer Date (as defined in the Purchase Agreement) to the date hereof
which
would cause such representation and warranties to be untrue in any material
respect as of the date hereof. With respect to the representations and
warranties set forth in Section 3.02(c), (f), (j) (the last clause of
the last
sentence with respect Company’s right to sell and assign), (l), (n) (first
clause of first compound sentence) and (qq) (second sentence with respect
to the
Mortgage File nothing has occurred in the period of time from the Closing
Date
(as defined in the Purchase Agreement) to the date hereof which would
cause such
representation and warranties to be untrue in any material respect as
of the
date hereof.
Remedies
for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available to
the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections
3 and 4
hereof shall be as set forth in Subsection 3.01 of the Purchase Agreement
as if
they were set forth herein (including without limitation the repurchase
and
indemnity obligations set forth therein). In addition, the Company hereby
acknowledges and agrees that any breach of the representations set forth
in
Section 3.02(e), (h) (first sentence), (n) (clause (v)), (ee) (third
and fifth
sentences), (pp), (uu), (vv) (second sentence), (bbb), (ccc), (ggg) (with
respect to Georgia), (hhh) (first two sentences), (iii), (kkk) (second
sentence), (nnn) or (ooo) of the Purchase Agreement shall be deemed to
materially and adversely affect the value of the related mortgage loans
or the
interests of the Trust in the related mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee and the Master Servicer
acting on
the Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 3 hereof shall be
as set
forth in Section 2.03 of the Pooling Agreement as if they were set forth
herein.
The
Assignor hereby acknowledges and agrees that a breach of any one of the
representations set forth in Section 3 above will be deemed to materially
adversely affect the interests of the certificateholders and shall require
a
repurchase of the affected Mortgage Loan(s).
Miscellaneous
4. This
Agreement shall be construed in accordance with the laws of the State
of New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
5. No
term
or provision of this Agreement may be waived or modified unless such
waiver or
modification is in writing and signed by the party against whom such
waiver or
modification is sought to be enforced, with the prior written consent
of the
Trustee.
6. This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
8. 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.
9. In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto) but not
defined in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MERITAGE
MORTGAGE CORPORATION
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By:
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Name:
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Title:
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EXHIBIT
A
Mortgage
Loan Schedule
AVAILABLE
UPON REQUEST
SCHEDULE
1
Limitations
on Representations and Warranties
Capitalized
terms used herein but not defined in this Schedule 1 shall have the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that as of
each
Closing Date and as of each Servicing Transfer Date or as of such date
specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing under the
laws of
Oregon. The Company has all licenses necessary to carry out its business
as now
being conducted, and is licensed and qualified to transact business in
and is in
good standing under the laws of each state in which any Mortgaged Property
is
located or is otherwise exempt under applicable law from such licensing
or
qualification or is otherwise not required under applicable law to effect
such
licensing or qualification and no demand for such licensing or qualification
has
been made upon the Company by any such state, and in any event the Company
is in
compliance with the laws of any such state to the extent necessary to
ensure the
enforceability of each Mortgage Loan and the interim servicing of the
Mortgage
Loans in accordance with the terms of this Agreement. No licenses or
approvals
obtained by the Company have been suspended or revoked by any court,
administrative agency, arbitrator or governmental body and no proceedings
are
pending which might result in such suspension or revocation;
(b) The
Company has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute,
deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and the related Confirmation and to conduct its business
as
presently conducted; the Company has duly authorized the execution, delivery
and
performance of this Agreement and any agreements contemplated hereby,
has duly
executed and delivered this Agreement and the related Confirmation, and
any
agreements contemplated hereby, and this Agreement and the related Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements contemplated
hereby, constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their respective terms, except
as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting
the
enforceability of the rights of creditors; and all requisite corporate
action
has been taken by the Company to make this Agreement, the related Confirmation
and all agreements contemplated hereby valid and binding upon the Company
in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms
and
conditions of this Agreement and the related Confirmation will conflict
with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any of the
terms,
conditions or provisions of any legal restriction or any agreement or
instrument
to which the Company is now a party or by which it is bound, or constitute
a
default or result in an acceleration under any of the foregoing, or result
in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or to the Company’s
knowledge threatened, or any order or decree outstanding, which is reasonably
likely to have a material adverse effect on the sale of the Mortgage
Loans, the
execution, delivery, performance or enforceability of this Agreement
or the
related Confirmation, or which is reasonably likely to have a material
adverse
effect on the financial condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement and the related Confirmation,
except for consents, approvals, authorizations and orders which have
been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement and the
related
Confirmation are in the ordinary course of business of the Company, and
the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Company pursuant to this Agreement and the related Confirmation are
not
subject to bulk transfer or any similar statutory provisions in effect
in any
applicable jurisdiction;
(g) The
Company has not used selection procedures that identified the Mortgage
Loans as
being less desirable or valuable than other comparable mortgage loans
in the
Company’s portfolio at the related Closing Date;
(h) The
Company will treat the transfer of the Mortgage Loans to the Purchaser
as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete set
of books
and records for each Mortgage Loan which shall be clearly marked to reflect
the
ownership of such Mortgage Loan by the Purchaser;
(i) The
Company is an approved seller/servicer of residential mortgage loans
for ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ Mac or HUD, with such facilities, procedures and personnel
necessary for the sound servicing of such mortgage loans. The Company
is duly
qualified, licensed, registered and otherwise authorized under all applicable
federal, state and local laws and regulations to conduct its business
as
presently conducted in each location where a Mortgaged Property is located;
(j) The
Company does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent and the
sale of
the Mortgage Loans will not cause the Company to become insolvent. The
sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay
or defraud
any of the Company’s creditors;
(k) No
statement, tape, diskette, form, report or other document prepared by,
or on
behalf of, the Company pursuant to this Agreement, the related Confirmation
or
in connection with the transactions contemplated hereby, contains or
will
contain any statement that is or will be inaccurate or misleading in
any
material respect. The Company has prudently originated and underwritten
each
Mortgage Loan;
(l) The
consideration received by the Company upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such
Mortgage
Loans;
(m) The
Company has delivered to the Initial Purchaser public financial statements
of
its parent holding company as to its last two complete fiscal years.
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 Company and its subsidiaries
and
have been prepared in accordance with GAAP consistently applied throughout
the
periods involved, except as set forth in the notes thereto. There has
been no
change in the business, operations, financial condition, properties or
assets of
the Company since the date of the Company’s financial statements that would have
a material adverse effect on its ability to perform its obligations under
this
Agreement or the related Confirmation;
(n) The
Company has not dealt with any broker, investment banker, agent or other
person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(o) The
Company is a member of MERS in good standing, and has been in compliance
in all
material respects with the rules and procedures of MERS in connection
with the
servicing of the MERS Mortgage Loans for as long as such Mortgage Loans
are
registered with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date and as of the related Servicing
Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Initial Purchaser, is
complete,
true and correct in all material respects;
(b) [Reserved];
(c) All
payments due on or prior to the related Closing Date for such Mortgage Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
in
payment more than 30 days and has not been dishonored, there are no material
defaults under the terms of the Mortgage Loan, the Company has not 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
Loan and no payment with respect to each Mortgage Loan has been delinquent
during the preceding twelve-month period by more than thirty (30) days
from the
Due Date of the payment;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer and
municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or
modified in any respect, except by written instruments which have been
recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the
Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been
approved
by the issuer of any related title insurance policy, to the extent required
by
the related policy. With respect to each Second Lien Mortgage Loan (a)
the
related first lien is in full force and effect, (b) there is no default,
breach,
violation or event of acceleration existing under the related first lien
mortgage or the mortgage note related to such first lien mortgage, (c)
either no
consent for the Mortgage Loan is required by the holder of the first
lien or
such consent has been obtained and is contained in the Mortgage Loan
File, (d)
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 under the related first lien mortgage loan, and either
(1) the
related first lien mortgage contains a provision which allows or (2)
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 related first lien mortgage, and
(e) such
Second Lien Mortgage Loan is secured by a one- to four-family residence
that is
the principal residence of the Mortgagor;
(f) The
Mortgage Note and the Mortgage (1) are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the
defense of
usury, (2) nor will the operation of any of the terms of the Mortgage
Note or
the Mortgage, or the exercise of any right thereunder, render the Mortgage
Note
or Mortgage unenforceable, in whole or in part, or subject to any right
of
rescission, set-off, counterclaim or defense, including the defense of
usury and
(3) no such right of rescission, set-off, counterclaim or defense has
been
asserted with respect thereto; the Mortgagor was not a debtor in any
state or
federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ Guides, against
loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the ▇▇▇▇▇▇ Mae Guides or by the ▇▇▇▇▇▇▇ Mac Guides, in an amount representing
coverage not less than the lesser of (i) the maximum insurable value
of the
improvements securing such Mortgage Loans, and (ii) the greater of (a)
either
(1) the outstanding principal balance of the Mortgage Loan with respect
to each
Mortgage Loan which is indicated by the Company to be a First Lien (as
reflected
on the Mortgage Loan Schedule) or (2) with respect to each Second Lien
Mortgage
Loan, the sum of the outstanding principal balance of the first lien
on such
Mortgage Loan and the outstanding principal balance of such Second Lien
Mortgage
Loan, and (b) an amount such that the proceeds thereof shall be sufficient
to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer,
but in no
event greater than the maximum amount permitted under applicable law.
All such
standard hazard policies are in full force and effect and on the date
of
origination contained a standard mortgagee clause naming the Company
and its
successors in interest and assigns as loss payee and (x) such clause
is still in
effect and (y) all premiums due thereon have been paid. If required by
the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered
by a
flood insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇ Mae
and ▇▇▇▇▇▇▇
Mac requirements, in an amount not less than the amount required by the
Flood
Disaster Protection Act of 1973, as amended. Such policy was issued by
an
insurer acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines. The Mortgage
(u)
obligates the Mortgagor thereunder to maintain all such insurance at
the
Mortgagor’s cost and expense, and (v) upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing, disclosure
or
predatory, fair and abusive lending laws applicable to the Mortgage Loan
or any
related Prepayment Penalty have been complied with in all material respects.
The
consummation of the transactions contemplated hereby will not involve
the
violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other than
the
subordination of any Second Lien Mortgage Loan to the related First Lien),
in
whole or in part, or rescinded, 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 release, cancellation, subordination
or
rescission. The Company 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, and the Company has not waived any default
resulting from any action or inaction by the Mortgagor;
(j) Subject
to the items listed in (1)-(4) below, the related Mortgage is a valid,
subsisting, enforceable and perfected (A) first lien and first priority
security
interest with respect to each Mortgage Loan which is indicated by the
Company to
be a First Lien (as reflected on the Mortgage Loan Schedule), or (B)
second lien
and second priority security interest with respect to each Mortgage Loan
which
is indicated by the Company to be a Second Lien Mortgage Loan (as reflected
on
the Mortgage Loan Schedule), in either case, on the Mortgaged Property
including
all buildings on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems affixed 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. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject
only to
(1) the lien of non-delinquent current real property taxes and assessments
not
yet due and payable, (2) covenants, conditions and restrictions, rights
of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A)
which are referred to or otherwise considered in the appraisal made for
the
originator of the Mortgage Loan, or (B) which do not adversely affect
the
appraised value of the Mortgaged Property as set forth in such appraisal,
(3)
other matters to which like properties are commonly subject which do
not
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 or (4) with respect to each Mortgage Loan which is
indicated
by the Company to be a Second Lien Mortgage Loan (as reflected on the
Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security agreement,
chattel mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid, subsisting, enforceable
and perfected (A) first lien and first priority security interest with
respect
to each Mortgage Loan which is indicated by the Company to be a First
Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien and second
priority
security interest with respect to each Mortgage Loan which is indicated
by the
Company to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan
Schedule), in either case, on the property described therein, and the
Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and the Company
has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage had the
legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has
taken place
on the part of the Company, the Mortgagor, or any other party involved
in the
origination or servicing of the Mortgage Loan. The proceeds of the Mortgage
Loan
have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage were paid or are
in the
process of being paid, and the Mortgagor is not entitled to any refund
of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation of
the
Assignment of Mortgage the Purchaser or its designee will be the owner
of record
of the Mortgage and the indebtedness evidenced by the Mortgage Note,
and upon
the sale of the Mortgage Loan to the Purchaser, the Company will retain
the
Servicing File in trust for the Purchaser only for the purpose of interim
servicing and supervising the interim servicing of the Mortgage Loan.
Immediately prior to the transfer and assignment to the Purchaser on
the related
Closing Date, the Mortgage Loan, including the Mortgage Note and the
Mortgage,
were not subject to an assignment or pledge, and the Company had good
and
marketable title to and was the sole owner thereof (except for a security
interest in each Mortgage Note and Mortgage in favor of the Company’s warehouse
lender(s) which security interest will be terminated simultaneously with
the
sale of such Mortgage Note and Mortgage to the Purchaser) and had full
right to
transfer and sell the Mortgage Loan to the Purchaser free and clear of
any
encumbrance, equity, lien, pledge, charge, claim or security interest
and has
the full right and authority subject to no interest or participation
of, or
agreement with, any other party, to sell and assign the Mortgage Loan
pursuant
to this Agreement and following the sale of the Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest.
The
Company intends to relinquish all rights to possess, control and monitor
the
Mortgage Loan, except for the purposes of interim servicing the Mortgage
Loan as
set forth in this Agreement. Either the Mortgagor is a natural person
or the
Mortgagor is an inter-vivos trust acceptable to ▇▇▇▇▇▇ Mae. With respect
to each
inter-vivos trust, holding title to the Mortgaged Property in such trust
will
not diminish any rights as a creditor including the right to full title
to the
Mortgaged Property in the event foreclosure proceedings are
initiated;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and qualified to
do
business in the jurisdiction where the Mortgaged Property is located,
insuring
(subject to the exceptions contained in (j)(1), (2) and (3) above and,
with
respect to each Mortgage Loan which is indicated by the Company to be
a Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) clause
(4)) the
Company, 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 and, with respect to each Adjustable Rate Mortgage Loan,
against
any loss by reason of the invalidity or unenforceability of the lien
resulting
from the provisions of the Mortgage providing for adjustment in the Mortgage
Interest Rate and Monthly Payment; provided that for Mortgage Loans secured
by
Mortgaged Property located in Iowa, the Company has obtained an attorney’s
opinion as to title matters. Additionally, such policy affirmatively
insures
ingress and egress to and from the Mortgaged Property. Where required
by
applicable state law or regulation, the Mortgagor has been given the
opportunity
to choose the carrier of the required mortgage title insurance. The Company,
its
successors and assigns, are the sole insureds of such lender’s title insurance
policy, such title insurance policy has been duly and validly endorsed
to the
Purchaser or the assignment to the Purchaser of the Company’s interest therein
does not require the consent of or notification to the insurer and such
lender’s
title insurance policy is in full force and effect and will be in full
force and
effect upon the consummation of the transactions contemplated by this
Agreement
and the related Confirmation. No claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage, including
the
Company, has done, by act or omission, anything which would impair the
coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing under
the
Mortgage or the related 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 Company nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration. With respect to each Mortgage
Loan
which is indicated by the Company to be a Second Lien Mortgage Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is in full
force and
effect, (ii) there is no default, breach, violation or event of acceleration
existing under such First Lien mortgage or the related mortgage note,
(iii)
either no consent for the Mortgage Loan is required by the holder of
the First
Lien or such consent has been obtained and is contained in the Mortgage
File,
(iv) to the best of Company’s knowledge, 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
either (A) the First Lien mortgage contains a provision which 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 First Lien mortgage, and (v)
such
Second Lien Mortgage Loan is secured by a one- to four-family residence
that was
(or would be) the principal residence of the Mortgagor upon the origination
of
the Second Lien Mortgage Loan;
(o) 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 law could give
rise to
such liens) affecting the related Mortgaged Property which are or may
be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie 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 except those which are
insured
against by the title insurance policy referred to in clause (m) above
and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage Loan
complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage Loan.
The
Mortgage Notes and Mortgages (exclusive of any riders) are on forms generally
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Mortgage Loan bears interest
at the
Mortgage Interest Rate set forth in the related Mortgage Loan Schedule,
and
Monthly Payments under the Mortgage Note are due and payable on the first
day of
each month. The Mortgage contains the usual and enforceable provisions
of the
originator at the time of origination for the acceleration of the payment
of the
unpaid principal amount of the Mortgage Loan if the related Mortgaged
Property
is sold without the prior consent of the mortgagee thereunder;
(r) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty, and is in good repair.
At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. There have not been any condemnation proceedings with respect
to the
Mortgaged Property and there are no such proceedings scheduled to commence
at a
future date;
(s) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby.
