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MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.,
Depositor
UBS WARBURG REAL ESTATE SECURITIES INC.,
Transferor
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
Master Servicer
and
JPMORGAN CHASE BANK,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2002
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MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
MORTGAGE PASS-THROUGH CERTIFICATES, Series 2002-1
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.....................................................
Section 1.02. Certain Calculations............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans....................................
Section 2.02. Acceptance by Trustee of the Mortgage Loans.....................
Section 2.03. Remedies for Breaches of Representations and Warranties.........
Section 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans.................................................
Section 2.05. [Reserved.].....................................................
Section 2.06. Execution and Delivery of Certificates..........................
Section 2.07. REMIC Matters...................................................
Section 2.08. Covenants of the Master Servicer................................
Section 2.09. Representations and Warranties of the Master Servicer...........
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicing of Mortgage Loans..............................
Section 3.02. Monitoring of Servicers.........................................
Section 3.03. [Reserved]......................................................
Section 3.04. Rights of the Depositor and the Trustee in Respect of the
Master Servicer................................................
Section 3.05. Trustee to Act as Master Servicer...............................
Section 3.06. Protected Accounts..............................................
Section 3.07. Collection of Mortgage Loan Payments; Collection Account;
Distribution Account...........................................
Section 3.08. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.......................................................
Section 3.09. Access to Certain Documentation and Information Regarding the
Mortgage Loans.................................................
Section 3.10. Permitted Withdrawals from the Collection Account and
Distribution Account...........................................
Section 3.11. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.............................................
Section 3.12. Presentment of Claims and Collection of Proceeds................
Section 3.13. Maintenance of the Primary Insurance Policies...................
Section 3.14. Realization Upon Defaulted Mortgage Loans.......................
Section 3.15. REO Property....................................................
Section 3.16. Due-on-Sale Clauses; Assumption Agreements......................
Section 3.17. Trustee to Cooperate; Release of Mortgage Files.................
Section 3.18. Documents Records and Funds in Possession of Master Servicer
to Be Held for the Trustee.....................................
Section 3.19. Master Servicing Compensation...................................
Section 3.20. Access to Certain Documentation.................................
Section 3.21. Annual Statement as to Compliance...............................
Section 3.22. Annual Independent Public Accountants' Servicing Statement;
Financial Statements...........................................
Section 3.23. Errors and Omissions Insurance; Fidelity Bonds..................
ARTICLE IV
DISTRIBUTIONS AND SERVICING ADVANCES
Section 4.01. Advances........................................................
Section 4.02. Priorities of Distribution......................................
Section 4.03. Allocation of Realized Losses...................................
Section 4.04. Monthly Statements to Certificateholders........................
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates................................................
Section 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates................................................
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...............
Section 5.04. Persons Deemed Owners...........................................
Section 5.05. Access to List of Certificateholders' Names and Addresses.......
Section 5.06. Maintenance of Office or Agency.................................
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master
Servicer.......................................................
Section 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.......................................................
Section 6.03. Limitation on Liability of the Depositor, the Transferor, the
Master Servicer and Others.....................................
Section 6.04. Limitation on Resignation of Master Servicer....................
Section 6.05. Sale and Assignment of Master Servicing Rights..................
ARTICLE VII
DEFAULT
Section 7.01. Events of Default...............................................
Section 7.02. Trustee to Act; Appointment of Successor........................
Section 7.03. Notification to Certificateholders..............................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE MASTER SERVICER
Section 8.01. Duties of Trustee...............................................
Section 8.02. Certain Matters Affecting the Trustee...........................
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans...........
Section 8.04. Trustee May Own Certificates....................................
Section 8.05. Trustee's Fees and Expenses.....................................
Section 8.06. Eligibility Requirements for Trustee............................
Section 8.07. Resignation and Removal of Trustee..............................
Section 8.08. Successor Trustee...............................................
Section 8.09. Merger or Consolidation of Trustee..............................
Section 8.10. Appointment of Co-Trustee or Separate Trustee...................
Section 8.11. Tax Matters.....................................................
Section 8.12. Periodic Filings................................................
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of All Mortgage
Loans..........................................................
Section 9.02. Final Distribution on the Certificates..........................
Section 9.03. Additional Termination Requirements.............................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment......................................................
Section 10.02. Recordation of Agreement; Counterparts.........................
Section 10.03. Governing Law..................................................
Section 10.04. Intention of Parties...........................................
Section 10.05. Notices........................................................
Section 10.06. Severability of Provisions.....................................
Section 10.07. Assignment.....................................................
Section 10.08. Limitation on Rights of Certificateholders.....................
Section 10.09. Inspection and Audit Rights....................................
Section 10.10. Certificates Nonassessable and Fully Paid......................
SCHEDULES
Schedule I: Mortgage Loan Schedule..........................................
Schedule II: Representations and Warranties as to the Mortgage Loans.........
EXHIBITS
Exhibit A-1: 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-R: Form of Class A-R Certificate..............................
Exhibit A-LR: Form of Class A-LR Certificate.............................
Exhibit B: Form of ▇-▇, ▇-▇ or B-3 Certificate........................
Exhibit C: Form of Private Certificate................................
Exhibit D: (Reserved).................................................
Exhibit E: Form of Reverse of Certificates............................
Exhibit F: Form of Initial Certification of Master Servicer...........
Exhibit G: Form of Final Certification of Master Servicer.............
Exhibit H: Transfer Affidavit.........................................
Exhibit I: Form of Transferor Certificate.............................
Exhibit J: Form of Investment Letter (Non-Rule 144A)..................
Exhibit K: Form of Rule 144A Letter...................................
THIS POOLING AND SERVICING AGREEMENT, dated as of February 1, 2002,
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., a Delaware corporation,
as depositor (the "Depositor"), UBS WARBURG REAL ESTATE SECURITIES INC., a
Delaware corporation, as transferor (the "Transferor"), ▇▇▇▇▇ FARGO BANK
MINNESOTA, N.A., a national banking association, as master servicer (the "Master
Servicer"), and JPMorgan Chase Bank, a New York banking corporation, as trustee
(the "Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. The Trust Fund is being conveyed
to the Trustee to create a trust for the benefit of the Certificateholders. The
Trust Fund for federal income tax purposes will consist of two REMICs. The
Lower-Tier REMIC will consist of all of the assets constituting the Trust Fund
(other than the Lower-Tier REMIC Regular Interests and proceeds thereof in the
Distribution Account) and will be evidenced by the Lower-Tier REMIC Regular
Interests (which will be uncertificated and will represent the "regular
interests" in the Lower-Tier REMIC) and the Class A-LR Certificate as the single
"residual interest" in the Lower-Tier REMIC. The Trustee will hold the
Lower-Tier REMIC Regular Interests. The Upper-Tier REMIC will consist of the
Lower-Tier REMIC Regular Interests and proceeds thereof in the Distribution
Account and will be evidenced by the Regular Certificates (which will represent
the "regular interests" in the Upper-Tier REMIC) and the Class A-R Certificate
as the single "residual interest" of the Upper-Tier REMIC. The "latest possible
maturity date" for federal income tax purposes of all interests created hereby
will be the Latest Possible Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
INITIAL CLASS
CERTIFICATE INTEGRAL
BALANCE OR INITIAL MULTIPLES
CLASS NOTIONAL PASS-THROUGH MINIMUM IN EXCESS OF
AMOUNT RATE DENOMINATION MINIMUM
-------------- ------------ ------------ ------------
Class A-1 $101,741,000 5.9020% (1) $ 25,000 $1
Class A-2 $ 50,000,000 5.3000% (2) $ 25,000 $1
Class A-3 $ 50,000,000 (3) 0.6020% (4) $25,000,000 (5) $1
Class A-R $ 50 5.9020% (1) $ 50 N/A
Class A-LR $ 50 5.9020% (1) $ 50 N/A
Class B-1 $ 1,564,000 5.9020% (1) $ 25,000 $1
Class B-2 $ 1,173,000 5.9020% (1) $ 25,000 $1
Class B-3 $ 1,017,000 5.9020% (1) $ 25,000 $1
Class B-4 $ 313,000 5.9020% (1) $ 25,000 $1
Class B-5 $ 156,000 5.9020% (1) $ 25,000 $1
Class B-6 $ 470,426.68 5.9020% (1) $ 25,000 $1
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(1) The Pass-Through Rates for the Class A-1, Class A-R, Class A-LR, Class
B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates
for each Distribution Date occurring after the first Distribution Date
will equal the weighted average of the Net Mortgage Rates on the Mortgage
Loans, weighted on the basis of their respective Scheduled Principal
Balances, as of the first day of the related Interest Accrual Period
(after taking into account scheduled payments of principal on such date).
(2) For each Distribution Date occurring after the first Distribution Date,
interest will accrue on the Class A-2 Certificates at a per annum rate
equal to the lesser of (i) the weighted average of the Net Mortgage Rates
on the Mortgage Loans, weighted on the basis of their respective Scheduled
Principal Balances, as of the first day of the related Interest Accrual
Period (after taking into account scheduled payments of principal on such
date), and (ii) 5.3000%.
(3) The Class A-3 Certificates are interest-only Certificates, will not be
entitled to distributions in respect of principal and will bear interest
on their Notional Amount (initially $50,000,000).
(4) For each Distribution Date occurring after the first Distribution Date,
interest will accrue on the Class A-3 Certificates at a per annum rate
equal to (i) the weighted average of the Net Mortgage Rates on the
Mortgage Loans, weighted on the basis of their respective Scheduled
Principal Balances, as of the first day of the related Interest Accrual
Period (after taking into account scheduled payments of principal on such
date), minus (ii) the Pass-Through Rate for the Class A-2 Certificates for
such Distribution Date.
(5) Minimum Denomination is based on 50% of the Notional Amount of such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates...... All Classes of Offered Certificates other than the
Physical Certificates.
Class A Certificates......... The Class A-1, Class A-2, Class A-3, Class A-R and
Class A-LR Certificates.
Class B Certificates......... The Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
ERISA-Restricted
Certificates............... The Residual Certificates and the Private
Certificates.
Junior Certificates.......... The Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
Notional Amount
Certificates............... The Class A-3 Certificates.
Offered Certificates......... All Classes of Certificates other than the Private
Certificates.
Physical Certificates........ The Private Certificates and the Residual
Certificates.
Private Certificates......... The Class B-4, Class B-5 and Class B-6
Certificates.
Rating Agencies.............. ▇▇▇▇▇'▇ and S&P.
Regular Certificates......... All Classes of Certificates, other than the
Residual Certificates.
Residual Certificates........ The Class A-R Certificates.
Scheduled Principal
Classes.................... None.
Senior Certificates.......... The Class A-1, Class A-2, Class A-3, Class A-R and
Class A-LR Certificates.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accrued Certificate Interest: With respect to any Distribution Date
and interest bearing Class, the sum of (i) one month's interest accrued during
the related Interest Accrual Period at the Pass-Through Rate for such Class on
the related Class Principal Balance or Notional Amount, as applicable, subject
to reduction as provided in Section 4.02(c) and (ii) any Class Unpaid Interest
Amounts for such Class.
Adjustment Amount: With respect to each anniversary of the Cut-off
Date, the amount, if any, by which the Special Hazard Loss Coverage Amount
(without giving effect to the deduction of the Adjustment Amount for such
anniversary) exceeds the greatest of (x) the product of 1% and the outstanding
principal balance of all the Mortgage Loans on the Distribution Date immediately
preceding such anniversary, (y) the outstanding principal balance of Mortgage
Loans secured by Mortgaged Properties in the highest California zip code
concentration on the Distribution Date immediately preceding such anniversary,
and (z) twice the outstanding principal balance of the Loan which has the
largest outstanding principal balance on the Distribution Date immediately
preceding such anniversary.
Adjustment Date: As to each Mortgage Loan, the date on which the
Mortgage Rate is adjusted in accordance with the terms of the related Mortgage
Note and Mortgage.
Advance: An advance of principal or interest required to be made by
the applicable Servicer pursuant to the related Sale and Servicing Agreement or
required to be made by the Master Servicer with respect to any Distribution Date
pursuant to Section 4.01, the amount of any such payment being equal to the
aggregate of payments of principal and interest (net of the Servicing Fee and
net of any net income in the case of any REO Property) on the Mortgage Loans
that were due on the related Due Date and not received as of the close of
business on the related Determination Date, less the aggregate amount of any
such delinquent payments that the Master Servicer or the applicable Servicer, as
the case may be, has determined would constitute a Nonrecoverable Advance if
advanced.
Affiliate: When used with reference to a specified Person that (i)
directly or indirectly controls or is controlled by or is under common control
with the specified Person, (ii) is an officer of, partner in or trustee of, or
serves in a similar capacity with respect to, the specified person or of which
the specified Person is an officer, partner or trustee, or with respect to which
the specified Person serves in a similar capacity, or (iii) directly or
indirectly is the beneficial owner of 10% or more of any class of equity
securities of the specified Person or of which the specified Person is directly
or indirectly the owner of 10% or more of any class of equity securities.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Allocable Share: As to any Distribution Date, the Junior Optimal
Principal Amount and any Class of Junior Certificates, the portion of the Junior
Optimal Principal Amount allocable to such Class, equal to the product of the
Junior Optimal Principal Amount on such Distribution Date and a fraction, the
numerator of which is the related Class Principal Balance thereof and the
denominator of which is the aggregate of the Class Principal Balances of the
Junior Certificates.
Amount Available for Senior Principal: As to any Distribution Date,
Available Funds for such Distribution Date reduced by the aggregate amount
distributable on such Distribution Date in respect of interest on the Senior
Certificates pursuant to Section 4.02(a)(ii).
Amount Held for Future Distribution: As to any Distribution Date,
the aggregate amount held in the Collection Account at the close of business on
the related Determination Date on account of (i) Principal Prepayments received
after the related Prepayment Period, and Liquidation Proceeds and Insurance
Proceeds received in the month of such Distribution Date and (ii) all Scheduled
Payments due after the related Due Date.
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the
time of the origination of such Mortgage Loan; and (ii) with respect to a
Refinancing Mortgage Loan, the value of the Mortgaged Property based upon the
appraisal made-at the time of the origination of such Refinancing Mortgage Loan
as modified by an updated appraisal.
Assignment: An individual assignment of a Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
of record the sale or transfer of the Mortgage Loan.
Assignment Agreements: Each of (i) the National City Assignment
Agreement and (ii) the Countrywide Assignment Agreement.
Available Funds: As to any Distribution Date, the sum of (a) the
aggregate amount held in the Collection Account at the close of business on the
related Determination Date net of the Amount Held for Future Distribution and
net of amounts permitted to be withdrawn from the Collection Account pursuant to
clauses (i)-(ix), inclusive, of Section 3.10(a) and amounts permitted to be
withdrawn from the Distribution Account pursuant to clauses (i)-(iv) inclusive
of Section 3.10(b), (b) the amount of the related Advance and (c) in connection
with Defective Mortgage Loans, as applicable, the aggregate of the Purchase
Prices and Substitution Adjustment Amounts deposited on the related Distribution
Account Deposit Date.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction as reported by the applicable Servicer to
the Master Servicer; provided, however, that a Bankruptcy Loss shall not be
deemed a Bankruptcy Loss hereunder so long as the Master Servicer has notified
the Trustee in writing that either the Master Servicer or the applicable
Servicer is diligently pursuing any remedies that may exist in connection with
the related Mortgage Loan and either (A) the related Mortgage Loan is not in
default with regard to payments due thereunder or (B) delinquent payments of
principal and interest under the related Mortgage Loan and any related escrow
payments in respect of such Mortgage Loan are being advanced on a current basis
by either the Master Servicer or the applicable Servicer, in either case without
giving effect to any Debt Service Reduction or Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in a
downgrading of the then current ratings assigned to the Classes of Certificates
rated by it.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York,
Minnesota, Maryland, or the cities in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Certificate: Any one of the Certificates executed and authenticated
by the Trustee in substantially the forms attached hereto as exhibits.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: With respect to any Certificate at
any date, the maximum dollar amount of principal to which the Holder thereof is
then entitled hereunder, such amount being equal to the Denomination thereof
minus the sum of (i) all distributions of principal previously made with respect
thereto and (ii) all Realized Losses allocated thereto and, in the case of any
Junior Certificates, all other reductions in Certificate Principal Balance
previously allocated thereto pursuant to Section 4.03.
Certificate Register: The register maintained pursuant to Section
5.02 hereof.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Master Servicer or the Depositor or any affiliate of the Master
Servicer or the Depositor, as applicable, shall be deemed not to be Outstanding
and the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; provided, however, that if any such
Person (including the Master Servicer or the Depositor) owns 100% of the
Percentage Interests evidenced by a Class of Certificates, such Certificates
shall be deemed to be Outstanding for purposes of any provision hereof that
requires the consent of the Holders of Certificates of a particular Class as a
condition to the taking of any action hereunder. The Trustee is entitled to rely
conclusively on a certification of the Master Servicer or the Depositor or any
affiliate of the Master Servicer or the Depositor, as applicable, in determining
which Certificates are registered in the name of an affiliate of the Master
Servicer or the Depositor.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement and each Lower-Tier REMIC Regular Interest.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Accrued
Certificate Interest for such Class exceeds the amount of interest actually
distributed on such Class on such Distribution Date pursuant to such clause (i).
Class Prepayment Distribution Trigger: With respect to any Class of
the Class B Certificates and any Distribution Date, if either (i) the Fractional
Interest for such Class with respect to that Distribution Date, equals or
exceeds such Class's Fractional Interest calculated as of the Closing Date or
(ii) such Class of Class B Certificates is the only Class of Class B
Certificates then outstanding.
Class Principal Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Principal Balances of
all Certificates of such Class as of such date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to clause
(ii) of the definition of Accrued Certificate Interest.
Closing Date: February 28, 2002.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The separate Eligible Account or Accounts
created and maintained by the Master Servicer pursuant to Section 3.07 with a
depository institution in the name of the Master Servicer for the benefit of the
Trustee on behalf of Certificateholders and designated "JPMorgan Chase Bank in
trust for the registered holders of MASTR Adjustable Rate Mortgages Trust
2002-1, Mortgage Pass-Through Certificates Series 2002-1."
Compensating Interest: With respect to any Distribution Date, an
amount equal to the lesser of:
(1) with respect to any Servicer, the aggregate of the Prepayment
Interest Shortfalls on Mortgage Loans serviced by such Servicer for the
related Distribution Date and
(2) with respect to any Servicer, the aggregate Servicing Fees due
to the applicable Servicer for such Distribution Date.