There is no homestead or other exemption available to the Mortgagor which
would
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly
qualified
if required under applicable law to act 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 Purchaser to the trustee under the
deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged Property
which, (a)
with respect to First Lien Mortgage Loans, was on appraisal form 1004
or form
2055 with an interior inspection, or (b) with respect to Second Lien
Mortgage
Loans, was on appraisal form 704, 2065 or 2055 with an exterior only
inspection,
and (c) with respect to (a) or (b) above was signed prior to the final
approval
of the mortgage loan application by a Qualified Appraiser, who had no
interest,
direct or indirect, in the Mortgaged Property or in any loan made on
the
security thereof, and whose compensation is not affected by the approval
or
disapproval of the Mortgage Loan, and the appraisal and appraiser both
satisfy
the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and Title XI of FIRREA
and the
regulations promulgated thereunder, all as in effect on the date the
Mortgage
Loan was originated. The appraisal is in a form acceptable to ▇▇▇▇▇▇
Mae or
▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings
bank
having principal offices in such state, or (4) not doing business in
such
state;
(w) The
related Mortgage Note is not and has not been secured by any collateral
except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in (j)
above and
such collateral does not serve as security for any other obligation except
with
respect to a junior Mortgage Loan identified on the Mortgage Loan
Schedule;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage
Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy as of the origination of the Mortgage
Loan and,
to the best of Company’s knowledge, the Mortgagor is not insolvent and the
Company has no knowledge of any circumstances or condition with respect
to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors to regard
the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan
to become
delinquent, or materially adversely affect the value or marketability
of the
Mortgage Loan;
(aa) Principal
payments on the Mortgage Loan (except for interest only Mortgage Loans)
commenced no more than sixty (60) days after the funds were disbursed
in
connection with the Mortgage Loan. The Mortgage Loans have an original
term to
maturity of not more than 30 years, with interest payable in arrears
on the
first day of each month. Each Mortgage Note (other than with respect
to a
Balloon Mortgage Loan) requires a monthly payment which is sufficient
to fully
amortize the original principal balance over the original term thereof
(other
than during the interest-only period with respect to a Mortgage Loan
identified
on the related Mortgage Loan Schedule as an interest-only Mortgage Loan)
and to
pay interest at the related Mortgage Interest Rate. With respect to each
Mortgage Loan identified on the Mortgage Loan Schedule as an interest-only
Mortgage Loan, the interest-only period does not exceed ten (10) years
(or such
lesser period specified on the Mortgage Loan Schedule) and following
the
expiration of such interest-only period, the remaining Monthly Payments
shall be
sufficient to fully amortize the original principal balance over the
remaining
term of the Mortgage Loan. With respect to each Balloon Mortgage Loan,
the
Mortgage Note requires a monthly payment which is sufficient to fully
amortize
the original principal balance over the original term thereof and to
pay
interest at the related Mortgage Interest Rate and requires a final Monthly
Payment substantially greater than the preceding monthly payment which
is
sufficient to repay the remained unpaid principal balance of the Balloon
Mortgage Loan as the Due Date of such monthly payment. No Mortgage Loan
contains
terms or provisions which would result in negative amortization. No Mortgage
Loan provides for the capitalization or forbearance of interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the related
Mortgage
Loan Schedule and consists of a single parcel of real property with a
detached
single family residence erected thereon, or a townhouse, 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 de minimis planned
unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon,
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date of origination no
portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage
Loans are
subject to a Prepayment Penalty. For any Mortgage Loan originated prior
to
October 1, 2002 that is subject to a Prepayment Penalty, such prepayment
penalty
does not extend beyond five years after the date of origination. For
any
Mortgage Loan originated on or following October 1, 2002 that is subject
to a
Prepayment Penalty, such prepayment penalty does not extend beyond three
years
after the date of origination.
Any such
prepayment penalty is permissible and enforceable in accordance with
its terms
upon the Mortgagor’s full and voluntary principal prepayment under applicable
law. With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a penalty upon a prepayment prior to maturity: (i) the Mortgage Loan
provides
some benefit to the Mortgagor (e.g., a rate or fee reduction) in exchange
for
accepting such prepayment penalty; (ii) the Mortgage Loan’s originator had a
written policy of offering the Mortgagor, or requiring third-party brokers
to
offer the Mortgagor, the option of obtaining a Mortgage Loan that did
not
require payment of such a prepayment penalty; and (iii) the prepayment
penalty
was adequately disclosed to the Mortgagor in the loan documents pursuant
to
applicable state and federal law;
(ff) The
Mortgaged Property is lawfully occupied under applicable law, and 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;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium or planned
unit
development project meets the eligibility requirements of ▇▇▇▇▇▇ Mae
and ▇▇▇▇▇▇▇
Mac;
(hh)
There is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an
issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgaged Property; 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;
(ii) The
Mortgagor has not notified the Company requesting relief under the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act, and
the Company has no knowledge of any relief requested or allowed to the
Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related Closing
Date
which has resulted or will result in an exclusion from, denial of, or
defense to
coverage under any insurance policy related to a Mortgage Loan (including,
without limitation, any exclusions, denials or defenses which would limit
or
reduce the availability of the timely payment of the full amount of the
loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud, or for any
other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association, a savings
bank,
a commercial bank, a credit union, an insurance company, or similar institution
which is supervised and examined by a federal or state authority, or
by a
mortgagee approved by the Secretary of HUD pursuant to Sections 203 and
211 of
the National Housing Act;
(mm) With
respect to each Mortgage Loan secured in whole or in part by the interest
of the
Borrower as a lessee under a ground lease of a Mortgaged Property (a
“Ground
Lease”) the real property securing such Mortgage Loan is located in a
jurisdiction in which the use of leasehold estates for residential properties
is
a widely-accepted practice and:
(a) The
Mortgagor is the owner of a valid and subsisting interest as tenant under
the
Ground Lease;
(b) The
Ground Lease is in full force and effect, unmodified and not supplemented
by any
writing or otherwise;
(c) The
mortgagor is not in default under any of the terms thereof and there
are no
circumstances which, with the passage of time or the giving of notice
or both,
would constitute an event of default thereunder;
(d) The
lessor under the Ground Lease is not in default under any of the terms
or
provisions thereof on the part of the lessor to be observed or
performed;
(e) The
term
of the Ground Lease exceeds the maturity date of the related Mortgage
Loan by at
least ten years;
(f) The
Ground Lease or a memorandum thereof has been recorded and by its terms
permits
the leasehold estate to be mortgaged. The Ground Lease grants any leasehold
mortgagee standard protection necessary to protect the security of a
leasehold
mortgagee;
(g) The
Ground Lease does not contain any default provisions that could give
rise to
forfeiture or termination of the Ground Lease except for the non-payment
of the
Ground Lease rents;
(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, the Ground Lease; and
(i) The
Ground Lease provides that the leasehold can be transferred, mortgaged
and
sublet an unlimited number of times either without restriction or on
payment of
a reasonable fee and delivery of reasonable documentation to the
lessor;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly 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;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or
destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage within the meaning of
Section
860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
this Agreement. With respect to each Mortgage Loan, the Company is in
possession
of a complete Mortgage File and Servicing File except for such documents
as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor is
true,
accurate and complete and does not contain any statement that is or will
be
inaccurate or misleading in any material respect;
(ss)
There
does not exist on the related Mortgaged Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of
more than
100% and no Mortgage Loan had a Combined Loan-to-Value Ratio at the time
of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
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 a residential mortgage loan
having
high interest rates, points and/or fees), (c) a High Cost Loan or Covered
Loan,
as applicable (as such terms are defined in the current version of Standard
& Poor’s LEVELS® Glossary which is now Version 5.6(d) Revised, Appendix E)
or (d) in violation of any state law or ordinance comparable to HOEPA.
No
Mortgage Loan has an “annual percentage rate” or total Points and Fees payable
by the Mortgagor (as each such term is defined in HOEPA) that equal or
exceed
the applicable thresholds defined under HOEPA (Section 32 of Regulation
Z, 12
C.F.R. Section 226.32(a)(1)(i) and (ii));
(vv) No
Mortgagor was required to purchase any credit life, disability, accident,
unemployment, personal property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit. No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
personal property, mortgage, accident or health insurance policy in connection
with the origination of the Mortgage Loan. No proceeds from any Mortgage
Loan
were used to purchase or finance single-premium insurance policies or
debt
cancellation agreements as part of the origination of or as a condition
to
closing, such Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related Closing
Date have
been consolidated with the outstanding principal amount secured by the
Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having (A) first lien priority
with
respect to each Mortgage Loan which is indicated by the Company to be
a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second lien
priority
with respect to each Mortgage Loan which is indicated by the Company
to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan Data Transmission),
in either case, by a title insurance policy, an endorsement to the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal
amount does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(yy) Unless
otherwise set forth on the related Mortgage Loan Schedule, no Mortgage
Loan is a
Balloon Mortgage Loan;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the related Mortgage Loan Schedule. The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received any
notice of
liens or legal actions with respect to such Mortgage Loan and no such
notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing shall be legally
classified as real property, is permanently affixed to a foundation and
must
assume the characteristics of site-built housing and must otherwise conform
to
the requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, including without limitation
the
requirement that such manufactured housing will be the principal residence
of
the Mortgagor upon origination of the Mortgage Loan;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately furnished
complete information (e.g. favorable and unfavorable) on the related
borrower
credit files to Equifax, Experian and Trans Union Credit Information
Company
(three of the credit repositories), in accordance with the Fair Credit
Reporting
Act and its implementing regulations, on a monthly basis and the Company
will
fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g. favorable
and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union
Credit Information Company (three of the credit repositories), on a monthly
basis.
(ddd) The
Company 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 Company 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.
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;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage Loan if
the
related first lien provides for negative amortization, the LTV was calculated
at
the maximum principal balance of such first lien that could result upon
application of such negative amortization feature;
(fff) No
predatory or deceptive lending practices, including but not limited to,
the
extension of credit to the applicable Mortgagor without regard for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit to
said Mortgagor which has no apparent benefit to said Mortgagor, were
employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan 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;
(hhh) No
Mortgagor 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, taking into account such facts as, without
limitation, the Mortgage Loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing through
the
Mortgage Loan originator’s higher-priced subprime lending channel was directed
towards or offered the Mortgage Loan originator’s standard mortgage line if the
Mortgagor was able to qualify for one of the standard products;
(iii) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related such facts as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on
the
Mortgage Loan;
(jjj) All
points, 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 have been disclosed in
writing
to the Mortgagor in accordance with applicable state and federal law
and
regulation;
(kkk) All
Points and Fees related to each Loan were disclosed in writing to the
Mortgagor
in accordance with applicable state and federal law and regulation. Except
as
otherwise disclosed in the Mortgage Loan Schedule, no Mortgagor was charged
Points and Fees (whether or not financed) in an amount that exceeds the
greater
of (1) 5% of the principal amount of such Mortgage Loan (such 5% limitation
is
calculated in accordance with ▇▇▇▇▇▇ Mae’s requirements as set forth in the
▇▇▇▇▇▇ Mae Selling Guide) or (2) $1,000;
(lll) The
Company will transmit full-file credit reporting data for each Mortgage
Loan
pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and for each Mortgage
Loan,
Company agrees it shall report one of the following statuses each month
as
follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(mmm) Each
Mortgage Loan is eligible for sale in the secondary mortgage market or
for
securitization without unreasonable credit enhancement;
(nnn) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase money Home
Loan,
(2) purchase money Covered Loan (with respect to Mortgage Loans which
were
originated between November 26, 2003 and July 7, 2004), or (3) a rate/term
refinance Home Loan;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute arising
out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made 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;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth
of
Massachusetts was made to pay off or refinance an existing loan or other
debt of
the related borrower (as the term "borrower" is defined in the regulations
promulgated by the Massachusetts Secretary of State in connection with
the
Massachusetts General Laws Chapter 183, Section 28C) unless (a) the related
Mortgage Interest Rate (that would be effective once the introductory
rate
expires, with respect to Adjustable Rate Mortgage Loans) did or would
not exceed
by more than 2.50% the yield on United States Treasury securities having
comparable periods of maturity to the maturity of the related Mortgage
Loan as
of the fifteenth day of the month immediately preceding the month in
which the
application for the extension of credit was received by the related lender
or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage Note provides
that
the related Mortgage Interest Rate may not exceed at any time the Prime
rate
index as published in the Wall
Street Journal
plus a
margin of one percent;
and
(rrr) The
origination, servicing and collection practices with respect to each
Mortgage
Note and Mortgage have been legal and in accordance with applicable laws
and
regulations, and in all material respects in accordance with Accepted
Servicing
Practices. The Company further represents and warrants that: with respect
to
escrow deposits and payments that the Company is entitled to collect,
all such
payments are in the possession of, or under the control of, the Company
or its
delegate, 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 and are being maintained in full compliance
with
applicable state and federal law and the provisions of the related Mortgage
Note
and Mortgage; as to any Mortgage Loan that is the subject of an escrow,
escrow
of funds is not prohibited by applicable law and has been established
in an
amount sufficient to pay for every escrowed item that remains unpaid
and has
been assessed but is not yet due and payable; no escrow deposits or other
charges or payments due under the Mortgage Note have been capitalized
under any
Mortgage or the related Mortgage Note; all Mortgage Interest Rate adjustments
have been made in strict compliance with state and federal law and the
terms of
the related Mortgage Note; and any interest required to be paid pursuant
to
state and local law has been properly paid and credited.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated August 30, 2006, (“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
WMC Mortgage Corp. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns to the
Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Amended
and Restated Master Seller’s Purchase and Warranties Agreement dated as of
December 1, 2005,
as
amended (the “Purchase
Agreement”),
between the Assignor, as initial purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates
to the
Mortgage Loans and (y) other than as provided below with respect to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
From
and
after the date hereof, the Company shall and does hereby recognize that
the
Assignee will transfer the Mortgage Loans and assign its rights under
the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
MASTR Asset-Backed Securities Trust 2006-HE3 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of August 1, 2006 (the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust administrator
(including its successors in interest and any successor servicers under
the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), HomEq
Servicing Corporation as servicer and U.S. Bank National Association,
as trustee
(including
its successors in interest and any successor trustees under the Pooling
Agreement,
the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trustee and the Servicer acting on the Trust’s behalf)
shall have all the rights and remedies available to the Assignor, insofar
as
they relate to the Mortgage Loans, under the Purchase Agreement, including,
without limitation, the enforcement of the document delivery requirements
and
remedies with respect to breaches of representations and warranties set
forth in
the Purchase Agreement, and shall be entitled to enforce all of the obligations
of the Company thereunder insofar as they relate to the Mortgage Loans,
and
(iv) all references to the Purchaser (insofar as they relate to the rights,
title and interest and, with respect to obligations of the Purchaser,
only
insofar as they relate to the enforcement of the representations, warranties
and
covenants of the Company) or the Custodian under the Purchase Agreement
insofar
as they relate to the Mortgage Loans, shall be deemed to refer to the
Trust
(including the Trustee and the Servicer acting on the Trust’s behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify, waiver,
or
otherwise alter any of the terms or provisions of the Purchase Agreement
which
amendment, modification, waiver or other alteration would in any way
affect the
Mortgage Loans or the Company’s performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent of the
Trustee.
Representations
and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee and the
Trust as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under
the laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform
its
obligations under this Agreement and has full power and authority to
perform its
obligations under the Purchase Agreement. The execution by the Company
of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party
or by which
it is bound, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement
have been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee,
will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is
considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in
any
material adverse change in the ability of the Company to perform its
obligations
under this Agreement or the Purchase Agreement, and the Company is solvent.
2. Pursuant
to Section 8 of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee and the Trust,
that the
representations and warranties set forth in Sections 3.01 and 3.02 (other
than Section 3.02 (c), (d), (e), (f), (g), (i), (j), the last sentence
of (m),
(n), (o) (to the Company’s knowledge), (r), (w), (z), (ff), (hh), (ii), (aaa),
and (ccc), which are made as of the Transfer Date as defined in the Purchase
Agreement and Section 3.02 (l) and (qq), which are made as of the Closing
Date
as defined in the Purchase Agreement) (set forth on Schedule 1 hereto),
of the
Purchase Agreement are true and correct as of the date of this Agreement
as if
such representations and warranties were made as of the date
hereof.
3. The
Assignor hereby makes the following representations and warranties as
of the
date hereof:
(a) 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;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as
such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E);
(d) No
Mortgage Loan originated on or after October 1, 2002 through March 6,
2003 is
governed by the Georgia Fair Lending Act; and
(e) To
the
best of the Assignor’s knowledge, with respect to the
representations and warranties set forth in
Section
3.02 (c), (d), (e), (f), (g), (i), (j), the last sentence of (m), (n),
(o) (to
the Company’s knowledge), (r), (w), (z), (ff), (hh), (ii), (aaa), and (ccc),
nothing has occurred in the period of time from the Transfer Date (as
defined in
the Purchase Agreement) to the date hereof which would cause such representation
and warranties to be untrue in any material respect as of the date hereof.
With
respect to the representations and warranties set forth in Section 3.02
(l) and
(qq) nothing has occurred in the period of time from the Closing Date
(as
defined in the Purchase Agreement) to the date hereof which would cause
such
representation and warranties to be untrue in any material respect as
of the
date hereof.