If a Servicer fails to make its required payment of Compensating Interest on any
Distribution Date, the Master Servicer will be required to make such payment of
Compensating Interest to the same extent that such Servicer was required to make
such payment of Compensating Interest.
Corporate Trust Office: The designated office of the Trustee at
which at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Institutional Trust Services/Structured Finance--MASTR
Adjustable Rate Mortgages Trust 2002-1, which is the address to which
appropriate notices to and correspondence with the Trustee should be directed.
Corresponding Classes of Certificates and Corresponding Lower-Tier
REMIC Regular Interests: With respect to each Lower-Tier REMIC Regular Interest
and Class of Certificates appearing opposite each other as follows:
------------------------------------------------------------------------------
Corresponding Lower-Tier REMIC Corresponding Class of Certificates
------------------------------ -----------------------------------
Regular Interest
----------------
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Class A-L1 Interest Class A-1 Certificates
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Class A-L2 Interest Class A-2 Certificates and Class A-3
Certificates
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Class A-LUR Interest Class A-R Certificate
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Class B-L1 Interest Class B-1 Certificates
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Class B-L2 Interest Class B-2 Certificates
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Class B-L3 Interest Class B-3 Certificates
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Class B-L4 Interest Class B-4 Certificates
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Class B-L5 Interest Class B-5 Certificates
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Class B-L6 Interest Class B-6 Certificates
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Countrywide: Countrywide Home Loans, Inc. and its successors and
assigns, in its capacity as seller of the Countrywide Mortgage Loans.
Countrywide Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of February 28, 2002, among Countrywide, the
Depositor and the Transferor.
Countrywide Mortgage Loans: The Mortgage Loans transferred to the
Transferor pursuant to the Countrywide Sale and Servicing Agreement and
subsequently transferred by the Transferor to the Depositor pursuant to the
Countrywide Assignment Agreement and the Mortgage Loan Purchase Agreement.
Countrywide Sale and Servicing Agreement: The Mortgage Loan Purchase
and Sale Agreement, dated as of February 1, 1997, between the Transferor and
Countrywide.
Countrywide Servicing: Countrywide Home Loans Servicing LP and its
successors and assigns, in its capacity as servicer of the Countrywide Mortgage
Loans.
Cross-Over Date: The Distribution Date on which the Class Principal
Balances of the Junior Certificates have been reduced to zero.
Cut-off Date: February 1, 2002.
Cut-off Date Pool Balance: $ 156,434,526.68.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Scheduled Principal Balance thereof as of the close of business on the Cut-off
Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any Scheduled Payment
that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: As defined in Section 2.03 hereof.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Principal Balance of this
Certificate" or the "Initial Notional Amount of this Certificate" or, if neither
of the foregoing, the Percentage Interest appearing on the face thereof.
Depositor: Mortgage Asset Securitization Transactions, Inc., a
Delaware corporation, or its successor in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(3) of the Uniform Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of
each month, or if such 18th day is not a Business Day, the Business Day
immediately succeeding the 18th day.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.07 in the name of the Trustee
for the benefit of the Certificateholders and designated "JPMorgan Chase Bank in
trust for registered holders of MASTR Adjustable Rate Mortgages Trust 2002-1
Mortgage Pass-Through Certificates, Series 2002-1." Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, one
Business Day prior to such Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business Day,
the next succeeding Business Day, commencing in March 2002.
Due Date: With respect to any Distribution Date, the first day of
the month in which the related Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company (the short-term unsecured debt obligations of which (or, in the
case of a depository institution or trust company that is the principal
subsidiary of a holding company, the debt obligations of such holding company)
have the highest short-term ratings of each Rating Agency at the time any
amounts are held on deposit therein) in which such accounts are insured by the
FDIC (to the limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of Counsel
delivered to the Trustee and to each Rating Agency, the Certificateholders have
a claim with respect to the funds in such account or a perfected first priority
security interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
(a) the trust department of a federal or state chartered depository institution
or (b) a trust company, acting in its fiduciary capacity or (iv) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
Eligible Substitute Mortgage Loan: A Mortgage Loan (a) substituted
by the Transferor for a Deleted Mortgage Loan which must, on the date of such
substitution, (i) have a Scheduled Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution (or,
in the case of a substitution of more than one mortgage loan for a Deleted
Mortgage Loan, an aggregate principal balance), not in excess of, and not more
than 10% less than the Scheduled Principal Balance of the Deleted Mortgage Loan;
(ii) be accruing interest at a rate no lower than, and not more than 1% per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value
Ratio no higher than that of the Deleted Mortgage Loan; (iv) have a remaining
term to maturity no greater than (and not more than one year less than that of)
the Deleted Mortgage Loan; (v) comply with each representation and warranty set
forth in (1) Section 7.02 of the Countrywide Sale and Servicing Agreement if the
Deleted Mortgage Loan is a Countrywide Mortgage Loan or (2) Section 3.02 of the
National City Sale and Servicing Agreement if the Deleted Mortgage Loan is a
National City Mortgage Loan; (vi) be the same credit grade category as the
Deleted Mortgage Loan; and (vii) have the same prepayment penalty term or (b)
substituted by the applicable Originator for a Deleted Mortgage Loan pursuant to
the terms of the related Sale and Servicing Agreement.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.08(a) hereof.
Excess Loss: The amount of any (i) Fraud Loss realized after the
Fraud Loss Coverage Termination Date, (ii) Special Hazard Loss realized after
the Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss realized
after the Bankruptcy Coverage Termination Date.
Excess Proceeds: With respect to any Liquidated Loan, the amount, if
any, by which the sum of any Liquidation Proceeds of such Mortgage Loan received
in the calendar month in which such Mortgage Loan became a Liquidated Loan,
exceeds (i) the Scheduled Principal Balance of such Liquidated Loan as of the
Due Date in the month in which such Mortgage Loan became a Liquidated Loan plus
(ii) accrued interest at the Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date applicable to the Distribution Date immediately following the
calendar month during which such liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
Fitch: Fitch Ratings, or any successor thereto. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: MBS Monitoring MASTR Adjustable Rate
Mortgages Trust 2002-1.
Formula Principal Amount: As to any Distribution Date, the sum of
(a) the principal portion of each Scheduled Payment (without giving effect,
prior to the Bankruptcy Coverage Termination Date, to any reductions thereof
caused by any Debt Service Reductions or Deficient Valuations) due on each
Mortgage Loan on the related Due Date, (b) the Scheduled Principal Balance of
each Mortgage Loan that was repurchased by an Originator pursuant to the related
Sale and Servicing Agreement or the Transferor pursuant to this Agreement as of
such Distribution Date, (c) any Insurance Proceeds or Liquidation Proceeds
allocable to recoveries of principal of Mortgage Loans that are not yet
Liquidated Loans received during the calendar month preceding the month of such
Distribution Date, (d) with respect to each Mortgage Loan that became a
Liquidated Loan during the calendar month preceding the month of such
Distribution Date, the amount of the Liquidation Proceeds allocable to principal
received during the calendar month preceding the month of such Distribution Date
with respect to such Mortgage Loan and (e) the sum of (i) all Principal
Prepayments in full received during the related Prepayment Period and (ii) all
partial Principal Prepayments applied during the related Prepayment Period.
Fractional Interest: With respect to any Distribution Date and each
Class of Class B Certificates, the fraction (expressed as a percentage), the
numerator of which is the aggregate Certificate Principal Balance of such Class
and each Class subordinate thereto, if any, and the denominator of which is the
Pool Scheduled Principal Balance with respect to that Distribution Date.
Fraud Loan: A Liquidated Loan as to which a Fraud Loss has occurred.
Fraud Loss Coverage Amount: As of the Closing Date, $3,135,218.64,
subject to reduction from time to time by the amount of Fraud Losses allocated
to the Certificates. In addition, on each anniversary of the Cut-off Date, the
Fraud Loss Coverage Amount will be reduced as follows: (a) on the first
anniversary of the Cut-off Date, to an amount equal to the lesser of (i) 2% of
the then current Pool Principal Balance and (ii) the excess of the Fraud Loss
Coverage Amount as of the preceding anniversary of the Cut-off Date over the
cumulative amount of Fraud Losses that would have been allocated to the
Certificates in the absence of the Loss Allocation Limitation since such
preceding anniversary, (b) on the second, third, forth and fifth anniversaries
of the Cut-off Date, to an amount equal to the lesser of (i) 1% of the then
current Pool Principal Balance and (ii) the excess of the Fraud Loss Coverage
Amount as of the preceding anniversary of the Cut-off Date over the cumulative
amount of Fraud Losses that would have been allocated to the Certificates in the
absence of the Loss Allocation Limitation since such preceding anniversary and
(c) on the earlier to occur of the Cross-Over Date and the fifth anniversary of
the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss
is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation as reported by the
applicable Servicer to the Master Servicer.
▇▇▇▇▇▇▇ Mac: ▇▇▇▇▇▇▇ Mac, a corporate instrumentality of the United
States created and existing under Title III of the Emergency Home Finance Act of
1970, as amended, or any successor thereto.
HUD: The United States Department of Housing and Urban Development
or any successor thereto.
Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Coverage Amount: $100,000.