Remedies
for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available to
the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections
3 and 4
hereof shall be as set forth in Subsection 3.01 of the Purchase Agreement
as if
they were set forth herein (including without limitation the repurchase
and
indemnity obligations set forth therein). In addition, the Company hereby
acknowledges and agrees that any breach of the representations set forth
in
Section 3.02(h), Section 3.02(n)(iv), the second sentence of Section
3.02(ee),
Section 3.02(bbb)(iv), Sections 3.02(ccc) and (eee), Section 3.02(hhh)(a)
and(b), or Sections 3.02(kkk), (lll), (nnn), (ooo), (ppp) or (dddd) of
the
Purchase Agreement shall be deemed to materially and adversely affect
the value
of the related mortgage loans or the interests of the Trust in the related
mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available to
the
Assignee and the Trust (including the Trustee and the Master Servicer
acting on
the Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 3 hereof shall be
as set
forth in Section 2.03 of the Pooling Agreement as if they were set forth
herein.
The
Assignor hereby acknowledges and agrees that a breach of any one of the
representations set forth in Section 3 above will be deemed to materially
adversely affect the interests of the certificateholders and shall require
a
repurchase of the affected Mortgage Loan(s).
Miscellaneous
4. This
Agreement shall be construed in accordance with the laws of the State
of New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
5. No
term
or provision of this Agreement may be waived or modified unless such
waiver or
modification is in writing and signed by the party against whom such
waiver or
modification is sought to be enforced, with the prior written consent
of the
Trustee.
6. This
Agreement shall inure to the benefit of (i) the successors and assigns
of the
parties hereto and (ii) the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
8. 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.
9. In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto) but not
defined in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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WMC
MORTGAGE CORP.
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By:
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Name:
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Title:
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EXHIBIT
A
Mortgage
Loan Schedule
AVAILABLE
UPON REQUEST
SCHEDULE
1
Limitations
on Representations and Warranties
Capitalized
terms used herein but not defined in this Schedule 1 shall have the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that as of
each
Closing Date or as of such date specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing under the
laws of
California. The Company has all licenses necessary to carry out its business
as
now being conducted, and is licensed and qualified to transact business
in and
is in good standing under the laws of each state in which any Mortgaged
Property
is located or is otherwise exempt under applicable law from such licensing
or
qualification or is otherwise not required under applicable law to effect
such
licensing or qualification and no demand for such licensing or qualification
has
been made upon the Company by any such state, and in any event the Company
is in
compliance with the laws of any such state to the extent necessary to
ensure the
enforceability of each Mortgage Loan. No licenses or approvals obtained
by the
Company have been suspended or revoked by any court, administrative agency,
arbitrator or governmental body and no proceedings are pending which
might
result in such suspension or revocation, which is reasonably likely to
have a
material adverse effect on any Mortgage Loan (including the Purchaser’s interest
therein) or is reasonable likely to have a material adverse effect on
the
transactions contemplated by this Agreement;
(b) The
Company has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute,
deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and the related Confirmation and to conduct its business
as
presently conducted; the Company has duly authorized the execution, delivery
and
performance of this Agreement and any agreements contemplated hereby,
has duly
executed and delivered this Agreement and the related Confirmation, and
any
agreements contemplated hereby, and this Agreement and the related Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements contemplated
hereby, constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their respective terms, except
as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting
the
enforceability of the rights of creditors; and all requisite corporate
action
has been taken by the Company to make this Agreement, the related Confirmation
and all agreements contemplated hereby valid and binding upon the Company
in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms
and
conditions of this Agreement and the related Confirmation will conflict
with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any of the
terms,
conditions or provisions of any legal restriction or any agreement or
instrument
to which the Company is now a party or by which it is bound, or constitute
a
default or result in an acceleration under any of the foregoing, or result
in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or, to the Company’s
knowledge threatened, or any order or decree outstanding, which is reasonably
likely to have a material adverse effect on the sale of the Mortgage
Loans, the
execution, delivery, performance or enforceability of this Agreement
or the
related Confirmation, or which is reasonably likely to have a material
adverse
effect on the financial condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement and the related Confirmation,
except for consents, approvals, authorizations and orders which have
been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement and the
related
Confirmation are in the ordinary course of business of the Company, and
the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Company pursuant to this Agreement and the related Confirmation are
not
subject to bulk transfer or any similar statutory provisions in effect
in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect to each
Mortgage
Note and Mortgage have been legal and in accordance with applicable laws
and
regulations, and in all material respects in accordance with Accepted
Servicing
Practices. The Company further represents and warrants that no escrow
payments
are required under the related Mortgage Loan and no such payments are
in the
possession of, or under the control of, the Company or its delegate;
no escrow
deposits or other charges or payments due under the Mortgage Note have
been
capitalized under any Mortgage or the related Mortgage Note; all Mortgage
Interest Rate adjustments have been made in strict compliance with state
and
federal law and the terms of the related Mortgage Note; and any interest
required to be paid pursuant to state and local law has been properly
paid and
credited;
(h) The
Company has not used selection procedures that identified the Mortgage
Loans as
being less desirable or valuable than other comparable mortgage loans
in the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the Purchaser
as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete set
of books
and records for each Mortgage Loan which shall be clearly marked to reflect
the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller of residential mortgage loans for ▇▇▇▇▇▇
▇▇▇ or
▇▇▇▇▇▇▇ Mac and HUD. The Company is duly qualified, licensed, registered
and
otherwise authorized under all applicable federal, state and local laws
and
regulations and is in good standing to sell mortgage loans for ▇▇▇▇▇▇
Mae or
▇▇▇▇▇▇▇ Mac and no event has occurred which would make the Company unable
to
comply with eligibility requirements or which would require notification
to
either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(k) The
Company does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent and the
sale of
the Mortgage Loans will not cause the Company to become insolvent. The
sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay
or defraud
any of the Company’s creditors;
(l) reserved;
(m) The
consideration received by the Company upon the sale of the Mortgage Loans
constitutes fair consideration and reasonably equivalent value for such
Mortgage
Loans;
(n) The
Company has delivered to the Purchaser audited financial statements.
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 Company and its subsidiaries
and
have been prepared in accordance with GAAP consistently applied throughout
the
periods involved, except as set forth in the notes thereto. There has
been no
change in the business, operations, financial condition, properties or
assets of
the Company since the date of the Company’s financial statements that would have
a material adverse effect on its ability to perform its obligations under
this
Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent or other
person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(p) The
Company is a member of MERS in good standing, and will comply in all
material
respects with the rules and procedures of MERS in performing its obligations
under the Agreement.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Purchaser, is true and
correct
in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security interest
with
respect to each Mortgage Loan which is indicated by the Company to be
a First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second lien
and second
priority security interest with respect to each Mortgage Loan which is
indicated
by the Company to be a Second Lien (as reflected on the Mortgage Loan
Schedule),
in either case, in the related Mortgaged Property securing the related
Mortgage
Note;
(c) All
payments due prior to the related Cut-off Date for such Mortgage Loan
have been
made as of the related Closing Date; there are no material defaults under
the
terms of the Mortgage Loan; the Company has not 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 Loan; no payment
with
respect to each Mortgage Loan has been 30 days or more delinquent during
the
preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer and
municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or
modified in any respect, except by written instruments which have been
recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the
Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been
approved
by the issuer of the title insurance policy, to the extent required by
the
related policy;
(f) The
Mortgage Note and the Mortgage are not subject to any valid 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 the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any valid
right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has
been
asserted with respect thereto; and the Mortgagor was not a debtor in
any state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by a Qualified Insurer against loss by fire and hazards of
extended
coverage, in an amount representing coverage not less than the lesser
of (i) the
maximum insurable value of the improvements securing such Mortgage Loans,
and
(ii) the greater of (a) either (1) the outstanding principal balance
of the
Mortgage Loan with respect to each Mortgage Loan which is indicated by
the
Company to be a First Lien (as reflected on the Mortgage Loan Schedule)
or (2)
with respect to each Second Lien Mortgage Loan, the sum of the outstanding
principal balance of the first lien on such Mortgage Loan and the outstanding
principal balance of such Second Lien Mortgage Loan, and (b) an amount
such that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the
mortgagee from becoming a co-insurer, but in no event greater than the
maximum
amount permitted under applicable law. All such standard hazard policies
are in
full force and effect and on the date of origination contained a standard
mortgagee clause naming the originator of the Mortgage Loan and its successors
in interest and assigns as loss payee and such clause is still in effect
and all
premiums due thereon have been paid. If required by the Flood Disaster
Protection Act of 1973, as amended, the Mortgage Loan is covered by a
flood
insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration, in an amount not less than the amount
required
by the Flood Disaster Protection Act of 1973, as amended. Such policy
was issued
by a Qualified Insurer. The Mortgage obligates the Mortgagor thereunder
to
maintain all such insurance at the Mortgagor’s cost and expense, and upon the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor’s cost and expense and to seek reimbursement
therefor from the Mortgagor;
(h) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing, borrower-related
disclosure, predatory, fair and abusive lending laws applicable to the
Mortgage
Loan or any related Prepayment Penalty have been complied with in all
material
respects and the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other than
the
subordination of any Second Lien Mortgage Loan to the related First Lien),
in
whole or in part, or rescinded, 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 release, cancellation, subordination
or
rescission. The Company 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 Company waived any default
resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected (A)
first
lien and first priority security interest with respect to each Mortgage
Loan
which is indicated by the Company to be a First Lien (as reflected on
the
Mortgage Loan Schedule), or (B) second lien and second priority security
interest with respect to each Mortgage Loan which is indicated by the
Company to
be a Second Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule),
in
either case, on the Mortgaged Property including all buildings on the
Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements consisting of real property or fixtures
made at any
time with respect to the foregoing securing the Mortgage Note’s original
principal balance. Such lien is free and clear of all adverse claims,
liens and
encumbrances having priority over the first lien of the Mortgage subject
only to
(1) the lien of non-delinquent current real property taxes and assessments
not
yet due and payable, (2) covenants, conditions and restrictions, rights
of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A)
which are referred to or otherwise considered in the appraisal made for
the
originator of the Mortgage Loan, or (B) which do not adversely affect
the
appraised value of the Mortgaged Property as set forth in such appraisal,
(3)
other matters which are disclosed in the applicable title commitment
or policy,
or to which like properties are commonly subject which do not 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 (4) with respect to each Mortgage Loan which is indicated
by the
Company to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan
Schedule) a First Lien on the Mortgaged Property. Any security agreement,
chattel mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid, subsisting, enforceable
and perfected (A) first lien and first priority security interest with
respect
to each Mortgage Loan which is indicated by the Company to be a First
Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien and second
priority
security interest with respect to each Mortgage Loan which is indicated
by the
Company to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan
Schedule), in either case, on the property described therein, and the
Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and the Company
has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage had the
legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, misrepresentation,
gross
negligence or similar occurrence with respect to a Mortgage Loan has
taken place
on the part of the Company or the Mortgagor, or, on the part of any other
party
involved in the origination of the Mortgage Loan. The proceeds of the
Mortgage
Loan have been fully disbursed and there is no requirement for future
advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage were paid or are
in the
process of being paid, and the Mortgagor is not entitled to any refund
of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation the
Purchaser
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note. Immediately prior to the transfer and
assignment
to the Purchaser on the related Closing Date, the Mortgage Loan, including
the
Mortgage Note and the Mortgage, were not subject to an assignment or
pledge
(except with respect to any Mortgage Loan that is subject
to the assignment or the pledge of such Mortgage Loan by the Company
to a lender
of the Company whose lien on such Mortgage Loan will be released simultaneously
with the Purchaser’s purchase hereunder pursuant to a duly executed security
release certification substantially in the form attached hereto as Exhibit
I),
and the Company had good and marketable title to and was the sole owner
thereof
and had full right to transfer and sell the Mortgage Loan to the Purchaser
free
and clear of any encumbrance, equity, lien, pledge, charge, claim or
security
interest and has the full right and authority subject to no interest
or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to this Agreement and following the sale of the
Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or
security interest. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan.
Either
the Mortgagor is a natural person or the Mortgagor is an inter-vivos
trust
acceptable to ▇▇▇▇▇▇ ▇▇▇. With respect to each inter-vivos trust, holding
title
to the Mortgaged Property in such trust will not diminish any rights
as a
creditor including the right to full title to the Mortgaged Property
in the
event foreclosure proceedings are initiated;
(m) Each
Mortgage Loan is covered by an ALTA or, in the case of Mortgage Loans
secured by
property in California, a CLTA lender’s title insurance policy issued by a title
insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and qualified to do business
in
the jurisdiction where the Mortgaged Property is located, insuring (subject
to
the exceptions contained in (j)(1), (2) and (3) above and, with respect
to each
Mortgage Loan which is indicated by the Company to be a Second Lien Mortgage
Loan (as reflected on the Mortgage Loan Schedule) clause (4)) the Company,
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 and,
with respect to each Adjustable Rate Mortgage Loan, against any loss
by reason
of the invalidity or unenforceability of the lien resulting from the
provisions
of the Mortgage providing for adjustment in the Mortgage Interest Rate
and
Monthly Payment. Additionally, such policy affirmatively insures ingress
and
egress to and from the Mortgaged Property. Where required by applicable
state
law or regulation, the Mortgagor has been given the opportunity to choose
the
carrier of the required mortgage title insurance. The originator, its
successors
and assigns, are the sole insureds of such lender’s title insurance policy, such
title insurance policy has been duly and validly endorsed to the Purchaser
or
the assignment to the Purchaser of the Company’s interest therein does not
require the consent of or notification to the insurer and such lender’s title
insurance policy is in full force and effect and will be in full force
and
effect upon the consummation of the transactions contemplated by this
Agreement
and the related Confirmation. No claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage, including
the
Company, has done, by act or omission, anything which would impair the
coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing under
the
Mortgage or the related Mortgage Note and, to the best of Company’s knowledge,
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 Company nor any prior mortgagee
has
waived any default, breach, violation or event permitting acceleration.
With
respect to each Mortgage Loan which is indicated by the Company to be
a Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule) (i) the
First
Lien is in full force and effect, (ii) there is no default, breach, violation
or
event of acceleration existing under such First Lien mortgage or the
related
mortgage note, (iii) to the best of Company’s knowledge, 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 either (A) the First Lien mortgage contains a provision
which
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 First Lien
mortgage,
and
(iv) such Second Lien Mortgage Loan is secured by a one- to four-family
residence that is the principal residence of the Mortgagor upon the origination
of the Second Lien Mortgage Loan;
(o) 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 law could give
rise to
such liens) affecting the related Mortgaged Property which are or may
be liens
prior to or equal to the lien of the related Mortgage, unless insured
against by
the related title insurance policy;
(p) All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie 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 except those which are
insured
against by the title insurance policy referred to in clause (m) above
and all
improvements on the property comply un all material respects with all
applicable
zoning and subdivision laws and ordinances;
(q) The
Mortgage Loan was originated by the Company or a third-party originator
and sold
to the Company. The Mortgage Loan complies with all the terms, conditions
and
requirements of the Company’s Underwriting Standards in effect at the time of
origination of such Mortgage Loan, subject to exceptions thereto made
in the
ordinary course of business. The Mortgage Notes and Mortgages (exclusive
of any
riders) are on forms generally acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
The
Mortgage Loan bears interest at the Mortgage Interest Rate set forth
in the
related Mortgage Loan Schedule, and Monthly Payments under the Mortgage
Note are
due and payable on the first day of each month (subject to any grace
period set
forth in the Mortgage Note). The Mortgage contains the usual and enforceable
provisions of the originator at the time of origination for the acceleration
of
the payment of the unpaid principal amount of the Mortgage Loan if the
related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder, subject to bankruptcy, insolvency, moratorium, reorganization
and
other laws of general application affecting the rights of creditors and
by
general equitable principles;
(r) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty. At origination of the
Mortgage
Loan there was, and there currently is, no proceeding pending or scheduled
for
the total or partial condemnation of the Mortgaged Property;
(s) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby.