Insolvency Proceeding: With respect to any Person: (i) any case,
action, or proceeding with respect to such Person before any court or other
governmental authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up, or relief of debtors; or
(ii) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in respect of
the creditors generally of such Person or any substantial portion of such
Person's creditors, in any case undertaken under federal, state or foreign law,
including the Bankruptcy Code.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses, to the extent such proceeds are not
applied to the restoration of the related Mortgaged Property or released to the
borrower in accordance with the applicable Servicer's normal servicing
procedures.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Certificates
and any Distribution Date, the calendar month prior to the month of such
Distribution Date.
Junior Certificates: As specified in the Preliminary Statement.
Junior Optimal Principal Amount: For any Distribution Date, the sum
of (i) the Junior Percentage of all amounts described in clauses (a) through (d)
of the definition of "Formula Principal Amount" for such Distribution Date, (ii)
with respect to each Mortgage Loan that became a Liquidated Loan during the
calendar month preceding the month of such Distribution Date, the lesser of (A)
the Junior Percentage of the Scheduled Principal Balance of such Mortgage Loan,
or (B) either (a) the Junior Prepayment Percentage, or (b) if an Excess Loss was
sustained with respect to such Liquidated Loan during such prior calendar month,
the Junior Percentage of the amount of the Liquidation Proceeds allocable to
principal received with respect to such Mortgage Loan, and (iii) the Junior
Prepayment Percentage of the amounts described in clause (e) of the definition
of "Formula Principal Amount" for such Distribution Date; provided, however,
that if a Bankruptcy Loss that is an Excess Loss is sustained with respect to a
Mortgage Loan that is not a Liquidated Loan, the Junior Optimal Principal Amount
will be reduced on the related Distribution Date by the Junior Percentage of the
principal portion of such Bankruptcy Loss.
Junior Percentage: As to any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Junior Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
Latest Possible Maturity Date: The Distribution Date following the
third anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender-Paid Mortgage Insurance Amount: With respect to any
Lender-Paid Mortgage Insurance Loan, the interest portion of each Monthly
Payment that is paid by the related Mortgagor that will be used to pay the
monthly premium of the "lender-paid" Primary Insurance Policy on such
Lender-Paid Mortgage Insurance Loan, which is calculated by multiplying the
Scheduled Principal Balance as of the related date of determination on such
Lender-Paid Mortgage Insurance Loan by the applicable Lender-Paid Mortgage
Insurance Rate.
Lender-Paid Mortgage Insurance Loan: Each of the four Mortgage Loans
identified on the Mortgage Loan Schedule as having a Lender-Paid Mortgage
Insurance Rate.
Lender-Paid Mortgage Insurance Rate: With respect to any Lender-Paid
Mortgage Insurance Loan, a per annum rate equal to the percentage indicated on
the Mortgage Loan Schedule under the heading "Lender-Paid Mortgage Insurance
Rate."
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the calendar
month preceding the month of such Distribution Date and as to which the
applicable Servicer or the Master Servicer, as the case may be, has determined
(in accordance with the applicable Sale and Servicing Agreement and this
Agreement) that it has received all amounts it expects to receive in connection
with the liquidation of such Mortgage Loan, including the final disposition of
an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees, Servicing
Advances and Advances.
Loan Sale Date: The respective dates on which the Transferor
purchased the Mortgage Loans from the Originators pursuant to the Sale and
Servicing Agreements.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any
date of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Loss Allocation Limitation: As defined in Section 4.03(d) hereof.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Lower-Tier REMIC: As described in the Preliminary Statement.
Lower-Tier REMIC Interest: Any one of the Lower-Tier REMIC Regular
Interests or the Class A-LR Certificate.
Lower-Tier REMIC Regular Interest: Any of the Class A-L1 Interest,
Class A-L2 Interest, Class A-LUR Interest, Class B-L1 Interest, Class B-L2
Interest, Class B-L3 Interest, Class B-L4 Interest, Class B-L5 Interest and
Class B-L6 Interest.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least 51%
of the Percentage Interests evidenced by all Certificates of such Class.
Master Servicer: ▇▇▇▇▇ Fargo Bank Minnesota, N.A., a national
banking association, and its successors and assigns, in its capacity as Master
Servicer hereunder.
Master Servicer Event of Termination: As defined in Section 7.01
hereof.
Master Servicing Compensation: All investment earnings on amounts on
deposit in the Collection Account and the Distribution Account and the Master
Servicing Fee.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Scheduled Principal Balance of such Mortgage Loan as of the
Due Date in the month of such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loan on such Due Date), subject to
reduction as provided in the definition of Compensating Interest.
Master Servicing Fee Rate: 0.0275% per annum.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: As defined in Section 2.01.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan which is payable by a Mortgagor under the related
Mortgage Note.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.04.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto.
If ▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Residential Mortgage Monitoring Group, or such other address as Moody's may
hereafter furnish to the Trustee, Depositor and the Master Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Master Servicer to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of February 1, 2002, between the Transferor and the
Depositor.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of Eligible
Substitute Mortgage Loans and the deletion of Deleted Mortgage Loans pursuant to
the provisions of this Agreement) transferred to the Trustee as part of the
Trust Fund and from time to time subject to this Agreement, attached hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan: (1) the Mortgage Loan identifying number; (2) the Mortgagor's
first and last name; (3) the street address of the Mortgaged Property including
the city, state and zip code; (4) the original principal balance of the Mortgage
Loan; (5) the Scheduled Principal Balance of the Mortgage Loan as of the close
of business on the Cut-off Date; (6) the unpaid principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date; (7) the last
scheduled Due Date on which a Monthly Payment was applied to the Scheduled
Principal Balance; (8) the last Due Date on which a Monthly Payment was actually
applied to the unpaid principal balance; (9) the Mortgage Rate in effect
immediately following origination; (10) the Mortgage Rate in effect immediately
following the Cut-off Date (if different from (9)); (11) the amount of the
Monthly Payment at origination; (12) the amount of the Monthly Payment as of the
Cut-off Date (if different from (11)); (13) a code indicating whether the
Mortgaged Property is owner-occupied, a second home or an investor property;
(14) a code indicating whether the Mortgaged Property is a single family
residence, a two-family residence, a three-family residence, a four-family
residence, a planned-unit development, or a condominium; (15) a code indicating
the loan purpose (i.e., purchase, rate/term refinance, cash-out refinance); (16)
the stated maturity date; (17) the original months to maturity; (18) the
remaining months to maturity from the Cut-off Date based on the original
amortization schedule and, if different, the remaining months to maturity
expressed in the same manner but based on the actual amortization schedule; (19)
the origination date of the Mortgage Loan; (20) the Appraised Value (including
the purchase price of the Mortgaged Property, if applicable) and Loan-to-Value
Ratio at origination; (21) the date on which the first Monthly Payment was due
on the Mortgage Loan after the origination date; (22) a code indicating the
documentation style of the Mortgage Loan; (23) a code indicating if the Mortgage
Loan is subject to a Primary Insurance Policy and, if so, the name of the
Qualified Mortgage Insurer, the certificate number and the coverage amount of
the Primary Insurance Policy; (24) a code indicating if the Mortgage Loan is
subject to a "lender-paid" Primary Insurance Policy and, if so, the name of the
Qualified Mortgage Insurer, the certificate number and the coverage amount of
the Primary Insurance Policy, and the Lender-Paid Mortgage Insurance Rate; (25)
the Servicing Fee Rate; (26) the program pursuant to which the Mortgage Loan was
underwritten; (27) a code indicating whether the Mortgage Loan is subject to a
prepayment penalty and, if so, the term of such prepayment penalty; (28) the
credit score (or mortgage score) of the Mortgagor; (29) a code indicating the
number of times the Mortgage Loan was delinquent in the prior twelve months;
(30) the debt-to-income ratio of the Mortgage Loan; (31) a code indicating the
Originator of the Mortgage Loan; (32) the next Mortgage Rate Adjustment Date;
and (33) the lifetime Mortgage Rate Cap.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to the provisions hereof as from time to time are held
as a part of the Trust Fund (including any REO Property), the mortgage loans so
held being identified in the Mortgage Loan Schedule, notwithstanding foreclosure
or other acquisition of title of the related Mortgaged Property.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time.
Mortgaged Property: The underlying property securing a Mortgage
Loan.
Mortgagor: The obligor(s) on a Mortgage Note.
National City: National City Mortgage Corporation, an Ohio
corporation, and its successors and assigns, in its capacity as seller and
servicer of the National City Mortgage Loans.
National City Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of February 28, 2002, among National City, the
Depositor and the Transferor.
National City Mortgage Loans: The Mortgage Loans transferred to the
Transferor pursuant to the National City Sale and Servicing Agreement and
subsequently acquired by the Depositor pursuant to the National City Assignment
Agreement and the Mortgage Loan Purchase Agreement.
National City Sale and Servicing Agreement: The Master Seller's
Warranties and Servicing Agreement, dated as of January 1, 2002, between the
Transferor and National City.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less (i) the related Servicing Fee
Rate, (ii) the Master Servicing Fee Rate and (iii), with respect to each
Lender-Paid Mortgage Insurance Loan, the Lender-Paid Mortgage Insurance Rate.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds the amount of Compensating Interest for such
Distribution Date.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the applicable Servicer or the Master Servicer, as the
case may be, that, in the good faith judgment of the applicable Servicer or the
Master Servicer, will not be ultimately recoverable by the applicable Servicer
or the Master Servicer from the related Mortgagor, related Liquidation Proceeds
or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to any Distribution Date and the Class
A-3 Certificates, the Class Principal Balance of the Class A-2 Certificates as
of such Distribution Date (prior to giving effect to any distributions of
principal made to the Class A-2 Certificates on such Distribution Date).