There is no homestead or other exemption available to the Mortgagor which
would
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly
qualified
if required under applicable law to act 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 Purchaser to the trustee under the
deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged Property
which,
(a) with respect to First Lien Mortgage Loans, was on appraisal form
1004 or
form 2055 with an interior inspection, (b) with respect to Second Lien
Mortgage
Loans, was on appraisal form 704, 1004, 2065 or 2055 with an exterior
only
inspection, and (c) with respect to (a) or (b) above, was signed prior
to the
final approval of the mortgage loan application by a Qualified Appraiser,
who
had no interest, direct or indirect, in the Mortgaged Property or in
any loan
made on the security thereof, and whose compensation is not affected
by the
approval or disapproval of the Mortgage Loan, and the appraisal satisfies
the
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and the appraisal and the appraiser
both satisfy Title XI of FIRREA and the regulations promulgated thereunder,
all
as in effect on the date the Mortgage Loan was originated;
(v) Each
of
the Company, any third-party originator, any servicer and any intervening
mortgagee which have had any interest in the Mortgage, whether as mortgagee,
assignee or otherwise, are (or, during the period in which they held
and
disposed of such interest, were) (A) in compliance with any and all applicable
licensing requirements of the laws of the state wherein the Mortgaged
Property
is located, and (B) (1) organized under the laws of such state, or (2)
qualified
to do business in such state, or (3) federal savings and loan associations
or
national banks or a Federal Home Loan Bank or savings bank having principal
offices in such state, or (4) not doing business in such state or (5)
not
required to be so qualified;
(w) The
related Mortgage Note is not and has not been secured by any collateral
except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in (j)
above;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage
Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy;
(aa) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days
after the
funds were disbursed in connection with the Mortgage Loan. The Mortgage
Loans
have an original term to maturity of not more than 30 years, with interest
payable in arrears on the first day of each month. Each Mortgage Note,
other
than with respect to a Balloon Mortgage Loan or other than during the
interest-only period with respect to a Mortgage Loan identified on the
related
Mortgage Loan Schedule as an interest-only Mortgage Loan, requires a
monthly
payment which is sufficient to fully amortize the original principal
balance
over the original term thereof and to pay interest at the related Mortgage
Interest Rate. With respect to each Balloon Mortgage Loan, the Mortgage
Note
requires a monthly payment which is sufficient to fully amortize the
original
principal balance over the original term thereof and to pay interest
at the
related Mortgage Interest Rate and requires a final Monthly Payment
substantially greater than the preceding monthly payment which is sufficient
to
repay the remained unpaid principal balance of the Balloon Mortgage Loan
as the
Due Date of such monthly payment. With respect to each Mortgage Loan
identified
on the Mortgage Loan Schedule as an interest-only Mortgage Loan, the
interest-only period does not exceed ten (10) years (or such lesser period
specified on the Mortgage Loan Schedule) and following the expiration
of such
interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining term
of the
Mortgage Loan. No Mortgage Loan contains terms or provisions which would
result
in negative amortization;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the related
Mortgage
Loan Schedule and consists of a single parcel or contiguous parcels of
real
property with a detached single family residence erected thereon, or
a
townhouse, 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 de minimis planned unit development, provided, however, that no residence
or
dwelling is a single parcel of real property with a cooperative housing
corporation erected thereon, or a mobile home. As of the date of origination,
no
portion of the Mortgaged Property was used for commercial purposes (other
than a
de minimis use), and since the date or origination no portion of the
Mortgaged
Property has been used for commercial purposes (other than a de minimis
use);
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage
Loans are
subject to a Prepayment Penalty. For any Mortgage Loan originated prior
to
October 1, 2002 that is subject to a Prepayment Penalty, such prepayment
penalty
does not extend beyond five years after the date of origination. For
any
Mortgage Loan originated on or following October 1, 2002 that is subject
to a
Prepayment Penalty, such prepayment penalty does not extend beyond three
years
after the date of origination.
Any such
prepayment penalty is permissible and enforceable in accordance with
its terms
upon the Mortgagor’s full and voluntary principal prepayment under applicable
law. 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 Mortgagor 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 Mortgagor 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 Mortgagor in the loan documents pursuant
to
applicable state and federal law, (iv) for Mortgage Loans originated
on or after
September 1, 2004, the duration of the prepayment period shall not exceed
three
(3) years from the date of the Mortgage Note, unless the Mortgage Loan
was
modified to reduce the prepayment period to no more than three years
from the
date of the Mortgage Note and the Mortgagor was notified in writing of
such
reduction in prepayment period, and (v) notwithstanding any state or
federal law
to the contrary, the Company shall not impose such prepayment premium
in any
instance when the Mortgage Loan is accelerated or paid off in connection
with
the Mortgagor’s failure to make the Monthly Payments;
(ff) The
Mortgaged Property is lawfully occupied under applicable law, and 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;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), or stock in a cooperative
housing
corporation, such condominium, cooperative or planned unit development
project
meets the eligibility requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac;
(hh)
There is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an
issue; the
Company has received no notice of any violation of any environmental
law, rule
or regulation with respect to the Mortgaged Property;
(ii) The
Mortgagor has not notified the Company requesting relief under the
Servicemembers Civil Relief Act of 2003 and any similar state or local
statute,
or any similar state law, and the Company has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act
of 2003 and any similar state or local statute, or any similar state
law;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related Closing
Date
which has resulted or will result in an exclusion from, denial of, or
defense to
coverage under any insurance policy related to a Mortgage Loan (including,
without limitation, any exclusions, denials or defenses which would limit
or
reduce the availability of the timely payment of the full amount of the
loss
otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud, or for any
other
reason under such coverage;
(ll) Except
with respect to each Mortgage Loan identified on the Mortgage Loan Schedule
as a
correspondent loan, the Mortgage Loan was originated by a mortgagee approved
by
the Secretary of Housing and Urban Development pursuant to sections 203
and 211
of the National Housing Act, a savings and loan association, a savings
bank, a
commercial bank, credit union, insurance company or similar institution
which is
supervised and examined by a federal or state authority. With respect
to
each
Mortgage Loan identified on the Mortgage Loan Schedule as a correspondent
loan,
the Mortgage Loan was re-underwritten by the Company prior to Company’s purchase
thereof.
(mm) Unless
otherwise set forth on the related Mortgage Loan Schedule, no Mortgaged
Property
is subject to a ground lease.
With
respect to each ground lease to which the Mortgaged Property is subject
(a
"Ground Lease"): (i) the Mortgagor is the owner of a valid and subsisting
interest as tenant under the Ground Lease; (ii) the Ground Lease is in
full
force and effect, unmodified and not supplemented by any writing or otherwise;
(iii) all rent, additional rent and other charges reserved therein have
been
paid to the extent they are payable to the date hereof; (iv) the Mortgagor
enjoys the quiet and peaceful possession of the estate demised thereby,
subject
to any sublease; (v) the Mortgagor is not in default under any of the
terms
thereof and there are no circumstances which, with the passage of time
or the
giving of notice or both, would constitute an event of default thereunder;
(vii)
the lessor under the Ground Lease is not in default under any of the
terms or
provisions thereof on the part of the lessor to be observed or performed;
(vii)
the lessor under the Ground Lease has satisfied all of its repair or
construction obligations, if any, to date pursuant to the terms of the
Ground
Lease; and (ix) 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, the Ground Lease;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly 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;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or
destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.07, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
this Agreement. With respect to each Mortgage Loan, the Company is in
possession
of a complete Mortgage File and Servicing File except for such documents
as have
been delivered to the Purchaser or its designee;
(rr) [reserved];
(ss)
[reserved];
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of
more than
100%;
(uu) None
of
the Mortgage Loans are subject to, covered by, or in violation of, the
Home
Ownership and Equity Protection Act of 1994 or any comparable state
law;
(vv) None
of
the proceeds of the Mortgage Loan were used to finance single-premium
credit
insurance policies;
(ww) Any
principal advances made to the Mortgagor prior to the related Closing
Date have
been consolidated with the outstanding principal amount secured by the
Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having (A) first lien priority
with
respect to each Mortgage Loan which is indicated by the Company to be
a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second lien
priority
with respect to each Mortgage Loan which is indicated by the Company
to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan Data Transmission),
in either case, by a title insurance policy, an endorsement to the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal
amount does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(yy) Except
with respect to each Mortgage Loan identified as a Balloon Loan on the
related
Mortgage Loan Schedule, no Loan has a balloon payment feature;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the related Mortgage Loan Schedule. The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received any
notice of
liens or legal actions with respect to such Mortgage Loan and no such
notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing shall be legally
classified as real property, is permanently affixed to a foundation and
must
assume the characteristics of site-built housing and must otherwise conform
to
the requirements (A) for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's and (B) of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
Mac, including, but not limited to, the requirements that (i) the related
Mortgage Note or contract, as applicable, be secured by a “single family
residence” within the meaning of Section 25(e)(10) of the Code, (ii) the fair
market value of the manufactured home securing each related Mortgage
Note or
contract, as applicable, was at least equal to 80% of the original principal
balance of such Mortgage Note or contract, as applicable, (iii) each
related
Mortgage Note or contract, as applicable, is a “qualified mortgage” under
Section 860G(a)(3) of the Code amd (iv) such manufactured housing will
be the
principal residence of the Mortgagor upon origination of the Mortgage
Loan;
(ccc) With
respect to each Mortgage Loan, the Company (i) 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
the
related Mortgagor credit files to Equifax, Experian, and Trans Union
Credit
Information Company (three of the credit repositories) and (ii) until
the
expiration of the Interim Servicing Period, 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 the related
Mortgagor credit files to Equifax, Experian, and Trans Union Credit Information
Company (three of the credit repositories);
(ddd) The
Company 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 Company has established an
anti-money laundering compliance program to the extent required by the
Anti-Money Laundering Laws, has conducted the due diligence in connection
with
the origination of each Mortgage Loan required by 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, information to identify the
applicable Mortgagor to the extent required by the Anti-Money Laundering
Laws.
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;
(eee) No
Mortgage Loan originated on or after October 1, 2002 and before March
7, 2003 is
secured by a Mortgaged Property located in the State of Georgia; and
no Mortgage
Loan originated on or after March 7, 2003 is a “high cost home loan” as defined
under the Georgia Fair Lending Act. No
Mortgage Loan is (a) subject to, covered by or in violation of the provisions
of
the Home Ownership and Equity Protection Act of 1994, as amended, (b)
a “high
cost”, “covered”, “abusive”, “predatory”, “Oklahoma Section 10” or “high risk”
mortgage loan (or a similarly designated loan using different terminology)
under
any federal, state or local law, including without limitation, the provisions
of
the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the
Arkansas
Home Loan Protection Act, effective as of June 14, 2003, Kentucky State
Statute
KRS 360.100, effective as of June 25, 2003, the New Jersey Home Ownership
Security Act of 2002, as amended (the “NJ Act”), the New Mexico Home Loan
Protection Act (N.M. Stat. ▇▇▇. §§ 58-21A-1 et seq.), the Illinois High-Risk
Home Loan Act (815 Ill. Comp. Stat. 137/1 et seq.), the Oklahoma Home
Ownership
and Equity Protection Act, Nevada Assembly ▇▇▇▇ No. 284, effective as
of Oct. 1,
2003, the Minnesota Residential Mortgage Originator and Servicer Licensing
Act
(MN Stat. §58.137), the South Carolina High-Cost and Consumer Home Loans Act,
effective January 1, 2004, or any other statute or regulation providing
assignee
liability to holders of such mortgage loans, or (c) subject to or in
violation
of any such or comparable federal, state or local statutes or regulations.
No
Mortage Loan (including purchase money loans or refinance transactions)
has an
“annual percentage rate” or “total points and fees” payable by the Borrower (as
each such term is defined under HOEPA) that equal or exceed the applicable
thresholds defined under HOEPA (Section 32 of Regulation Z, 12 C.F.R.
Section
226.32(a)(1)(i) and (ii));
(fff) With
respect to each Mortgage Loan which is a Second Lien Mortgage Loan (i)
if the
related first lien provides for negative amortization, the LTV was calculated
at
the maximum principal balance of such first lien that could result upon
application of such negative amortization feature, and (ii) either no
consent
for the Mortgage Loan is required by the holder of the first lien or
such
consent has been obtained and is contained in the Mortgage File;
(ggg) 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;
(hhh)
No
Mortgage Loan is (a) subject to, covered by or in violation of the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home,” “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
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 a residential mortgage loan
having
high interest rates, points and/or fees), (c) a High Cost Loan or Covered
Loan,
as applicable (as such terms are defined in current the Standard & Poor’s
LEVELS® Glossary, Appendix E) or (d) in violation of any state law or ordinance
comparable to HOEPA. No Loan (including purchase money loans or refinance
transactions) has an “annual percentage rate” or “total points and fees” payable
by the Mortgagor (as each such term is defined under HOEPA) that equal
or exceed
the applicable thresholds defined under HOEPA (Section 32 of Regulation
Z, 12
C.F.R. Section 226.32(a)(1)(i) and (ii));
(iii) No
Mortgage Loan originated before October 1, 2002 has a Prepayment Penalty
term
longer than five years after its origination and no Mortgage Loan originated
on
or after October 1, 2002 has a Prepayment Penalty term longer than three
years
after its origination;
(jjj) Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide (this representation and
warranty shall be construed only to mean that none of the representations
and
warranties specified in clauses (kkk) through (qqq) below have been breached);
(kkk) With
respect to each Mortgage Loan, the Mortgage Loan’s originator offered the
Mortgagor mortgage loan products offered by such Mortgage Loan’s originator, or
any affiliate of such Mortgage Loan’s originator, for which the Mortgagor
qualified;
(lll) 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. Such
underwriting methodology is designed to determine, among other things,
that at
the time of origination the borrower had a reasonable ability to make
timely
payments on the Mortgage Loan;
(mmm) With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a premium upon a prepayment prior to maturity: (i) prior to such Mortgage
Loan’s
origination, the Mortgagor agreed to such premium in exchange for a monetary
benefit (i.e., such Mortgage Loan would have been more costly (including
but not
limited to a rate or fee increase) if it did not contain such prepayment
premium) (ii) prior to such Mortgage Loan’s origination, the Mortgagor was
offered the option of obtaining a Mortgage Loan that did not require
payment of
such a premium; provided, that such offer may have been evidenced by
the
Company’s rate sheet/pricing grid relating to such Mortgage Loan, which provided
that the Mortgage Loan had a full prepayment premium buy-out pricing
adjustment
available; and (iii) the prepayment premium is disclosed to the Mortgagor
in the
loan documents pursuant to applicable state and federal law;
(nnn) No
Mortgagor was required to purchase any credit life, disability, accident
or
health insurance product as a condition of obtaining the extension of
credit. No
Mortgagor obtained a prepaid single premium credit life, disability,
unemployment, property, mortgage, accident or health insurance policy
in
connection with the origination of the Mortgage Loan; None of the proceeds
of
the Mortgage Loan were used to purchase or finance single-premium credit
life or
disability insurance policies or any comparable insurance;
(ooo) All
Points and Fees related to each Mortgage Loan were disclosed in writing
to the
Mortgagor in accordance with applicable state and federal law and regulation.
Except as otherwise set forth on the Mortgage Loan Schedule, no
Mortgagor was charged Points and Fees (whether or not financed) in an
amount
greater than (a) $1,000 or (b) 5% of the principal amount of the related
Mortgage Loan, whichever is greater. For
purposes of this representation, “points and fees” (x) include origination,
underwriting, broker and finder’s fees and charges that the lender imposed as a
condition of making the Mortgage Loan, whether they are paid to the lender
or a
third party; and (y) exclude bona fide discount points, fees paid for
actual
services rendered in connection with the origination of the Mortgage
(such as
attorneys’ fees, notaries fees and fees paid for property appraisals, credit
reports, surveys, title examinations and extracts, flood and tax certifications,
and home inspections); the cost of mortgage insurance or credit-risk
price
adjustments; the costs of title, hazard, and flood insurance policies;
state and
local transfer taxes or fees; escrow deposits for the future payment
of taxes
and insurance premiums; and other miscellaneous fees and charges that,
in total,
do not exceed 0.25 percent of the loan amount;
(ppp) All
points, fees and charges (including finance charges) whether or not financed,
assessed, collected or to be collected in connection with the origination
and
servicing of each Mortgage Loan, have been disclosed in writing to the
Mortgagor
in accordance with applicable state and federal law and regulation;
(qqq) Each
Prepayment Penalty is permissible, enforceable and collectible in accordance
with its terms (except to the extent that the enforceability or collectibility
thereof may be limited by bankruptcy, insolvency, moratorium, receivership
and
other similar laws affecting creditor’s rights generally) under all applicable
federal, state and local laws. Each Prepayment Penalty was originated
in
compliance with all applicable federal, state and local laws;
(rrr) No
Mortgage Loan (a) is secured by property located in the State of New
York; (b)
had an original principal balance of $300,000 or less, and (c) has an
application date on or after April 1, 2003, the terms of which loan equal
or
exceed either the APR or the points and fees threshold for "high-cost
home
loans," as defined in Section 6-L of the New York State Banking
Law;
(sss)
No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 or 2003);
(ttt) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 24, 2003 (Ky. Rev. Stat. Section 360.100);
(uuu) No
Mortgage Loan is a “home loan” as defined in the Nevada Assembly ▇▇▇▇ No. 284;
(vvv) As
of the
related Closing Date, in connection with requirements of anti-predatory
lending
laws or regulations, no nationally recognized rating agency would prohibit
the
Mortgage Loan at any time from being included in a securitization or
otherwise
require unreasonable credit enhancement which would have a material adverse
economic effect on the value of the Mortgage Loan if included in such
securitization;
(www) Each
Loan
originated on or after November 27, 2003 and subject to the New Jersey
Home
Ownership Security Act of 2002 (the “NJ Act”) is considered under the NJ Act as,
either, a (1) purchase money Home Loan, (2) purchase money Covered Loan,
or (3)
a rate/term refinance Home Loan;
(xxx)
[Reserved];
(yyy) No
Loan
is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity
Protection Act;
(zzz) No
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.);
(aaaa) No
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.);
(bbbb) [Reserved];
(cccc) No
Mortgage Loan that is secured by property located within the State of
Maine
meets the definition of a (i) “high-rate, high-fee” mortgage loan under Article
VIII, Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home Loan”
as defined under the Maine House ▇▇▇▇ 383 ▇.▇. 494, effective as of September
13, 2003;
(dddd) No
Mortgage Loan originated on or after August 1, 2004 requires the Mortgagor
to
submit to arbitration to resolve any dispute arising out of or relating
in any
way to the mortgage loan transaction;
(eeee) [Reserved];
(ffff) The
Mortgagor has not made 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 disclosed to the Mortgagor; provided, however disclosure
shall be
acceptable if made in accordance with any applicable laws and made as
a line
item on the good faith estimate and on the final HUD-1 settlement statement;
and
(gggg) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth
of
Massachusetts was made that does not comply with Massachusetts P. L.