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of
the Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii), if provided for in
this Agreement, signed by a Master Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, including, in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of the Depositor and the Master Servicer, (ii) not have
any direct financial interest in the Depositor or the Master Servicer or in any
affiliate of either, and (iii) not be connected with the-Depositor or the Master
Servicer as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Optional Termination: The termination of the trust created hereunder
in connection with the purchase of the Mortgage Loans pursuant to Section
9.01(a) hereof.
Original Junior Principal Balance: The aggregate of the Class
Principal Balances of the Junior Certificates as of the Closing Date.
Originator: Each of National City and Countrywide, as applicable.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Scheduled Principal Balance greater than zero-which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Rate: For any interest bearing Class of Certificates,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the United
States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency, or such lower rating as will
not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by either Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each Rating
Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by either
Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long term unsecured
debt obligations of such depository institution or trust company (or in
the case of the principal depository institution in a holding company
system, the commercial paper or long-term unsecured debt obligations of
such holding company) are then rated in the highest long-term and the
highest short-term ratings of each Rating Agency for such securities, or
such lower ratings as will not result in the downgrading or withdrawal of
the rating then assigned to the Certificates by either Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC and are then rated in the highest
long-term and the highest short-term ratings of each Rating Agency for
such securities, or such lower ratings as will not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by either Rating Agency;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not result
in the downgrading or withdrawal of the rating then assigned to the
Certificates by either Rating Agency;
(vii) repurchase obligations with respect to any security described
in clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal) described in
clause (iv) above;
(viii) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face amount
thereof) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state thereof
which, at the time of such investment, have the highest rating of each
Rating Agency, or such lower rating as will not result in the downgrading
or withdrawal of the rating then assigned to the Certificates by either
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency and restricted to obligations issued
or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations;
(x) any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to instruments
that otherwise would constitute Permitted Investments hereunder, including
any such fund that is managed by the Trustee or Master Servicer or any
affiliate of the Trustee or Master Servicer or for which the Trustee or
Master Servicer or any affiliate of the Trustee or Master Servicer acts as
an adviser as long as such fund is rated in at least the highest rating
category by each Rating Agency; and
(xi) such other investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by either
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
provided that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, an estate whose income is subject to United States federal income tax
purposes regardless of its source or a trust if a court within the United States
is able to exercise primary supervision over the administration of the trust and
one or more persons described in this clause (v) have the authority to control
all substantial decisions of the Trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as United States persons) unless such Person has
furnished the transferor and the Trustee with a duly completed Internal Revenue
Service Form W-8ECI or any applicable successor form, and (vi) any other Person
so designated by the Depositor based upon an Opinion of Counsel that the
Transfer of an Ownership Interest in a Residual Certificate to such Person may
cause either REMIC hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of the Federal Home Loan Mortgage Corporation, a majority of its
board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Pool Principal Balance: As to any Distribution Date, the aggregate
of the Scheduled Principal Balances of the Mortgage Loans which were Outstanding
Mortgage Loans on the Due Date in the month preceding the month of such
Distribution Date.
Prepayment Interest Excess: As to any Principal Prepayment received
or, in the case of partial Principal Prepayments, applied by the applicable
Servicer or the Master Servicer from the first day through the fifteenth day of
any calendar month (other than the calendar month in which the Cut-off Date
occurs), all amounts paid by the related Mortgagor in respect of interest on
such Principal Prepayment.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received or, in the case of partial Principal
Prepayments, applied, during the month preceding the month of such Distribution
Date, the amount, if any, by which one month's interest at the related Net
Mortgage Rate on such Principal Prepayment exceeds the amount of interest paid
in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date, the calendar month
preceding the month of such Distribution Date.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments will be applied by the applicable Servicers in accordance
with the terms of the related Sale and Servicing Agreements and Partial
Principal Prepayments shall be applied by the applicable Servicers in accordance
with the terms of the related Mortgage Note, and to the extent the Mortgage Note
does not provide otherwise, shall be applied in the Prepayment Period preceding
the receipt thereof.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Private Certificate: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement dated February 26,
2002 relating to the Offered Certificates.
Protected Account: An account established and maintained for the
benefit of Certificateholders by each Servicer with respect to the related
Mortgage Loans and with respect to REO Property pursuant to the respective Sale
and Servicing Agreements.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by an Originator or the Transferor pursuant to Section 2.02 or 2.03
hereof, an amount equal to the sum of (i) 100% of the unpaid principal balance
of the Mortgage Loan on the date of such purchase, and (ii) accrued and unpaid
interest thereon at the applicable Mortgage Rate from the date through which
interest was last paid by the Mortgagor or the applicable Servicer or the Master
Servicer, as the case may be, made an Advance in respect thereof (which was not
reimbursed) to the Due Date in the month in which the Purchase Price is to be
distributed to Certificateholders.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of business
and each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and to
write the insurance provided by the insurance policy issued by it, approved as a
▇▇▇▇▇▇ ▇▇▇-approved mortgage insurer and having a claims paying ability rating
of at least "AA" or equivalent rating by a nationally recognized statistical
rating organization. Any replacement insurer with respect to a Mortgage Loan
must have at least as high a claims paying ability rating as the insurer it
replaces had on the Closing Date.
Qualified Mortgage Insurer: American Guaranty Corporation,
Commonwealth Mortgage Assurance Company, General Electric Mortgage Insurance
Companies, Mortgage Guaranty Insurance Corporation, PMI Mortgage Insurance
Company, Republic Mortgage Insurance Company or United Guaranty Residential
Insurance Corporation, as long as such mortgage insurer remains ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac approved.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Loan, an amount (not
less than zero or more than the Scheduled Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Scheduled Principal
Balance of the Liquidated Loan as of the date of such liquidation, plus (ii)
interest at the Net Mortgage Rate from the Due Date as to which interest was
last paid or advanced (and not reimbursed) to Certificateholders up to the Due
Date in the month in which Liquidation Proceeds are required to be distributed
on the Scheduled Principal Balance of such Liquidated Loan from time to time,
minus (iii) the Liquidation Proceeds, if any, received during the month in which
such liquidation occurred, to the extent applied as recoveries of interest at
the Net Mortgage Rate and to principal of the Liquidated Loan. With respect to
each Mortgage Loan which has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Refinancing Mortgage Loan: Any Mortgage Loan originated in
connection with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (ii) interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC: A "real estate mortgage investment conduit" within the
meaning of section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under the
applicable Sale and Servicing Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
having direct responsibility for the administration of this Agreement and also
to whom, with respect to a particular matter, such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Restricted Classes: As defined in Section 4.02(d).
Sale and Servicing Agreements: Each of the National City Sale and
Servicing Agreement and the Countrywide Sale and Servicing Agreement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Scheduled Principal Balance: As to any Mortgage Loan and Due Date,
the unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before any
adjustment to such amortization schedule by reason of any moratorium or similar
waiver or grace period) after giving effect to any previous partial Principal
Prepayments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Loan), and to the payment of principal due on such Due
Date and irrespective of any delinquency in payment by the related Mortgagor.
Securities Act: The Securities Act of 1933, as amended.
Senior Certificates: As specified in the Preliminary Statement.
Senior Optimal Principal Amount: For any Distribution Date, the sum
of (i) the Senior Percentage of all amounts described in clauses (a) through (d)
of the definition of "Formula Principal Amount" for such Distribution Date, (ii)
with respect to each Mortgage Loan that became a Liquidated Loan during the
calendar month preceding the month of such Distribution Date, the lesser of (A)
the Senior Percentage of the Scheduled Principal Balance of such Mortgage Loan,
or (B) either (a) the Senior Prepayment Percentage, or (b) if an Excess Loss was
sustained with respect to such Liquidated Loan during such prior calendar month,
the Senior Percentage, of the amount of the Liquidation Proceeds allocable to
principal received with respect to such Mortgage Loan, and (iii) the Senior
Prepayment Percentage of the amounts described in clause (e) of the definition
of "Formula Principal Amount" for such Distribution Date; provided, however,
that if a Bankruptcy Loss that is an Excess Loss is sustained with respect to a
Mortgage Loan that is not a Liquidated Loan, the Senior Optimal Principal Amount
will be reduced on the related Distribution Date by the Senior Percentage of the
principal portion of such Bankruptcy Loss.