2004, ch.
268 as codified at M.G.C.L. 183, § 28C and the regulations promulgated by the
Massachusetts Division of Banks at 209 CMR 53.00 et seq. (as published
in 1017
Mass. Reg. 61 (January 14, 2005)) in connection therewith (collectively,
the
“Massachusetts Refinancing Provisions”). Pursuant to the Massachusetts
Refinancing Provisions, no Mortgage Loan secured by a Mortgaged Property
located
in the Commonwealth of Massachusetts was made to refinance or pay off
all or
part of an existing home loan that was consummated within 60 months prior
to the
lender’s receipt of an application for a new home loan or other debt of Borrower
unless the Mortgage Loan complies in all material respects with the laws
of the
Commonwealth of Massachusetts and the Mortgage Loan is made in accordance
with
the "borrower's interest" standard under the Massachusetts Refinancing
Provisions.
EXHIBIT
E
REQUEST
FOR RELEASE
| To: |
U.S.
Bank National Association
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Document Collateral Services/ MASTR
2006-HE3
|
▇▇▇▇▇
Fargo Bank, N.A.
Attn:
Inventory Control
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Re:
|
Pooling
and Servicing Agreement, dated as of August 1, 2006,
among
Mortgage Asset Securitization Transactions, Inc., ▇▇▇▇▇ Fargo
Bank,
N.A., HomEq Servicing Corporation and U.S. Bank National
Association,
Mortgage
Pass-Through Certificates, Series
2006-HE3
|
In
connection with the administration of the Mortgage Loans held by you as
Custodian pursuant to the above-captioned Pooling and Servicing Agreement,
we
request the release, and hereby acknowledge receipt of the [Custodian’s]
[Trustee’s] Mortgage File Or the Mortgage Loan described below, for the reason
indicated.
In
addition, all amounts have been received in connection with such payment,
repurchase or liquidation and have been credited to the related Collection
Account.
Mortgage
Loan Number:
Mortgagor
Name. Address & Zip Code:
Reason
for Requesting Documents
(check
one):
|
1.
|
Mortgage
Paid in Full ____
|
|
|
2.
|
Foreclosure
____
|
|
|
3.
|
Substitution
____
|
|
|
4.
|
Other
Liquidation (Repurchases, etc.) ____
|
|
|
5.
|
Nonliquidation
Reason: ______________________________________
|
|
Address
to which Custodian should deliver
the
[Custodian's] [Trustee’s] Mortgage File:
| |
|
|
| By: ___________________________________________ | ||
|
(authorized
signer)
|
||
|
Issuer:
_________________________________________
Address:
_______________________________________
Date:
__________________________________________
|
||
[Custodian]
[Trustee]
[U.S.
Bank National Association]
[▇▇▇▇▇
Fargo Bank, N.A.]
Please
acknowledge the execution of the above request by your signature and date
below:
_____________________
___________
Signature Date
Documents
returned to [Custodian][Trustee]:
_____________________ ___________
[Custodian][Trustee] Date
EXHIBIT
F-1
FORM
OF
TRANSFEROR REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Transfer Unit / MASTR 2006-HE3
|
Re:
|
Mortgage
Pass-Through Certificates, Class ___, r
epresenting
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 August 1, 2006, among
Mortgage Asset Securitization Transactions, Inc. as Depositor, HomEq Servicing
Corporation, as Servicer, ▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer, Trust
Administrator and Custodian 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.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Transfer Unit / MASTR 2006-HE3
|
Re:
|
MASTR
Asset Backed Securities Trust 2006-HE3, Mortgage Pass-
Through
Certificates, Series 2006-HE3, 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
August 1, 2006, among Mortgage Asset Securitization Transactions, Inc. as
Depositor, HomEq Servicing Corporation, as Servicer, ▇▇▇▇▇ Fargo Bank, N.A.
as
Master Servicer, Trust Administrator and Custodian 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:
|
||
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 Buyer
|
||
______________
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.
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
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
1. The
undersigned is an officer of the proposed Transferee of an Ownership Interest
in
a Class [R] [R-X] Certificate (the “Certificate”) issued pursuant to the Pooling
and Servicing Agreement, (the “Agreement”), relating to the above-referenced
Certificates, dated as of August 1, 2006 (the “Agreement”),
among
Mortgage Asset Securitization Transactions, Inc., as depositor (the
“Depositor”),
HomEq
Servicing Corporation, as Servicer (the “Servicer”),
▇▇▇▇▇
Fargo Bank, N.A., master servicer (“the Master
Servicer”),
trust
administrator (the “Trust Administrator”) and custodian (the “Custodian”)
and
U.S. Bank National Association, as trustee (the “Trustee”).
Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee for the benefit of the Depositor and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for
a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the
tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record
holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02 (c) of the Agreement
and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory
sales.
The Transferee expressly agrees to be bound by and to abide by the provisions
of
Section 5.02 (c) of the Agreement and the restrictions noted on the face of
the Certificate. The Transferee understands and agrees that any breach of
any of
the representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom
the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person
that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit L to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends
to pay
its debts as they come due in the future, and understands that the taxes
payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is [_____________].
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable
to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
The
present value of the anticipated tax liabilities associated with holding
the
Certificate, as applicable, does not exceed the sum of:
|
(i)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at
the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject
to the
alternative minimum tax under Section 55 of the Code in the preceding two
years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using
a
discount rate equal to the short-term Federal rate prescribed by Section
1274(d)
of the Code for the month of the transfer and the compounding period used
by the
Transferee.
The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from
the
Certificate will only be taxed in the United
States;
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a
person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in
excess of $10 million;
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of
the U.S. Treasury Regulations;
and
|
|
(iv)
|
the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including,
but not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
None
of the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of
ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I
of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
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
|
)
|
|
|
)
|
ss.:
|
|
|
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
_____________,
[2006]
Mortgage
Asset Securitization Transactions, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.
Bank
National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Structured Finance/ MASTR 2006-HE3
|
Re:
|
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 2006-HE3, Mortgage Pass-Through Certificates, Series
2006-HE3, Class [CE] [P] [R](the “Certificates”), issued pursuant to a Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”) dated as of
August 1, 2006, among Mortgage Asset Securitization Transactions, Inc. as
depositor (the “Depositor”), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer, trust
administrator and custodian (the “Master Servicer”, the “Trust Administrator”
and the “Custodian”), ▇▇▇▇▇ Fargo Bank, N.A. as servicer (the “Servicer”) 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 C.F.R. ss. 2510.3-101.
|
Very
truly yours,
_____________________________________________
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
EXHIBIT
H
FORM
OF
REPORT PURSUANT TO SECTION 4.06
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K
ANNUAL
REPORT
Pursuant
to Section 13 or 15(d) of the
SECURITIES
EXCHANGE ACT OF 1934 (FEE REQUIRED)
FOR
FISCAL YEAR ENDED ________________
COMMISSION
FILE NUMBER: 333-_______
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
(as
depositor under the Pooling and Servicing Agreement,
dated
as
of August 1, 2006, providing for the issuance of
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-HE3)
Mortgage
Asset Securitization Transactions, Inc.
(EXACT
NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
|
__________________Delaware_________________
|
[__]
|
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(I.R.S.
Employer
Identification
No.)
|
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
10019
|
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
|
Registrant's
telephone number, including area code: [___]
Securities
registered pursuant to Section 12(b) of the Act:
None
Securities
registered pursuant to Section 12(g) of the Act:
None
Indicate
whether the Registrant: (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant was required to
file
such reports), and (2) has been subject to such filing requirements for the
past
90 days.
X
YES ___No
Item
1.
Business:
Not
applicable
Item
2.
Properties:
Not
applicable
Item
3.
Legal Proceedings:
None
Item
4.
Submission of Matters to a Vote of Security-Holders
None
Item
5.
Market for Registrant's Common Equity and Related Stockholder
Matters
To
the
best knowledge of the registrant there is no established public trading market
for the certificates.
There
are
approximately _____ holders of record as of the end of the reporting
year.
Item
6.
Selected Financial Data.
Not
applicable.
Item
7.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
Not
applicable
Item
8.
Financial Statements and Supplementary Data.
Not
applicable.
Item
9.
Changes in and Disagreements With Accountants on Accounting and Financial
Disclosure
None
Item
10.
Not
applicable
Item
11.
Executive Compensation
Not
applicable
Item
12.
Security Ownership of Certain Beneficial Owners and Management
Not
applicable
Item
13.
Certain Relationships and Related Transactions
Not
applicable
Item
14.
Exhibits, Financial Statement Schedules, and Reports on Form 8-K
a)
The
company filed on Form 8-K, separately for each distribution date,
the distribution
of funds related to the trust for each of the following
distribution dates:
Distribution
Date Form
8-K Filing Date
_________________
________________
_________________
________________
_________________
________________
b)
99.1
Annual
Report of Independent Public Accountants' as to o master
servicing activities
or servicing activities, as applicable
(a)
▇▇▇▇▇
Fargo Bank, N.A., as Master Servicer
99.2
Annual
Statement of Compliance with obligations under the Pooling and Servicing
Agreement or servicing agreement, as applicable, of:
(a)
▇▇▇▇▇
Fargo Bank, N.A., as Master Servicer
Such
document (i) is not filed herewith since such document was not received by
the
Reporting Person at least three business days prior to the due date of this
report; and (ii) will be included in an amendment to this report on Form
10-K/A
to be filed within 30 days of the Reporting Person's receipt of such
document.
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act
of
1934, the registrant has duly caused this report to be signed on its behalf
by
the undersigned thereunto duly authorized.
Date:
___________
|
Mortgage
Asset Securitization Transactions,
Inc.,
by ▇▇▇▇▇ Fargo Bank, N.A., as Trust
Administrator
for MASTR Asset Backed
Securities
Trust 2006-HE3, Mortgage Pass-
Through
Certificates
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
Company:
|
||
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
of
[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; 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 parties: [_________________].
|
▇▇▇▇▇
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:
|
Pooling
and Servicing Agreement, dated as of August 1, 2006, among Mortgage
Asset
Securitization Transactions, Inc., ▇▇▇▇▇ Fargo Bank, N.A., U.S.
Bank
National
Association and HomEq Servicing Corporation (the
“Agreement”)
|
HomEq
Servicing Corporation, as Servicer hereby certifies to the Master Servicer
that:
(A) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by
the
Company to the Depositor pursuant to the Agreement (collectively, the “Company
Servicing Information”);
(B) Based
on
my knowledge, the Company Servicing Information, 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 the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(C) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the
Depositor;
(D) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(E) The
Compliance Statement required to be delivered by the Company pursuant to
this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and Subcontractor pursuant
to the
Agreement, have been provided to the Depositor. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor.
Any material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
|
Date:
_________________________
|
|
|
By: _______________________________
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
K
FORM
OF
CAP CONTRACT
BEAR
▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DATE:
August
30, 2006
|
TO:
|
▇▇▇▇▇
Fargo Bank, N.A., not individually, but solely as Trust Administrator
for
the MASTR Asset Backed Securities Trust 2006-HE3, Mortgage Pass-Through
Certificates, Series 2006-HE3
|
ATTENTION:
Client
Manager - MABS 2006-HE3
TELEPHONE:
410-884-2000
FACSIMILE:
▇▇▇-▇▇▇-▇▇▇▇
FROM:
Derivatives
Documentation
TELEPHONE:
▇▇▇-▇▇▇-▇▇▇▇
FACSIMILE:
▇▇▇-▇▇▇-▇▇▇▇
SUBJECT:
Fixed
Income Derivatives Confirmation and Agreement
REFERENCE
NUMBER:
FXNCC8628
The
purpose of this letter agreement ("Agreement") is to confirm the terms
and
conditions of the Transaction entered into on the Trade Date specified
below
(the "Transaction") between Bear ▇▇▇▇▇▇▇ Financial Products Inc. ("BSFP")
and
▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as Trust Administrator
for
MASTR Asset Backed Securities Trust 2006-HE3, Mortgage Pass-Through
Certificates, Series 2006-HE3 ("Counterparty") under the Pooling and Servicing
Agreement, dated as of August 1, 2006, among ▇▇▇▇▇ Fargo Bank, N.A., as
Master
Servicer and Trust Administrator, HomeEq Servicing Corporation, as Servicer,
Mortgage Asset Securitization Transactions, Inc., as Depositor 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: August
23, 2006
Effective
Date:
February
25, 2007
Termination
Date:
August
25, 2011, such date shall be subject to adjustment in accordance with the
Business Day Convention.
Fixed
Amount (Premium):
|
Fixed
Rate Payer:
|
Counterparty
|
Fixed
Rate Payer
Payment
Date:
August
30, 2006
Fixed
Amount:
USD
484,000
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 March 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 Floating Rate Payer Payment Date shall
be one
Business Day prior to each Floating Rate Payer Period End Date.
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
Floating
Amount:
To
be
determined in accordance with the following Formula:
Greater of (i) 250 * (Floating Rate Option - Cap Rate) * Notional Amount
*
Floating Rate Day Count Fraction; and (ii) zero
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.
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 other contingent agreement 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 not apply 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) of the ISDA Form
Master
Agreement:
(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 this Agreement;
(ii) the
satisfaction of the agreement contained in Sections 4(a)(i) or 4(a)(iii)
of the
ISDA Form Master Agreement and the accuracy and effectiveness of any document
provided by the other party pursuant to Sections 4(a)(i) or 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:
▇▇▇▇▇
Fargo Bank N.A. is Trust Administrator under the Pooling and Servicing
Agreement.
4)
Tax
Event. The provisions of Section 2(d)(i)(4) and 2(d)(ii) of the ISDA Form
Master
Agreement shall not apply to Counterparty and Counterparty shall not be
required
to pay any additional amounts referred to therein.
5)
Limitation
on Events of Default.
Notwithstanding the terms of Sections 5 and 6 of the ISDA Form Master Agreement,
if at any time and so long as the Counterparty has satisfied in full all
its
payment obligations under Section 2(a)(i) of the ISDA Form Master Agreement
and
has at the time no future payment obligations, whether absolute or contingent,
under such Section, then unless BSFP is required pursuant to appropriate
proceedings to return to the Counterparty or otherwise returns to the
Counterparty upon demand of the Counterparty any portion of any such payment,
(a) the occurrence of an event described in Section 5(a) of the ISDA Form
Master
Agreement with respect to the Counterparty shall not constitute an Event
of
Default or Potential Event of Default with respect to the Counterparty
as
Defaulting Party and (b) BSFP shall be entitled to designate an Early
Termination Date pursuant to Section 6 of the ISDA Form Master Agreement
only as
a result of the occurrence of a Termination Event set forth in either Section
5(b)(i) or 5(b)(ii) of the ISDA Form Master Agreement with respect to BSFP
as
the Affected Party, or Section 5(b)(iii) with respect to BSFP as the Burdened
Party. 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.
6)
Documents
to be Delivered.
For the
purpose of Section 4(a) of the ISDA Form Master Agreement:
(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
|
|
Counterparty
|
An
executed copy of the Pooling and Servicing Agreement
|
Within
30 days after the date of this Agreement.
|
No
|
7)
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-HE3
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.
(l)
Additional
Definitional Provisions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor.
|
“S&P”
means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
|
|
“DBRS”
means Dominion Bond Rating
Services.
|
8)
“Affiliate”. Each of BSFP and Counterparty shall be deemed to have no Affiliates
for purposes of this Agreement, including for purposes of Section 6(b)(ii)
of
the ISDA Form Master Agreement.
9)
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 Trustee
on
behalf of the Supplemental Interest Trust 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.”
10)
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 BSFP’s right to receive payment of such amounts shall be
subject to the Pooling and Servicing Agreement.
11)
Trustee
Capacity.