Senior Percentage: As to any Distribution Date, the percentage
equivalent of a fraction the numerator of which is the aggregate of the Class
Principal Balances of each Class of Senior Certificates (other than the Class
A-3 Certificates) immediately preceding such Distribution Date and the
denominator of which is the aggregate of the Class Principal Balances of all
Classes of Certificates (other than the Class A-3 Certificates) immediately
preceding such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date during the
ten years beginning on the first Distribution Date, 100%. The Senior Prepayment
Percentage for any Distribution Date occurring on or after the tenth anniversary
of the first Distribution Date will, except as provided herein, be as follows:
for any Distribution Date in the first year thereafter, the Senior Percentage
plus 70% of the Junior Percentage for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage plus 60%
of the Junior Percentage for such Distribution Date; for any Distribution Date
in the third year thereafter, the Senior Percentage plus 40% of the Junior
Percentage for such Distribution Date; for any Distribution Date in the fourth
year thereafter, the Senior Percentage plus 20% of the Junior Percentage for
such Distribution Date; and for any Distribution Date thereafter, the Senior
Percentage for such Distribution Date (unless on any Distribution Date the
Senior Percentage exceeds the initial Senior Percentage, in which case the
Senior Prepayment Percentage for such Distribution Date will once again equal
100%); provided, however, (i) if on any Distribution Date the Senior Percentage
exceeds the initial Senior Percentage, the Senior Prepayment Percentage for such
Distribution Date will equal 100%, (ii) if on any Distribution Date before the
Distribution Date in February 2005, prior to giving effect to any distributions
on such Distribution Date, the Junior Percentage for such Distribution Date is
greater than or equal to twice the initial Junior Percentage, then the Senior
Prepayment Percentage for such Distribution Date will equal the Senior
Percentage plus 50% of the Junior Percentage and (iii) if on any Distribution
Date on or after the Distribution Date in February 2005, prior to giving effect
to any distributions on such Distribution Date, the Junior Percentage for such
Distribution Date is greater than or equal to twice the initial Junior
Percentage, then the Senior Prepayment Percentage for such Distribution Date
will equal the Senior Percentage. Notwithstanding the foregoing, no decrease in
the Senior Prepayment Percentage will occur and the Senior Prepayment Percentage
for such prior period will be calculated without regard to clause (ii) or (iii)
of the proviso in the sentence above unless both of the Senior Step Down
Conditions are satisfied.
Senior Step Down Conditions: As of the last day of the month
preceding the applicable Distribution Date as to which any decrease in the
Senior Prepayment Percentage applies, (i) the aggregate Scheduled Principal
Balance of all Mortgage Loans delinquent 60 days or more, as a percentage of the
aggregate principal balance of the Junior Certificates on such Distribution
Date, does not equal or exceed 50% and (ii) cumulative Realized Losses with
respect to the Mortgage Loans do not exceed (a) with respect to the Distribution
Date on the tenth anniversary of the first Distribution Date, 30% of the
Original Junior Principal Balance, (b) with respect to the Distribution Date on
the eleventh anniversary of the first Distribution Date, 35% of the Original
Junior Principal Balance, (c) with respect to the Distribution Date on the
twelfth anniversary of the first Distribution Date, 40% of the Original Junior
Principal Balance, (d) with respect to the Distribution Date on the thirteenth
anniversary of the first Distribution Date, 45% of the Original Junior Principal
Balance and (e) with respect to the Distribution Date on the fourteenth
anniversary of the first Distribution Date, 50% of the Original Junior Principal
Balance.
Servicer: Each of National City and Countrywide Servicing, as
applicable.
Servicer Advance Date: As to any Distribution Date, the 18th day of
each calendar month, or if such 18th day is not a Business Day, the immediately
succeeding Business Day.
Servicer Remittance Date: As to any Distribution Date, the 18th day
of each calendar month, or if such 18th day is not a Business Day, the
immediately succeeding Business Day.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its master servicing obligations or the applicable Servicer, as the case may be,
of its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer or the applicable Servicer, as the
case may be, pursuant to Section 3.11 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.09.
Servicing Agreements: The Countrywide Sale and Servicing Agreement
and the National City Sale and Servicing Agreement.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount payable out of each full payment of interest received on such Mortgage
Loan and equal to one-twelfth of the Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan as of the Due Date in the
month of such Distribution Date (prior to giving effect to any Scheduled
Payments due on such Mortgage Loan on such Due Date), subject to reduction as
provided in Section 3.14.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate set forth on the Mortgage Loan Schedule.
Similar Law: As defined in Section 5.02(b) hereof.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. If S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be Standard &
Poor's, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish to
the Trustee, Depositor and the Master Servicer.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss as reported by the applicable
Servicer to the Master Servicer suffered by a Mortgaged Property on account of
direct physical loss but not including (i) any loss of a type covered by a
hazard insurance policy or a flood insurance policy required to be maintained
with respect to such Mortgaged Property pursuant to Section 3.11 to the extent
of the amount of such loss covered thereby, or (ii) any loss caused by or
resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, any Servicer the Master Servicer or any of their agents or
employees (without regard to any portion of the loss not covered by any
errors and omissions policy);
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for
the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and
whether such loss be direct or indirect, proximate or remote or be in
whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending
or expected attack:
1. by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using
military, naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any government
or public authority or risks of contraband or illegal transportation or
trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $3,354,233, less (i) the aggregate amount of Special Hazard
Losses that would have been previously allocated to the Junior Certificates in
the absence of the Loss Allocation Limitation and (ii) the Adjustment Amount.
All principal balances for the purpose of this definition will be calculated as
of the first day of the calendar month preceding the month of such Distribution
Date after giving effect to Scheduled Payments on the Mortgage Loans then due,
whether or not paid. As of any Distribution after the Cross-Over Date, the
Special Hazard Loss Coverage Amount will be zero.
Special Hazard Mortgage Loan: A Liquidated Loan as to which a
Special Hazard Loss has occurred.
Startup Day: The Closing Date.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transferor: UBS Warburg Real Estate Securities Inc., in its capacity
as seller of the Mortgage Loans to the Depositor.
Trust: As defined in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loan Purchase Agreement, the Sale and Servicing Agreements
(other than rights and interests under the fifth paragraph of Section 7.03 of
the Countrywide Sale and Servicing Agreement and the sixth paragraph of Section
3.03 of the National City Sale and Servicing Agreement, which rights shall be
retained by the Depositor) and the Assignment Agreements, (ii) the Mortgage
Loans and all interest and principal received on or with respect thereto after
the Cut-off Date to the extent not applied in computing the Cut-off Date
Principal Balance thereof; (iii) the Collection Account and the Distribution
Account all amounts deposited therein pursuant to the applicable provisions of
this Agreement; (iv) property that secured a Mortgage Loan and has been acquired
by foreclosure, deed-in-lieu of foreclosure or otherwise; (v) the Lower-Tier
REMIC Regular Interests; and (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing
Trustee: JPMorgan Chase Bank, a New York banking corporation, and
its successors and, if a successor trustee is appointed hereunder, such
successor.
Two Times Test: This test is satisfied with respect to a Class of
Class B Certificates and any Distribution Date if (a) on any Distribution Date
prior to the Distribution Date in February 2012, the Fractional Interest of such
class is greater than or equal to twice its Fractional Interest on the Closing
Date and (b) the Senior Prepayment Percentage for such Distribution Date is
determined in accordance with clause (ii) or (iii) of the proviso in the
definition of "Senior Prepayment Percentage."
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) the Class A-3 Certificates will each be entitled to 1% of all
Voting Rights (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), and (b) the remaining Voting Rights (and the Voting Rights allocated
to the Class A-3 Certificates if there are no Class A-3 Certificates) shall be
allocated among Holders of the remaining Classes of Certificates in proportion
to the Certificate Principal Balances of their respective Certificates on such
date.
Section 1.02. Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of the
parties hereto, all calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of a
360-day year consisting of twelve 30-day months.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the benefit of the Certificateholders, without recourse, all the
right, title and interest of the Depositor in and to the Trust Fund together
with all rights assigned by the Transferor to the Depositor, pursuant to the
Mortgage Loan Purchase Agreement, solely with respect to the Mortgage Loans,
and, solely with respect to the Mortgage Loans, all of the Transferor's right,
title and interest in and to the Sale and Servicing Agreements and the
Assignment Agreements, provided, however, the Depositor reserves for itself and
does not assign to the Trustee its rights and interests under the fifth
paragraph of Section 7.03 of the Countrywide Sale and Servicing Agreement and
the sixth paragraph of Section 3.03 of the National City Sale and Servicing
Agreement.
(b) In connection with the transfer and assignment set forth in
clause (a) above, the Depositor has delivered or caused to be delivered to the
Master Servicer, on behalf of the Trustee, for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of ___________
without recourse," with all intervening endorsements showing a complete
chain of endorsement from the originator to the Person endorsing the
Mortgage Note (each such endorsement being sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note);
or, with respect to any Lost Mortgage Note, a lost note affidavit
from the related Originator or the Transferor stating that the original
Mortgage Note was lost or destroyed, together with a copy of such Mortgage
Note;
(ii) except as provided below, the original recorded Mortgage or a
copy of such Mortgage certified by the related Originator as being a true
and complete copy of the Mortgage;
(iii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments), endorsed in the
following form: "JPMorgan Chase Bank in trust for the MASTR Adjustable
Rate Mortgages Trust 2002-1 for the benefit of the Holders of the Mortgage
Pass-Though Certificates, Series 2002-1" together with, except as provided
below, all interim recorded assignments of such mortgage (each such
assignment, when duly and validly completed, to be in recordable form and
sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates); provided
that, if the related Mortgage has not been returned from the applicable
public recording office, such assignment of the Mortgage may exclude the
information to be provided by the recording office;
(iv) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(v) except as provided below, the original or duplicate original
lender's title policy and all riders thereto.
If any Mortgage has been recorded in the name of Mortgage Electronic
Registration System, Inc. ("MERS") or its designee, no assignment of Mortgage in
favor of the Trustee will be required to be prepared or delivered and instead,
the Master Servicer shall ensure that the applicable Servicer takes all actions
as are necessary to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
If in connection with any Mortgage Loan the Depositor cannot deliver
(a) the original recorded Mortgage, (b) all interim recorded assignments or (c)
the lender's title policy (together with all riders thereto) satisfying the
requirements of clause (ii), (iii) or (v) above, respectively, concurrently with
the execution and delivery hereof because such document or documents have not
been returned from the applicable public recording office in the case of clause
(ii) or (iii) above, or because the title policy has not been delivered to
either the Master Servicer or the Depositor by the applicable title insurer in
the case of clause (v) above, the Depositor shall promptly deliver to the Master
Servicer, in the case of clause (ii) or (iii) above, such original Mortgage or
such interim assignment, as the case may be, with evidence of recording
indicated thereon upon receipt thereof from the public recording office, or a
copy thereof, certified, if appropriate, by the relevant recording office, but
in no event shall any such delivery of the original Mortgage and each such
interim assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date, or, in
the case of clause (v) above, no later than 120 days following the Closing Date;
provided, however, in the event the Depositor is unable to deliver by such date
each Mortgage and each such interim assignment by reason of the fact that any
such documents have not been returned by the appropriate recording office, or,
in the case of each such interim assignment, because the related Mortgage has
not been returned by the appropriate recording office, the Depositor shall
deliver such documents to the Master Servicer as promptly as possible upon
receipt thereof and, in any event, within 720 days following the Closing Date.
The Depositor shall forward or cause to be forwarded to the Master Servicer (a)
from time to time additional original documents evidencing an assumption or
modification of a Mortgage Loan and (b) any other documents required to be
delivered by the Depositor to the Master Servicer. In the event that the
original Mortgage is not delivered and in connection with the payment in full of
the related Mortgage Loan and the public recording office requires the
presentation of a "lost instruments affidavit and indemnity" or any equivalent
document, because only a copy of the Mortgage can be delivered with the
instrument of satisfaction or reconveyance, the Master Servicer shall execute
and deliver or cause to be executed and delivered such a document to the public
recording office. In the case where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, the Depositor shall deliver or cause
to be delivered to the Master Servicer a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original recorded
Mortgage.
As promptly as practicable subsequent to such transfer and
assignment, set forth in clause (a) above and in any event, within ninety (90)
days thereafter, the Master Servicer shall affix the Trustee's name to each
assignment of Mortgage, as the assignee thereof, and the related Servicer
pursuant to the related Sale and Servicing Agreement shall (i) cause such
assignment to be in proper form for recording in the appropriate public office
for real property records and (ii) cause to be delivered for recording in the
appropriate public office for real property records the assignments of the
Mortgages to the Trustee, except that, with respect to any assignments of
Mortgage as to which the related Servicer has not received the information
required to prepare such assignment in recordable form, the related Servicer's
obligation to do so and to deliver the same for such recording shall be as soon
as practicable after receipt of such information and in any event within ninety
(90) days after receipt thereof and that the related Servicer need not cause to
be recorded any assignment which relates to a Mortgage Loan (a) the Mortgaged
Property and Mortgage File relating to which are located in California or (b) in
any other jurisdiction under the laws of which an Opinion of Counsel has been
delivered to the Trustee stating the recordation of such assignment is not
necessary to protect the Trustee's and the Certificateholders' interest in the
related Mortgage Loan.
In the case of Mortgage Loans that have been prepaid in full as of
the Closing Date, the Depositor, in lieu of delivering the above documents to
the Master Servicer on behalf of the Trustee, will deposit in the Collection
Account the portion of such payment that is required to be deposited in the
Collection Account pursuant to Section 3.07 hereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as MASTR Adjustable Rate
Mortgages Trust 2002-1" and JPMorgan Chase Bank is hereby appointed as Trustee
in accordance with the provisions of this Agreement.
Section 2.02. Acceptance by Trustee of the Mortgage Loans.
The Master Servicer, on behalf of the Trustee, acknowledges receipt
of the documents identified in the Initial Certification in the form annexed
hereto as Exhibit F (unless the related Mortgage has been registered in the name
of MERS or its designee) and declares that it holds and will hold such documents
and the other documents delivered to it constituting the Mortgage Files, and
each of the Master Servicer and Trustee together declare that it holds or will
hold such other assets as are included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Master Servicer acknowledges that it will maintain possession of the Mortgage
Notes in the State of Minnesota, unless otherwise permitted by the Rating
Agencies and the Trustee.
The Master Servicer agrees to execute and deliver on the Closing
Date to the Depositor and the Trustee an Initial Certification in the form
annexed hereto as Exhibit F. Based on its review and examination, and only as to
the documents identified in such Initial Certification, the Master Servicer
acknowledges, subject to any applicable exceptions noted on Exhibit F, that such
documents appear regular on their face and relate to such Mortgage Loan. The
Master Servicer shall be under no duty or obligation to (i) inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face or (ii) determine
whether the Mortgage File should include any of the documents specified in
Section 2.01(b)(iv) unless the Mortgage Loan Schedule indicates that such
documents are applicable.
Not later than 90 days after the Closing Date, the Master Servicer
shall deliver to the Depositor, the Trustee and the Transferor a Final
Certification in the form annexed hereto as Exhibit G, with any applicable
exceptions noted thereon. The Master Servicer shall make available, upon request
of any Certificateholder, a copy of any exceptions noted on the Initial
Certification or the Final Certification.
If, in the course of such review, the Master Servicer finds any
document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01, the Master Servicer shall list such as an
exception in the Final Certification; provided, however, that the Master
Servicer shall not make any determination as to whether (i) any endorsement is
sufficient to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note, (ii) any
assignment is in recordable form or is sufficient to effect the assignment of
and transfer to the assignee thereof under the mortgage to which the assignment
relates or (iii) the Mortgage File should include any of the documents specified
in Section 2.01(b)(iv) unless the Mortgage Loan Schedule indicates that such
documents are applicable. The Trustee shall enforce the applicable duties of any
Originator to correct and cure such document defects pursuant to the terms of
the related Sale and Servicing Agreements and if the related Originator fails to
correct or cure the defect within a period of time specified in the related Sale
and Servicing Agreement and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Trustee
shall enforce the Originator's obligation pursuant to the related Sale and
Servicing Agreement or the Transferor's obligation hereunder, to purchase such
Mortgage Loan at the Purchase Price. Any such purchase of a Mortgage Loan shall
not be effected prior to the delivery to the Master Servicer of a Request for
Release substantially in the form of Exhibit L. The Purchase Price for any such
Mortgage Loan shall be paid by the applicable Originator or the Transferor to
the Master Servicer for deposit in the Collection Account on or prior to the
Distribution Account Deposit Date for the Distribution Date in the month
following the month of repurchase and, upon receipt of such deposit, the Master
Servicer shall release the related Mortgage File to such Originator and the
Trustee shall execute and deliver at such Originator's or Transferor's request
such instruments of transfer or assignment prepared by such Originator, in each
case without recourse, representation or warranty, as shall be necessary to vest
in such Originator, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto.
The Master Servicer shall retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions set
forth herein. Pursuant to the terms of the related Sale and Servicing Agreement,
the Master Servicer will cause each of the related Servicers to promptly deliver
to it and thereupon will promptly deposit within each Mortgage File, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the possession of the
related Servicers from time to time.
It is understood and agreed that the obligations of an Originator
pursuant to the applicable Sale and Servicing Agreement and the Transferor
hereunder to purchase any Mortgage Loan which does not meet the requirements of
Section 2.01 above or substitute for the related Mortgage Loan an Eligible
Substitute Mortgage Loan shall constitute the sole remedy respecting such defect
available to the Trustee, the Master Servicer, the Depositor and any
Certificateholder.
Section 2.03. Remedies for Breaches of Representations and
Warranties.
The Transferor hereby makes the representations and warranties set
forth in Schedule II hereto, and by this reference incorporated herein, to the
Depositor and the Trustee, as of the Closing Date, or if so specified therein,
as of the Cut-off Date.
Upon discovery by any of the parties hereto of a breach of a
representation or warranty made by the Transferor pursuant to this Section 2.03
or by an Originator under the related Sale and Servicing Agreement that
materially and adversely affects the interests of the Certificateholders in any
Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. A breach which causes a Mortgage Loan not to
constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, will be deemed automatically to materially and adversely affect the
interests of the Certificateholders in such Mortgage Loan. Upon receiving notice
of a breach, the Trustee shall in turn notify the applicable Originator or the
Transferor, as applicable, of such breach. The Trustee shall enforce the
obligations of (i) the applicable Originator in accordance with the related Sale
and Servicing Agreement to correct or cure any such breach of a representation
or warranty made pursuant to the related Sale and Servicing Agreement within the
time period specified in the related Sale and Servicing Agreement and (ii) the
Transferor in accordance with this Section 2.03 to correct or cure any such
breach of a representation or warranty made herein within the time period
specified this Section 2.03, and if the Originator or the Transferor, as
applicable, fails to correct or cure the defect within such period, and such
defect materially and adversely affects the interests of the Certificateholders
in the related Mortgage Loan, the Trustee shall enforce the Originator's
obligation pursuant to the related Sale and Servicing Agreement or the
Transferor's obligations hereunder, as the case may be, to (i) purchase such
Mortgage Loan at the Purchase Price or (ii) substitute for the related Mortgage
Loan a Substituted Mortgage Loan, in each case, such Mortgage Loan (a "Deleted
Mortgage Loan") will be removed from the Trust Fund.