Trust
Administrator 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 Trust
Administrator for the MASTR Asset Backed Securities Trust 2006 HE-3, Mortgage
Pass-Through Certificates, Series 2006-HE3, (b) each of the representations,
undertakings and agreements herein made on the part of the Counterparty
is made
and intended not as a personal representation, undertaking or agreement
of ▇▇▇▇▇
but is made and intended for the purpose of binding only the Counterparty,
(c)
nothing herein contained shall be construed as imposing any liability upon
▇▇▇▇▇, 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 negligence or willful misconduct in performing
the obligations of the Trust Administrator under the Pooling and Servicing
Agreement, (e) any resignation or removal of ▇▇▇▇▇ as Trust Administrator
for
the MASTR Asset Backed Securities Trust 2006 HE-3, Mortgage Pass-Through
Certificates, Series 2006-HE3 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.
12)
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. or MASTR Asset Backed Securities Trust 2006-HE3, Mortgage
Pass-Through Certificates, Series 2006-HE3 or the trust created pursuant
to the
Pooling and Servicing Agreement, 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-HE3, Mortgage
Pass-Through Certificates, Series 2006-HE3 (the “Certificates”) and any notes
backed by the Certificates (the “Notes”).
13)
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.
14)
Additional
Termination Events.
The
following Additional Termination Events will apply:
(a)
If a
Rating Agency Downgrade has occurred and BSFP has not, within the time
period
specified therein, complied with paragraph 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 Additional
Termination Event.
(b)
If,
upon the occurrence of a Cap Disclosure Event (as defined in paragraph
17(ii)
below) BSFP has not, within 10 calendar days after such Cap Disclosure
Event
complied with any of the provisions set forth in paragraph 17(iii) 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.
(c)
An
Additional Termination Event shall occur under the ISDA Form Master Agreement
upon unrescindable notice that the Terminator will purchase all Mortgage
Loans
and each related REO Property in accordance with Section 9.01 of the Pooling
and
Servicing Agreement. With respect to such Additional Termination Event,
Counterparty shall be the sole Affected Party and this Transaction shall
be the
sole Affected Transaction; provided, however, that notwithstanding Section
6(b)(iv) of the ISDA Form Master Agreement, only Counterparty may designate
an
Early Termination Date in respect of this Additional Termination
Event.
15)
Amendment
to the ISDA Form Master Agreement.
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 and
DBRS, the “Swap Rating Agencies”, and such rating thresholds, “Approved Rating
Thresholds” and such a downgrade, a “First Level Downgrade”), 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 and any Notes, 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, 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 (such a downgrade, a “Second Level Downgrade”), 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 Agreement, the occurrence of either a First Level
Downgrade
or a Second Level Downgrade may be referred to as a “Rating Agency Downgrade”.
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 any Notes 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 and any Notes.
17)
Compliance
with Regulation AB.
(i) BSFP
agrees and acknowledges that Mortgage Asset Securitization Transactions,
Inc.
(“Depositor”) 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 Cap disclosure event (“Cap Disclosure Event”) if, on any Business Day after
the date hereof, Depositor or Trust Administrator requests from BSFP the
applicable financial information described in Item 1115 of Regulation AB
(such
request to be based on a reasonable determination by Depositor or Trust
Administrator, in good faith, that such information is required under Regulation
AB) (the “Cap Financial Disclosure”).
(iii) Upon
the
occurrence of a Cap Disclosure Event, BSFP, at its own expense, shall (1)
(a)
either (i) provide to Depositor the current Cap Financial Disclosure in
an
▇▇▇▇▇-compatible format (for example, such information may be provided
in
Microsoft Word® or Microsoft Excel® format but not in .pdf format) or (ii)
provide written consent to Depositor to
incorporation by reference of such current Cap Financial Disclosure as
are filed
with the Securities and Exchange Commission in the reports of the Trust
filed
pursuant to the Exchange Act, (b) if applicable, cause its outside accounting
firm to provide its consent to filing or incorporation by reference of
such
accounting firm’s report relating to their audits of such current Cap Financial
Disclosure in the Exchange Act Reports of Depositor , and (c) provide to
Depositor any
updated Cap Financial Disclosure with respect to BSFP or any entity that
consolidates BSFP within five days of the release of any such updated Cap
Financial Disclosure; , (2) 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 (3) 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 Cap Provider,
and
cause such affiliate to provide Cap Financial Disclosure. If permitted
by
Regulation AB, any required Cap 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 Cap Financial Disclosure to
Depositor in accordance with clause (iii)(1) of paragraph 18 or causes
its
affiliate to provide Cap Financial Disclosure to Depositor in accordance
with
clause (iii)(c) of paragraph 18, it will indemnify and hold harmless Depositor,
its respective directors or officers and any person controlling Depositor,
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 Cap Financial Disclosure or caused by any omission or alleged omission
to
state in such Cap 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)
Third
party Beneficiary.
Depositor shall be an express third party beneficiary of this Agreement
as if a
party hereto to the extent of Depositor’s rights explicitly specified
herein.
19)
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, DBRS
and ▇▇▇▇▇’▇ has been provided notice of the same and each of S&P, DBRS 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 or Notes.
20)
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:
|
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.
San
Francisco, CA
ABA
Number: ▇▇▇-▇▇▇-▇▇▇
Account
Number: ▇▇▇▇▇▇▇▇▇▇
Account
Name: Corporate Trust Clearing
FFC:
50944102
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 TRUST ADMINISTRATOR FOR
THE
MASTR ASSET BACKED SECURITIES TRUST 2006-HE3, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-HE3
By: _____________________________________
Name:
Title:
am
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 (%)
|
|
Effective
Date
|
3/25/2007
|
49,592.00
|
5.6000
|
|
3/25/2007
|
4/25/2007
|
61,940.00
|
5.6000
|
|
4/25/2007
|
5/25/2007
|
75,208.00
|
5.6000
|
|
5/25/2007
|
6/25/2007
|
89,244.00
|
5.6000
|
|
6/25/2007
|
7/25/2007
|
101,984.00
|
5.6000
|
|
7/25/2007
|
8/25/2007
|
113,508.00
|
5.6000
|
|
8/25/2007
|
9/25/2007
|
123,892.00
|
5.6000
|
|
9/25/2007
|
10/25/2007
|
133,220.00
|
5.6000
|
|
10/25/2007
|
11/25/2007
|
141,556.00
|
5.6000
|
|
11/25/2007
|
12/25/2007
|
148,976.00
|
5.6000
|
|
12/25/2007
|
1/25/2008
|
155,536.00
|
5.6000
|
|
1/25/2008
|
2/25/2008
|
161,300.00
|
5.6000
|
|
2/25/2008
|
3/25/2008
|
166,324.00
|
5.6000
|
|
3/25/2008
|
4/25/2008
|
170,712.00
|
5.6000
|
|
4/25/2008
|
5/25/2008
|
184,976.00
|
5.6000
|
|
5/25/2008
|
6/25/2008
|
195,464.00
|
5.6000
|
|
6/25/2008
|
7/25/2008
|
202,784.00
|
5.6000
|
|
7/25/2008
|
8/25/2008
|
207,408.00
|
5.6000
|
|
8/25/2008
|
9/25/2008
|
209,768.00
|
5.7000
|
|
9/25/2008
|
10/25/2008
|
208,100.00
|
5.7000
|
|
10/25/2008
|
11/25/2008
|
206,104.00
|
5.7000
|
|
11/25/2008
|
12/25/2008
|
203,820.00
|
5.7000
|
|
12/25/2008
|
1/25/2009
|
201,288.00
|
5.7000
|
|
1/25/2009
|
2/25/2009
|
198,536.00
|
5.7000
|
|
2/25/2009
|
3/25/2009
|
195,588.00
|
5.7000
|
|
3/25/2009
|
4/25/2009
|
192,480.00
|
5.7000
|
|
4/25/2009
|
5/25/2009
|
189,228.00
|
5.7000
|
|
5/25/2009
|
6/25/2009
|
185,856.00
|
5.7000
|
|
6/25/2009
|
7/25/2009
|
182,384.00
|
5.7000
|
|
7/25/2009
|
8/25/2009
|
178,836.00
|
5.7000
|
|
8/25/2009
|
9/25/2009
|
175,220.00
|
5.7000
|
|
9/25/2009
|
10/25/2009
|
171,556.00
|
5.7000
|
|
10/25/2009
|
11/25/2009
|
167,860.00
|
5.7000
|
|
11/25/2009
|
12/25/2009
|
164,136.00
|
5.7000
|
|
12/25/2009
|
1/25/2010
|
160,404.00
|
5.7000
|
|
1/25/2010
|
2/25/2010
|
156,672.00
|
5.7000
|
|
2/25/2010
|
3/25/2010
|
152,944.00
|
5.7000
|
|
3/25/2010
|
4/25/2010
|
149,236.00
|
5.7000
|
|
4/25/2010
|
5/25/2010
|
145,548.00
|
5.7000
|
|
5/25/2010
|
6/25/2010
|
141,892.00
|
5.7000
|
|
6/25/2010
|
7/25/2010
|
138,272.00
|
5.7000
|
|
7/25/2010
|
8/25/2010
|
134,692.00
|
5.7000
|
|
8/25/2010
|
9/25/2010
|
131,156.00
|
5.7000
|
|
9/25/2010
|
10/25/2010
|
127,672.00
|
5.7000
|
|
10/25/2010
|
11/25/2010
|
124,240.00
|
5.7000
|
|
11/25/2010
|
12/25/2010
|
120,864.00
|
5.7000
|
|
12/25/2010
|
1/25/2011
|
117,544.00
|
5.7000
|
|
1/25/2011
|
2/25/2011
|
114,288.00
|
5.7000
|
|
2/25/2011
|
3/25/2011
|
111,092.00
|
5.7000
|
|
3/25/2011
|
4/25/2011
|
107,956.00
|
5.7000
|
|
4/25/2011
|
5/25/2011
|
104,888.00
|
5.7000
|
|
5/25/2011
|
6/25/2011
|
101,888.00
|
5.7000
|
|
6/25/2011
|
7/25/2011
|
98,944.00
|
5.7000
|
|
7/25/2011
|
Termination
Date
|
96,072.00
|
5.7000
|
EXHIBIT
L
ANNUAL
STATEMENT OF COMPLIANCE PURSUANT TO SECTION 3.20
MASTR
ASSET BACKED SECURITIES TRUST 2006-HE3,
MORTGAGE
PASS-THROUGH CERTIFICATES
I,
_____________________, hereby certify that I am a duly appointed
__________________________ of HomEq Servicing Corporation (the “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 August 1, 2006 (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc., as depositor, ▇▇▇▇▇ Fargo Bank, N.A. as
the
master servicer, the trust administrator and custodian, the Servicer 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 the 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 the Agreement in all material respects
throughout such year.
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 Servicer, hereby
certify that _________________ is a duly elected, qualified, and acting
_______________________ of the 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
M
FORM
OF
INTEREST RATE SWAP AGREEMENT
BEAR
▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
| DATE: |
August
30, 2006
|
| TO: |
▇▇▇▇▇
Fargo Bank, N.A., not individually, but solely as Supplemental
Interest
Trust Trustee on behalf of the Supplemental Interest Trust
for the MASTR
Asset Backed Securities Trust 2006-HE3, Mortgage Pass-Through
Certificates, Series
2006-HE3
|
| ATTENTION: |
Client
Manager - MABS 2006-HE3
|
|
TELEPHONE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
| FACSIMILE: |
▇▇▇-▇▇▇-▇▇▇▇
|
| FROM: |
Derivatives
Documentation
|
| TELEPHONE: |
▇▇▇-▇▇▇-▇▇▇▇
|
| FACSIMILE: |
▇▇▇-▇▇▇-▇▇▇▇
|
| SUBJECT: |
Fixed
Income Derivatives Confirmation and Agreement
|
| REFERENCE NUMBER: |
FXNSC8631
|
The
purpose of this letter agreement ("Agreement") is to confirm the terms
and
conditions of the Transaction entered into on the Trade Date specified
below
(the " Transaction") between Bear ▇▇▇▇▇▇▇ Financial Products Inc. ("BSFP")
and
▇▇▇▇▇ Fargo Bank, N.A., not individually, but solely as Supplemental Interest
Trust Trustee on behalf of the Supplemental Interest Trust for MASTR Asset
Backed Securities Trust 2006-HE3, Mortgage Pass-Through Certificates, Series
2006-HE3 ("Counterparty") under the Pooling and Servicing Agreement, dated
as of
August 1, 2006, among ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Trust
Administrator, HomEq Servicing Corporation, as Servicer, Mortgage Asset
Securitization Transactions, Inc., as Depositor 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: |
August
23, 2006
|
| Effective Date: |
August
30, 2006
|
| Termination Date: |
August
25, 2011, 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:
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate Payer
Period
End Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
September 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
one Business Day prior to each Fixed Rate Payer Period End
Date.
|
|
Fixed
Rate:
|
With
respect to any Calculation Period, the rate set forth for such
period in
Schedule I attached hereto.
|
| 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
|
Period
End Dates:
|
The
25th
calendar day of each month during
the Term
of this Transaction, commencing September 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
Date shall be
one Business Day prior to each Floating Rate Payer Period
End
Date.
|
Floating
Rate for initial
|
Calculation
Period:
|
To
be determined.
|
|
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
|
|
Spread:
|
None
|
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.
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 other contingent agreement pursuant to paragraph
15
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) of the ISDA Form
Master
Agreement:
(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 this Agreement;
(ii) the
satisfaction of the agreement contained in Sections 4(a)(i) or 4(a)(iii)
of the
ISDA Form Master Agreement and the accuracy and effectiveness of any document
provided by the other party pursuant to Sections 4(a)(i) or 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:
▇▇▇▇▇
Fargo Bank N.A. is Supplemental Interest Trust Trustee of the Supplemental
Interest Trust.
4)
Tax
Event. The provisions of Section 2(d)(i)(4) and 2(d)(ii) of the ISDA Form
Master
Agreement shall not apply to Counterparty and Counterparty shall not be
required
to pay any additional amounts referred to therein.
5)
Documents
to be Delivered.
For the
purpose of Section 4(a) of the ISDA Form Master Agreement:
(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
|
|
Counterparty
|
An
executed copy of the Pooling and Servicing Agreement
|
Within
30 days after the date of this Agreement.
|
No
|
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-HE3
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
Phone:
410-884-2000
(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 15 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 15 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.
(l)
Additional
Definitional Provisions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor.
|
“S&P”
means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
|
|
“DBRS”
means Dominion Bond Rating
Services.
|
7)
"Affiliate". Each of BSFP and Counterparty shall be deemed to have no 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
on behalf of the Supplemental Interest Trust 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 BSFP’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 Supplemental Interest Trust 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 a personal representation, undertaking or agreement of ▇▇▇▇▇ but is
made and
intended for the purpose of binding only the Counterparty, (c) nothing
herein
contained shall be construed as imposing any liability upon ▇▇▇▇▇, 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
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, the Supplemental Interest
Trust,
Mortgage Asset Securitization Transactions, Inc. or MASTR Asset Backed
Securities Trust 2006-HE3, Mortgage Pass-Through Certificates, Series 2006-HE3
or the trust created pursuant to the Pooling and Servicing Agreement, 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-HE3, Mortgage Pass-Through Certificates, Series
2006-HE3 (the “Certificates”) and any notes backed by the Certificates (the
“Notes”).
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)
Additional
Termination Events.
The
following Additional Termination Events will apply:
(a)
If a
Rating Agency Downgrade has occurred and BSFP has not, within the time
period
specified therein, complied with paragraph 15
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.
(b)
If,
upon the occurrence of a Swap Disclosure Event (as defined in paragraph
16(ii))
below) BSFP has not, within 10 calendar days after such Swap Disclosure
Event
complied with any of the provisions set forth in paragraph 16(iii) 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.
(c)
If,
without the prior written consent of BSFP where such consent is required
under
the Pooling and Servicing Agreement (such consent not to be unreasonably
withheld), an amendment or supplemental agreement is made to the Pooling
and
Servicing Agreement which amendment or supplemental agreement could reasonably
be expected to have a material adverse effect on the interests of BSFP
under
this Agreement, 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 and all Transactions hereunder shall
be
Affected Transactions.
(d)
If
the Trustee is unable to pay, or fails or admits in writing its inability
to
pay, on any Distribution Date, any Monthly Interest Distributable Amount
with
respect to the Class A Certificates or of the ultimate payment of principal
with
respect to the Class A Certificates, in either case to the extent required
pursuant to the terms of the Pooling and Servicing Agreement to be paid
to the
Class A Certificates on such Distribution Date, 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;
(e)
An
Additional Termination Event shall occur upon the notice to Certificateholders
of an Optional Termination becoming unrescindable in accordance with Article
IX
of the Pooling and Servicing Agreement (such notice, the “Optional Termination
Notice”).
With
respect to such Additional Termination Event:
(i)
Counterparty shall be the sole Affected Party and this Transaction shall
be the
sole Affected Transaction;
(ii)
notwithstanding anything to the contrary in Section 6(b)(iv) of the ISDA
Form
Master Agreement or Section 6(c)(i) of the ISDA Form Master Agreement,
the final
Distribution Date specified in the Optional Termination Notice is hereby
designated as the Early Termination Date in respect of all Affected
Transactions;
(iii)
Section 2(a)(iii)(2) of the ISDA Form Master Agreement shall not be applicable
to any Affected Transaction; notwithstanding anything to the contrary in
Section
6(c)(ii) of the ISDA Form Master Agreement, payments and deliveries under
Section 2(a)(i) of the ISDA Form Master Agreement or Section 2(e) of the
ISDA
Form Master Agreement in respect of the Terminated Transactions will be
required
to be made through and including the Early Termination Date; provided,
for the
avoidance of doubt, that any such payments or deliveries that are made
on or
prior to the Early Termination Date will not be treated as Unpaid Amounts
in
determining the amount payable in respect of an Early Termination Date;
(iv)
notwithstanding anything to the contrary in Section 6(d)(i) of the ISDA
Form
Master Agreement, (A) if, no later than 4:00 pm New York City time on the
day
that is four Business Days prior to the final Distribution Date specified
in the
Optional Termination Notice, the Trust Administrator requests the amount
of the
Estimated Swap Termination Payment, BSFP shall provide to the Trust
Administrator in writing (which may be done in electronic format) the amount
of
the Estimated Swap Termination Payment no later than 2:00 pm New York City
time
on the following Business Day and (B) if the Trust
Administrator provides written notice (which may be done in electronic
format)
to BSFP no later than two Business Days prior to the final Distribution
Date
specified in the Optional Termination Notice that all requirements of the
Optional Termination have been met, then BSFP shall, no later than one
Business
Day prior to the final Distribution Date specified in the Optional Termination
Notice, make the calculations contemplated by Section 6(e) of the ISDA
Form
Master Agreement (as amended herein) and provide to the Trust Administrator
in
writing (which may be done in electronic format) the amount payable by
either
Counterparty or BSFP in respect of the related Early Termination Date;
provided,
however, that the amount payable by Counterparty, if any, in respect of
the
related Early Termination Date shall be the lesser of (x) the amount calculated
to be due by the Counterparty pursuant to Section 6(e) of the ISDA Form
Master
Agreement and (y) the Estimated Swap Termination Payment.
(v)
notwithstanding anything to the contrary in Section 6(d)(ii) of the ISDA
Form
Master Agreement, any amount due from the Counterparty to BSFP in respect
of the
Early Termination Date will be payable on the Early Termination Date and
any
amount due from BSFP to the Counterparty in respect of the Early Termination
Date will be payable one Business Day prior to the Early Termination Date;
and
“Estimated
Swap Termination Payment” shall mean, with respect to an Early Termination Date,
an amount determined by BSFP in its sole discretion as the maximum payment
that
could be owed by Counterparty with respect to such Early Termination Date
pursuant to Section 6(e) of the ISDA Form Master Agreement taking into
account
then current market conditions.
The
Trust
Administrator
shall be
an express third party beneficiary of this Agreement as if a party hereto
to the
extent of the Trust
Administrator’s
rights
specified in paragraph 13(e) hereof.
14)
Amendment
to the ISDA Form Master Agreement.
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.
15)
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 Moody’s (and together with S&P and
DBRS, the “Swap Rating Agencies”, and such rating thresholds, “Approved Rating
Thresholds” and such a downgrade, a “First Level Downgrade”), 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 and any Notes, 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, 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 (such a downgrade, a “Second Level Downgrade”), 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 Agreement, the occurrence of either a First Level
Downgrade
or a Second Level Downgrade may be referred to as a “Rating Agency Downgrade”.
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 any Notes 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 and any Notes.
16)
Compliance with Regulation AB.
(i) BSFP
agrees and acknowledges that Mortgage Asset Securitization Transactions,
Inc.
(“Depositor”) 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, Depositor requests from BSFP the applicable financial
information described in Item 1115 of Regulation AB (such request to be
based on
a reasonable determination by Depositor or Administrator, 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
1(a)
either (i) provide to Depositor the current Swap Financial Disclosure in
an
▇▇▇▇▇-compatible format (for example, such information may be provided
in
Microsoft Word® or Microsoft Excel® format but not in .pdf format) or (ii)
provide written consent to Depositor to
incorporation by reference of such current Swap Financial Disclosure as
are
filed with the Securities and Exchange Commission in the reports of the
Trust
filed pursuant to the Exchange Act, (b) if applicable, cause its outside
accounting firm to provide its consent to filing or incorporation by reference
of such accounting firm’s report relating to their audits of such current Swap
Financial Disclosure in the Exchange Act Reports of Depositor, and (c)
provide
to Depositor any
updated Swap Financial Disclosure with respect to BSFP or any entity that
consolidates BSFP within five days of the release of any such updated Swap
Financial Disclosure; (2) 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 (3) 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
Depositor in accordance with clause (iii)(a) of paragraph 16 or causes
its
affiliate to provide Swap Financial Disclosure to Depositor in accordance
with
clause (iii)(c) of paragraph 16, it will indemnify and hold harmless Depositor,
its respective directors or officers and any person controlling Depositor,
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.
17)
Third
party Beneficiary. Depositor
shall be an express third party beneficiary of this Agreement as if a party
hereto to the extent of Depositor’s rights explicitly specified
herein.
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, DBRS
and Moody’s has been provided notice of the same and each of S&P, DBRS and
Moody’s confirms in writing (including by facsimile transmission) that it will
not downgrade, qualify, withdraw or otherwise modify its then-current rating
of
any Certificates or Notes.
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
SettlementInformation:
|
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.
San
Francisco, CA
ABA
Number: ▇▇▇-▇▇▇-▇▇▇
Account
Number: ▇▇▇▇▇▇▇▇▇▇
Account
Name: Corporate Trust Clearing
FFC:
50944101
|
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 ON BEHALF OF THE SUPPLEMENTAL INTEREST TRUST FOR THE MASTR ASSET
BACKED
SECURITIES TRUST 2006-HE3, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-HE3
| By: | |||
|
|
|||
|
Name:
Title:
|
am
SCHEDULE
I
(where
for the purposes of (i) determining Floating Amounts, all such dates subject
to
adjustment in accordance with the Following Business Day Convention and
(ii)
determining Fixed Amounts, all such dates subject to No
Adjustment.)
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
Fixed
Rate (%)
|
|
Effective
Date
|
9/25/2006
|
2,219,284.00
|
5.6000
|
|
9/25/2006
|
10/25/2006
|
2,189,736.00
|
5.6000
|
|
10/25/2006
|
11/25/2006
|
2,153,020.00
|
5.6000
|
|
11/25/2006
|
12/25/2006
|
2,109,164.00
|
5.6000
|
|
12/25/2006
|
1/25/2007
|
2,058,300.00
|
5.6000
|
|
1/25/2007
|
2/25/2007
|
2,000,588.00
|
5.6000
|
|
2/25/2007
|
3/25/2007
|
1,936,308.00
|
5.6000
|
|
3/25/2007
|
4/25/2007
|
1,865,752.00
|
5.6000
|
|
4/25/2007
|
5/25/2007
|
1,789,348.00
|
5.6000
|
|
5/25/2007
|
6/25/2007
|
1,707,576.00
|
5.6000
|
|
6/25/2007
|
7/25/2007
|
1,629,576.00
|
5.6000
|
|
7/25/2007
|
8/25/2007
|
1,555,196.00
|
5.6000
|
|
8/25/2007
|
9/25/2007
|
1,484,264.00
|
5.6000
|
|
9/25/2007
|
10/25/2007
|
1,416,616.00
|
5.6000
|
|
10/25/2007
|
11/25/2007
|
1,352,100.00
|
5.6000
|
|
11/25/2007
|
12/25/2007
|
1,290,544.00
|
5.6000
|
|
12/25/2007
|
1/25/2008
|
1,231,836.00
|
5.6000
|
|
1/25/2008
|
2/25/2008
|
1,175,844.00
|
5.6000
|
|
2/25/2008
|
3/25/2008
|
1,122,400.00
|
5.6000
|
|
3/25/2008
|
4/25/2008
|
1,071,184.00
|
5.6000
|
|
4/25/2008
|
5/25/2008
|
974,948.00
|
5.6000
|
|
5/25/2008
|
6/25/2008
|
888,456.00
|
5.6000
|
|
6/25/2008
|
7/25/2008
|
810,820.00
|
5.6000
|
|
7/25/2008
|
8/25/2008
|
740,996.00
|
5.6000
|
|
8/25/2008
|
9/25/2008
|
678,256.00
|
5.7000
|
|
9/25/2008
|
10/25/2008
|
643,232.00
|
5.7000
|
|
10/25/2008
|
11/25/2008
|
610,136.00
|
5.7000
|
|
11/25/2008
|
12/25/2008
|
578,836.00
|
5.7000
|
|
12/25/2008
|
1/25/2009
|
549,236.00
|
5.7000
|
|
1/25/2009
|
2/25/2009
|
521,232.00
|
5.7000
|
|
2/25/2009
|
3/25/2009
|
494,736.00
|
5.7000
|
|
3/25/2009
|
4/25/2009
|
469,664.00
|
5.7000
|
|
4/25/2009
|
5/25/2009
|
445,936.00
|
5.7000
|
|
5/25/2009
|
6/25/2009
|
423,476.00
|
5.7000
|
|
6/25/2009
|
7/25/2009
|
402,216.00
|
5.7000
|
|
7/25/2009
|
8/25/2009
|
382,084.00
|
5.7000
|
|
8/25/2009
|
9/25/2009
|
363,020.00
|
5.7000
|
|
9/25/2009
|
10/25/2009
|
344,968.00
|
5.7000
|
|
10/25/2009
|
11/25/2009
|
327,868.00
|
5.7000
|
|
11/25/2009
|
12/25/2009
|
311,664.00
|
5.7000
|
|
12/25/2009
|
1/25/2010
|
296,316.00
|
5.7000
|
|
1/25/2010
|
2/25/2010
|
281,768.00
|
5.7000
|
|
2/25/2010
|
3/25/2010
|
267,980.00
|
5.7000
|
|
3/25/2010
|
4/25/2010
|
254,908.00
|
5.7000
|
|
4/25/2010
|
5/25/2010
|
242,516.00
|
5.7000
|
|
5/25/2010
|
6/25/2010
|
230,768.00
|
5.7000
|
|
6/25/2010
|
7/25/2010
|
219,624.00
|
5.7000
|
|
7/25/2010
|
8/25/2010
|
209,056.00
|
5.7000
|
|
8/25/2010
|
9/25/2010
|
199,028.00
|
5.7000
|
|
9/25/2010
|
10/25/2010
|
189,512.00
|
5.7000
|
|
10/25/2010
|
11/25/2010
|
180,484.00
|
5.7000
|
|
11/25/2010
|
12/25/2010
|
171,916.00
|
5.7000
|
|
12/25/2010
|
1/25/2011
|
163,780.00
|
5.7000
|
|
1/25/2011
|
2/25/2011
|
156,056.00
|
5.7000
|
|
2/25/2011
|
3/25/2011
|
148,720.00
|
5.7000
|
|
3/25/2011
|
4/25/2011
|
141,756.00
|
5.7000
|
|
4/25/2011
|
5/25/2011
|
135,136.00
|
5.7000
|
|
5/25/2011
|
6/25/2011
|
128,852.00
|
5.7000
|
|
6/25/2011
|
7/25/2011
|
122,872.00
|
5.7000
|
|
7/25/2011
|
Termination
Date
|
117,188.00
|
5.7000
|
EXHIBIT
N
FORM
OF
SWAP ADMINISTRATION AGREEMENT
SWAP
ADMINISTRATION AGREEMENT
This
Swap
Administration Agreement, dated as of August 30, 2006 (this “Agreement”), among
▇▇▇▇▇ Fargo Bank, N.A. (“▇▇▇▇▇ Fargo”), as swap administrator (“Swap
Administrator”) and as trust administrator and supplemental interest trust
trustee (in such capacity, the “Trust Administrator” and “Supplemental Interest
Trust Trustee”) under the Pooling and Servicing Agreement, as hereinafter
defined (in such capacity, the “Trustee”), and UBS Real Estate Securities Inc
(“UBSRES”).
WHEREAS,
the Trust Administrator, on behalf of the holders of the MASTR Asset-Backed
Securities Trust 2006-HE3, Mortgage Pass-Through Certificates, is counterparty
to an Interest Rate Swap Agreement (the “Swap Agreement”), a copy of which is
attached hereto as Exhibit A, between the Supplemental Interest Trust Trustee
and Bear ▇▇▇▇▇▇▇ Financial Products Inc. (“Bear ▇▇▇▇▇▇▇”);
and
WHEREAS,
it is desirable to irrevocably appoint the Swap Administrator, and the
Swap
Administrator desires to accept such appointment, to receive and distribute
funds payable by Bear ▇▇▇▇▇▇▇ under the Swap Agreement as provided herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and
for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the parties agree as follows:
1.
Definitions.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of August 1, 2006 (the “Pooling and Servicing Agreement”), among
Mortgage Asset Securitization Transactions, Inc., as depositor, ▇▇▇▇▇ Fargo
Bank, N.A. as master servicer, trust administrator and custodian, HomEq
Servicing Corporation as servicer and the Trustee, relating to the MASTR
Asset-Backed Securities Trust 2006-HE3, Mortgage Pass-Through Certificates
(the
“Certificates”), or in the related Indenture, as the case may be, as in effect
on the date hereof.
| 2. |
Swap
Administrator.
|
(a) The
Swap
Administrator is hereby irrevocably appointed to receive all funds paid
to the
Supplemental Interest Trust Trustee by Bear ▇▇▇▇▇▇▇, or its successors
in
interest (the “Swap Provider”) under the Swap Agreement (including any Swap
Termination Payment) and the Swap Administrator hereby accepts such appointment
and hereby agrees to receive such amounts from the Supplemental Interest
Trust
Trustee and to distribute on each Distribution Date such amounts in the
following order of priority:
(i) first,
to
the Trust Administrator for deposit into the Swap Account, an amount equal
to
the sum of the following amounts remaining outstanding after distribution
of the
Net Monthly Excess Cashflow: (A) Unpaid Interest Shortfall Amounts, (B)
Net WAC
Rate Carryover Amounts; (C) an
amount necessary to maintain or restore the Overcollateralization Target
Amount;
and
(D) any
Allocated Realized Loss Amounts;
(ii) second,
to UBSRES, any amounts remaining after payment of (i) above, provided,
however,
upon the
issuance of notes by an issuer (the “Trust”), secured by all or a portion of the
Class CE Certificates and the Class P Certificates (the “NIM Notes”), UBSRES
hereby instructs the Swap Administrator to make any payments under this
clause
2(a)(ii) in the following order of priority:
(A) to
the
Indenture Trustee for the Trust, for deposit into the Note Account (each
as to
defined in the related Indenture), and until satisfaction and discharge
of the
Indenture, the Floating Amount (as defined in Annex I); and
(B) concurrently,
to the Holders of the Class CE Certificates, pro
rata
based on
the outstanding Notional Amount of each such Certificate; provided, however,
that any Swap Termination Payment received by the Swap Administrator shall
not
be payable to the Holders of the Class CE Certificates pursuant to this
clause
(ii)(B) without the prior written consent of the NIMS Insurer, if any and
the
Rating Agencies.
(b) The
Swap
Administrator agrees to hold any amounts received from the Supplemental
Interest
Trust Trustee in trust upon the terms and conditions and for the exclusive
use
and benefit of the Trustee, the Trust Administrator and the Indenture Trustee,
as applicable (in turn for the benefit of the Certificateholders, the
Noteholders and the NIMS Insurer, if any) as set forth herein. The rights,
duties and liabilities of the Swap Administrator in respect of this Agreement
shall be as follows:
(i) The
Swap
Administrator shall have the full power and authority to do all things
not
inconsistent with the provisions of this Agreement that it may deem advisable
in
order to enforce the provisions hereof. The Swap Administrator shall not
be
answerable or accountable except for its own bad faith, willful misconduct
or
negligence. The Swap Administrator shall not be required to take any action
to
exercise or enforce any of its rights or powers hereunder which, in the
opinion
of the Swap Administrator, shall be likely to involve expense or liability
to
the Swap Administrator, unless the Swap Administrator shall have received
an
agreement satisfactory to it in its sole discretion to indemnify it against
such
liability and expense.
(ii) The
Swap
Administrator shall not be liable with respect to any action taken or omitted
to
be taken by it in good faith in accordance with the direction of any party
hereto or the NIMS Insurer, if any, or otherwise as provided herein, relating
to
the time, method and place of conducting any proceeding for any remedy
available
to the Swap Administrator or exercising any right or power conferred upon
the
Swap Administrator under this Agreement.
(iii) The
Swap
Administrator may perform any duties hereunder either directly or by or
through
agents or attorneys of the Swap Administrator. The Swap Administrator shall
not
be liable for the acts or omissions of its agents or attorneys so long
as the
Swap Administrator chose such Persons with due care.
3. Swap
Administration Account.
The
Swap Administrator shall segregate and hold all funds received from the
Supplemental Interest Trust Trustee (including any Swap Termination Payment)
separate and apart from any of its own funds and general assets and shall
establish and maintain in the name of the Swap Administrator one or more
segregated accounts (such account or accounts, the “Swap Account”), held in
trust for the benefit of the Trustee, the Trust Administrator, the Indenture
Trustee and the parties to this Agreement. All amounts on deposit in the
Swap
Account shall remain uninvested unless the Swap Administrator receives
instructions to the contrary from any party hereto, with the consent of
the NIMS
Insurer, if any. The Swap Administrator hereby agrees that it holds and
shall
hold the Swap Account and all amounts deposited therein in trust for the
exclusive use and benefit of the Trustee, the Trust Administrator and the
Indenture Trustee as their interests may appear.
4.
Replacement
Swap Agreements.
The
Supplemental Interest Trust Trustee shall, at the direction of the NIMS
Insurer,
if any, or, with the consent of the NIMS Insurer, if any, at the direction
of
UBSRES, 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 UBSRES, find
a
replacement counterparty to enter into a replacement swap
agreement.
Any
Swap
Termination Payment received by the Swap Administrator from the Supplemental
Interest Trust Trustee 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 Swap
Provider.
If
the
Supplemental Interest Trust Trustee is unable to appoint a successor swap
provider within 30 days of the early termination of the Swap Agreement,
then the Supplemental Interest Trust Trustee will establish, and will deposit
any Swap Termination Payment received from the original Swap Provider into,
a
separate, non-interest bearing reserve account (a "Swap Termination Reserve
Account") and will, on each subsequent Distribution Date, withdraw from
the
amount then remaining on deposit in the Swap Termination Reserve Account
an
amount equal to the Net Swap Payment, if any, that would have been paid
to the
Supplemental Interest Trust by the original Swap Provider calculated in
accordance with the terms of the original Swap Agreement, and distribute
such
amount in accordance with this Agreement and the Pooling and Servicing
Agreement.
5.
Representations
and Warranties of ▇▇▇▇▇ Fargo.
▇▇▇▇▇
Fargo represents and warrants as follows:
(a) ▇▇▇▇▇
Fargo is duly organized and validly existing as a national banking association
under the laws of the United States and has all requisite power and authority
to
execute and deliver this Agreement, to perform its obligations as Swap
Administrator hereunder.
(b) The
execution, delivery and performance of this Agreement by ▇▇▇▇▇ Fargo as
Trust
Administrator have been duly authorized in the Pooling and Servicing
Agreement.
(c) This
Agreement has been duly executed and delivered by ▇▇▇▇▇ Fargo as Swap
Administrator, Trust Administrator and Supplemental Interest Trust Trustee
and
is enforceable against ▇▇▇▇▇ Fargo in such capacities in accordance with
its
terms, except as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law).
| 6. |
Replacement
of Swap Administrator.
|
Any
corporation, bank, trust company or association into which the Swap
Administrator may be merged or converted or with which it may be consolidated,
or any corporation, bank, trust company or association resulting from any
merger, conversion or consolidation to which the Swap Administrator shall
be a
party, or any corporation, bank, trust company or association succeeding
to all
or substantially all the corporate trust business of the Swap Administrator,
shall be the successor of the Swap Administrator hereunder, without the
execution or filing of any paper or any further act on the part of any
of the
parties hereto, except to the extent that assumption of its duties and
obligations, as such, is not effected by operation of law.
No
resignation or removal of the Swap Administrator and no appointment of
a
successor Swap Administrator shall become effective until the appointment
by
UBSRES of a successor swap administrator acceptable to the NIMS Insurer,
if any.
Any successor swap administrator shall execute such documents or instruments
necessary or appropriate to vest in and confirm to such successor swap
administrator all such rights and powers conferred by this
Agreement.
The
Swap
Administrator may resign at any time by giving written notice thereof to
the
other parties hereto with a copy to the NIMS Insurer, if any. If a successor
swap administrator shall not have accepted the appointment hereunder within
30
days after the giving by the resigning Swap Administrator of such notice
of
resignation, the resigning Swap Administrator may petition any court of
competent jurisdiction for the appointment of a successor swap administrator
acceptable to the NIMS Insurer, if any.
In
the
event of a resignation or removal of the Swap Administrator, UBSRES shall
promptly appoint a successor Swap Administrator acceptable to the NIMS
Insurer,
if any. If no such appointment has been made within 10 days of the resignation
or removal, the NIMS Insurer, if any, may appoint a successor Swap
Administrator.
| 7. |
Trust
Administrator Obligations.
|
Whenever
the Supplemental Interest Trust Trustee, as a party to the Swap Agreement,
has
the option or is requested in such capacity, whether such request is by
the
counterparty to such agreement, to take any action or to give any consent,
approval or waiver that it is entitled to take or give in such capacity,
including, without limitation, in connection with an amendment of such
agreement
or the occurrence of a default or termination event thereunder, the Supplemental
Interest Trust Trustee shall promptly notify the parties hereto and the
NIMS
Insurer, if any, of such request in such detail as is available to it and,
shall, on behalf of the parties hereto and the NIMS Insurer, if any, take
such
action in connection with the exercise and/or enforcement of any rights
and/or
remedies available to it in such capacity with respect to such request
as the
NIMS Insurer, if any, shall direct in writing; provided that if no such
direction is received prior to the date that is established for taking
such
action or giving such consent, approval or waiver (notice of which date
shall be
given by the Supplemental Interest Trust Trustee to the parties hereto
and the
NIMS Insurer, if any), the Supplemental Interest Trust Trustee may abstain
from
taking such action or giving such consent, approval or waiver.
The
Supplemental Interest Trust Trustee shall forward to the parties hereto
and the
NIMS Insurer, if any, on the Payment Date following its receipt thereof
copies
of any and all notices, statements, reports and/or other material communications
and information (collectively, the “Swap Reports”) that it receives in
connection with the Swap Agreement or from the counterparty
thereto.
| 8. |
Miscellaneous.
|
(a) This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
(b) Any
action or proceeding against any of the parties hereto relating in any
way to
this Agreement may be brought and enforced in the courts of the State of
New
York sitting in the borough of Manhattan or of the United States District
Court
for the Southern District of New York and the Swap Administrator irrevocably
submits to the jurisdiction of each such court in respect of any such action
or
proceeding. The Swap Administrator waives, to the fullest extent permitted
by
law, any right to remove any such action or proceeding by reason of improper
venue or inconvenient forum.
(c) This
Agreement may be amended, supplemented or modified in writing by the parties
hereto, but only with the consent of the NIMS Insurer, if any.
(d) This
Agreement may not be assigned or transferred without the prior written
consent
of the NIMS Insurer, if any; provided, however, the parties hereto acknowledge
and agree to the assignment of the rights of UBSRES as provided under this
Agreement pursuant to the Sale Agreement, the Trust Agreement and the
Indenture.
(e) This
Agreement may be executed by one or more of the parties to this Agreement
on any
number of separate counterparts (including by facsimile transmission),
and all
such counterparts taken together shall be deemed to constitute one and
the same
instrument.
(f) Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
(g) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
(h) The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
(i) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
9. Third-Party
Beneficiary.
Each of
the Note Insurer, the Backup Note Insurer and the Indenture Trustee, if
any,
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.
10. Swap
Administrator and Trust Administrator Rights.
The
Swap Administrator shall be entitled to the same rights, protections and
indemnities afforded to the Trust Administrator under the Pooling and Servicing
Agreement and the Indenture Trustee under the Indenture, in each case,
as if
specifically set forth herein with respect to the Swap
Administrator.
The
Trust
Administrator and the Supplemental Interest Trust Trustee shall be entitled
to
the same rights, protections and indemnities afforded to the Trust Administrator
under the Pooling and Servicing Agreement as if specifically set forth
herein
with respect to the Trust Administrator.
11. Limited
Recourse.
It is
expressly understood and agreed by the parties hereto that this Agreement
is
executed and delivered by the Trust Administrator, not in its individual
capacity but solely as trust administrator under the Pooling and Servicing
Agreement. Notwithstanding any other provisions of this Agreement, the
obligations of the Trust Administrator under this Agreement are non-recourse
to
the Trust Administrator, its assets and its property, and shall be payable
solely from the assets of the Trust Fund, and following realization of
such
assets, any claims of any party hereto shall be extinguished and shall
not
thereafter be reinstated. No recourse shall be had against any principal,
director, officer, employee, beneficiary, shareholder, partner, member,
trustee,
agent or affiliate of the Trust Administrator or any person owning, directly
or
indirectly, any legal or beneficial interest in the Trust Administrator,
or any
successors or assigns of any of the foregoing (the “Exculpated Parties”) for the
payment of any amount payable under this Agreement. The parties hereto
shall not
enforce the liability and obligations of the Trust Administrator to perform
and
observe the obligations contained in this Agreement by any action or proceeding
wherein a money judgment establishing any personal liability shall be sought
against the Trust Administrator, subject to the following sentence, or
the
Exculpated Parties. The agreements in this paragraph shall survive termination
of this Agreement and the performance of all obligations hereunder.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Swap Administrator
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
|
▇▇▇▇▇
FARGO BANK, N.A.
not
in its individual capacity but solely as Trust
Administrator
and Supplemental Interest Trust
Trustee
under the Pooling and Servicing Agreement
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
|
UBS
REAL ESTATE SECURITIES INC.
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
|
|
||
| |
|
|
| By: | ||
|
|
||
|
Name:
Title:
|
||
EXHIBIT
A
SWAP
AGREEMENT
ANNEX
I
The
amounts paid under clause 2(a)(ii) of the Swap Administration Agreement
shall be
calculated as follows:
|
Floating
Amount:
|
|
|
Floating
Rate Payer:
|
Bear
▇▇▇▇▇▇▇
|
|
Cap
Rate:
|
15.00%
|
|
Floating
Amount
|
To
be determined in accordance with the following formula:
The
product of: (i) 250; (ii) the Cap Rate, (iii) the Notional Amount;
and
(iv) the Floating Rate Day Count Fraction;
provided,
however,
the Swap Administrator will only be obligated to pay the Floating
Amount
up to the amount remaining after payments are made under clause
2(a)(i) of
the Swap Administration Agreement.
The
Floating Amount shall be paid to the Indenture Trustee for payment
in
accordance with Section 2.09(e) of the Indenture.
|
|
Floating
Rate Day Count Fraction:
|
Actual/360.
|
|
Notional
Amount:
|
The
amount set forth for such period in the Amortization Schedule
A.
|
SCHEDULE
A TO ANNEX I
INTEREST
RATE SWAP SCHEDULE
|
Distribution
Date
|
Base
Calculation Amount
|
|
|
September
25, 2006
|
$2,219,284
|
|
|
October
25, 2006
|
$2,189,736
|
|
|
November
25, 2006
|
$2,153,020
|
|
|
December
25, 2006
|
$2,109,164
|
|
|
January
25, 2007
|
$2,058,300
|
|
|
February
25, 2007
|
$2,000,588
|
|
|
March
25, 2007
|
$1,936,308
|
|
|
April
25, 2007
|
$1,865,752
|
|
|
May
25, 2007
|
$1,789,348
|
|
|
June
25, 2007
|
$1,707,576
|
|
|
July
25, 2007
|
$1,629,576
|
|
|
August
25, 2007
|
$1,555,196
|
|
|
September
25, 2007
|
$1,484,264
|
|
|
October
25, 2007
|
$1,416,616
|
|
|
November
25, 2007
|
$1,352,100
|
|
|
December
25, 2007
|
$1,290,544
|
|
|
January
25, 2008
|
$1,231,836
|
|
|
February
25, 2008
|
$1,175,844
|
|
|
March
25, 2008
|
$1,122,400
|
|
|
April
25, 2008
|
$1,071,184
|
|
|
May
25, 2008
|
$974,948
|
|
|
June
25, 2008
|
$888,456
|
|
|
July
25, 2008
|
$810,820
|
|
|
August
25, 2008
|
$740,996
|
|
|
September
25, 2008
|
$678,256
|
|
|
October
25, 2008
|
$643,232
|
|
|
November
25, 2008
|
$610,136
|
|
|
December
25, 2008
|
$578,836
|
|
|
January
25, 2009
|
$549,236
|
|
|
February
25, 2009
|
$521,232
|
|
|
March
25, 2009
|
$494,736
|
|
|
April
25, 2009
|
$469,664
|
|
|
May
25, 2009
|
$445,936
|
|
|
June
25, 2009
|
$423,476
|
|
|
July
25, 2009
|
$402,216
|
|
|
August
25, 2009
|
$382,084
|
|
|
September
25, 2009
|
$363,020
|
|
|
October
25, 2009
|
$344,968
|
|
|
November
25, 2009
|
$327,868
|
|
|
December
25, 2009
|
$311,664
|
|
|
January
25, 2010
|
$296,316
|
|
|
February
25, 2010
|
$281,768
|
|
|
March
25, 2010
|
$267,980
|
|
|
April
25, 2010
|
$254,908
|
|
|
May
25, 2010
|
$242,516
|
|
|
June
25, 2010
|
$230,768
|
|
|
July
25, 2010
|
$219,624
|
|
|
August
25, 2010
|
$209,056
|
|
|
September
25, 2010
|
$199,028
|
|
|
October
25, 2010
|
$189,512
|
|
|
November
25, 2010
|
$180,484
|
|
|
December
25, 2010
|
$171,916
|
|
|
January
25, 2011
|
$163,780
|
|
|
February
25, 2011
|
$156,056
|
|
|
March
25, 2011
|
$148,720
|
|
|
April
25, 2011
|
$141,756
|
|
|
May
25, 2011
|
$135,136
|
|
|
June
25, 2011
|
$128,852
|
|
|
July
25, 2011
|
$122,872
|
|
|
August
25, 2011
|
$117,188
|
EXHIBIT
O
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 Trustee, or 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
Trustee
-
fiduciary of the transaction
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
|
Servicer
|
▇▇▇▇▇
Fargo
|
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
|
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
|
||
|
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
|
||
|
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
|
||
|
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
|
||
|
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
P
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity or entities indicated as the Responsible
Party shall be primarily responsible for reporting the information to the
Trust
Administrator and the Depositor pursuant to Section 4.06(a)(iv).
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 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:
Trust
Administrator, Servicer, Depositor
|
|||
|
(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, Master Servicer and Depositor as to the Issuing
entity
and (iii) the Depositor as to the Sponsor, any 1110(b) originator
and any
1100(d)(i) 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
|
Trustee,
Trust Administrator
|
|||
|
6
|
Significant
Obligors of Pool Assets
|
|||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
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
Item.
|
||||
|
7
|
Significant
Enhancement Provider Information
|
|||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Requesting
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
Requesting
required financial information or effecting incorporation by
reference
|
Depositor
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,
Sevicer, Master Servicer, Custodian, Trust
Administrator
|
|||
|
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,
Sevicer, Master Servicer, Custodian, Trust
Administrator
|
|||
|
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,
Sevicer, Master Servicer, Custodian, Trust Administrator, Trustee
(as to
itself)
|
|||
|
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 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. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Depositor
|
|||
|
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.
Requesting
Regulation AB disclosure about any new enhancement or effecting
incorporation by reference
|
Trust
Administrator
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 Regulation 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
Requesting
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
Requesting
required financial information or effecting incorporation by
reference
|
Depositor
Trust
Administrator
|
|||
|
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
|
Seller
Depositor
Trustee
Master
Servicer
Custodian
|
|||
|
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
Credit
Enhancer/Support Provider, if any
Significant
Obligor, if any
|
(i)
All parties to the Pooling and Servicing Agreement (as to themselves),
(ii) the Depositor as to the Sponsor, Originator, Significant Obligor,
Credit Enhancer/Support Provider and (iii) the Depositor as to
the Issuing
entity
|
|||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Master
Servicer
Trust
Administrator
Custodian
Servicer
|
|||
|
Item
1123 -Servicer Compliance Statement
|
Master
Servicer
Servicer
|
|||
EXHIBIT
Q
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
Mortgage
Asset Securitization Transactions, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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
August 1, 2006, among Mortgage Asset Securitization Transactions, Inc. as
Depositor, ▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer, Trust Administrator
and
Custodian, ▇▇▇▇▇ Fargo Bank, N.A. 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
R-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 ($)
|
| 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
|
| Standard File Codes - Delinquency Reporting, Continued |
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
|
| Standard File Codes - Delinquency Reporting, Continued |
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
R-2
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
R-3
FORM
OF REALIZED LOSS REPORT
Exhibit
: 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.
2.
3. 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.
4.
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
[AVAILABLE
UPON REQUEST]
SCHEDULE
2
PREPAYMENT
CHARGE SCHEDULE
[AVAILABLE
UPON REQUEST]