The Transferor hereby covenants that within sixty (60) days of the
earlier discovery or its receipt of written notice from any party of a breach of
any representation or warranty made pursuant to this Section 2.03 which
materially and adversely affects the interest of the Certificateholders in any
Mortgage Loan it shall cure such breach in all material respects, and if such
breach is not so cured, shall, (i) if such sixty (60) day period expires prior
to the second anniversary of the Closing Date, remove such Mortgage Loan from
the Trust Fund and substitute in its place an Eligible Substitute Mortgage Loan
or Loans into the Trust Fund, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or Mortgage
Loans from the Trustee at the Purchase Price in the manner set forth below. The
Transferor shall promptly reimburse the Master Servicer and the Trustee for any
expenses reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach by the Transferor.
With respect to any Eligible Substitute Mortgage Loan or Loans, the
Transferor shall deliver to the Master Servicer on behalf of the Trustee for the
benefit of the Certificateholders the Mortgage Note, the Mortgage, the related
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. Any substitution made by an Originator
will be made in accordance with the terms of the related Sale and Servicing
Agreement which terms shall be enforced by the Trustee. No substitution is
permitted to be made on any day in any calendar month after the Determination
Date for such month.
With respect to substitutions made by the Transferor, Scheduled
Payments due with respect to Eligible Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
Transferor on the next succeeding Distribution Date. For the month of
substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter the
Transferor shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Eligible Substitute Mortgage Loan or
Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule
to the Trustee. Upon such substitution, the Eligible Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects, and the
Transferor shall be deemed to have made with respect to such Eligible Substitute
Mortgage Loan or Loans, as of the date of substitution, the representations and
warranties made pursuant to this Section 2.03 with respect to such Mortgage
Loan. Upon any such substitution and the deposit to the Collection Account of
the amount required to be deposited therein in connection with such substitution
as described in the following paragraph, the Master Servicer shall release the
Mortgage File held for the benefit of the Certificateholders relating to such
Deleted Mortgage Loan to the applicable Originator or the Transferor and shall
execute and deliver or cause the Trustee to execute and deliver at Originator's
or Transferor's direction such instruments of transfer or assignment prepared by
the Originator or Transferor, in each case without recourse, representation or
warranty as shall be necessary to vest title in the Originator or Transferor, as
applicable, or its designee, the Trustee's interest in any Deleted Mortgage Loan
substituted for pursuant to this Section 2.03.
For any month in which an Originator or the Transferor substitutes
one or more Eligible Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the Master Servicer will determine the amount (if any) by which the
aggregate principal balance of all such Eligible Substitute Mortgage Loans as of
the date of substitution is less than the aggregate Scheduled Principal Balance
of all such Deleted Mortgage Loans (after application of the scheduled principal
portion of the monthly payments due in the month of substitution). The amount of
such shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be deposited in the Collection Account by the Transferor (or if such
substitution is made by an Originator, the Master Servicer) on or before the
Distribution Account Deposit Date for the Distribution Date in the month
succeeding the calendar month during which the related Mortgage Loan became
required to be purchased or replaced hereunder.
In the event that an Originator or the Transferor, as applicable,
shall have repurchased a Mortgage Loan, the Purchase Price therefor shall be
deposited in the Collection Account pursuant to Section 3.07 on or before the
Distribution Account Deposit Date for the Distribution Date in the month
following the month during which such Originator or Transferor became obligated
hereunder to repurchase or replace such Mortgage Loan and upon such deposit of
the Purchase Price and receipt of a Request for Release in the form of Exhibit L
hereto, the Master Servicer shall release the related Mortgage File held for the
benefit of the Certificateholders to such Person, and the Trustee shall execute
and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse,
representation or warranty, as shall be necessary to transfer title from the
Trustee. It is understood and agreed that the obligation under this Agreement of
any Person to cure, repurchase or replace any Mortgage Loan as to which a breach
has occurred and is continuing shall constitute the sole remedies against such
Persons respecting such matters available to Certificateholders, the Master
Servicer, the Depositor or the Trustee on their behalf.
The provisions of this Section 2.03 shall survive the conveyance and
assignment of the Mortgage Files to the Trustee and the delivery of the
respective Mortgage Files to the Master Servicer for the benefit of the Trustee
and the Certificateholders.
Section 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee and the
Master Servicer with respect to each Mortgage Loan as of the date hereof or such
other date set forth herein that as of the Closing Date, and following the
transfer of the Mortgage Loans to it by the Transferor, the Depositor had good
title to the Mortgage Loans and the Mortgage Notes were subject to no offsets,
liens, defenses or counterclaims.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the Mortgage Files to
the Master Servicer. Upon discovery by the Depositor, the Transferor, the Master
Servicer or the Trustee of a breach of any of the foregoing representations and
warranties set forth in this Section 2.04 (referred to herein as a "breach"),
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05. [Reserved.]
Section 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and acknowledges in exchange therefor the issuance of the Lower-Tier
REMIC Regular Interests and the Class A-LR Certificates. The Trustee further
acknowledges the transfer and assignment to it of the Lower-Tier REMIC Regular
Interests and, concurrently with such transfer and assignment, has executed,
authenticated and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund
and to exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates and to perform the duties set forth in this
Agreement to the best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
Section 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations as "regular
interests" or "residual interests" and "latest possible maturity date" for
federal income tax purposes of all interests created hereby. The "Startup Day"
of the Upper-Tier REMIC and the Lower-Tier REMIC for purposes of the REMIC
Provisions shall be the Closing Date. Each REMIC's fiscal year shall be the
calendar year.
Section 2.08. Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the
Trustee as follows:
(a) the Master Servicer shall cause each Servicer to perform its
obligations under the applicable Sale and Servicing Agreement; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any affiliate
of the Depositor or the Trustee and prepared by the Master Servicer pursuant to
this Agreement will contain any untrue statement of a material fact or omit to
state a material fact necessary to make such information, certificate, statement
or report not misleading.
Section 2.09. Representations and Warranties of the Master Servicer.
The Master Servicer hereby represents and warrants to the Depositor
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date:
(a) The Master Servicer is duly organized as a corporation and is
validly existing and in good standing under the laws of the United States of
America and is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by the Master Servicer in any
state in which a Mortgaged Property is located or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to ensure its ability to enforce each Mortgage Loan, to service the
Mortgage Loans in accordance with the terms of this Agreement and to perform any
of its other obligations under this Agreement in accordance with the terms
thereof.
(b) The Master Servicer has the full power and authority to master
service each Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary action on the part of the Master Servicer the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with its terms,
except that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) The execution and delivery of this Agreement by the Master
Servicer, and the master servicing of the Mortgage Loans by the Master Servicer
under this Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance with the
terms thereof are in the ordinary course of business of the Master Servicer and
will not (A) result in a material breach of any term or provision of the
articles of incorporation or by-laws of the Master Servicer or (B) materially
conflict with, result in a material breach, violation or acceleration of, or
result in a material default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or (C) constitute a material violation of any statute, order or regulation
applicable to the Master Servicer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Master Servicer; and
the Master Servicer is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
the Master Servicer's ability to perform or meet any of its obligations under
this Agreement.
(d) The Master Servicer or an affiliate thereof is an approved
servicer of conventional mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and is a
mortgagee approved by the Secretary of Housing and Urban Development pursuant to
sections 203 and 211 of the National Housing Act.
(e) No litigation is pending or threatened against the Master
Servicer that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master Servicer to master
service the Mortgage Loans or to perform any of its other obligations under this
Agreement in accordance with the terms thereof.
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is required,
the Master Servicer has obtained the same.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01. Master Servicing of Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer
shall supervise, monitor and oversee the obligation of the Servicers to service
and administer their respective Mortgage Loans in accordance with the terms of
the applicable Sale and Servicing Agreement and shall have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such master servicing and administration. In performing its
obligations hereunder, the Master Servicer shall act in a manner consistent with
this Agreement and with customary and usual standards of practice of prudent
mortgage loan master servicers. Furthermore, the Master Servicer shall oversee
and consult with each Servicer as necessary from time-to-time to carry out the
Master Servicer's obligations hereunder, shall receive, review and evaluate all
reports, information and other data provided to the Master Servicer by each
Servicer and shall cause each Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by such Servicer under
the applicable Sale and Servicing Agreement. The Master Servicer shall
independently and separately monitor each Servicer's servicing activities with
respect to each related Mortgage Loan, reconcile the results of such monitoring
with such information provided in the previous sentence on a monthly basis and
coordinate corrective adjustments to the Servicers' and Master Servicer's
records, and based on such reconciled and corrected information, prepare the
statements specified in Section 4.04 and any other information and statements
required hereunder. The Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicers to the
Collection Account pursuant to the applicable Sale and Servicing Agreements.
In accordance with the standards of the preceding paragraph and to
the extent the related Servicer does not make such advance, the Master Servicer
shall advance or cause to be advanced funds as necessary for the purpose of
effecting the payment of taxes and assessments on the Mortgaged Properties,
which advances shall be reimbursable in the first instance from related
collections from the Mortgagors pursuant to Section 3.07, and further as
provided in Section 3.08. The costs incurred by the Master Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Scheduled Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
Section 3.02. Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the
Trustee and the Depositor the compliance by each Servicer with its duties under
the related Sale and Servicing Agreement. In the review of each Servicer's
activities, the Master Servicer may rely upon an officer's certificate of the
Servicer with regard to such Servicer's compliance with the terms of its Sale
and Servicing Agreement. In the event that the Master Servicer, in its judgment,
determines that a Servicer should be terminated in accordance with its Sale and
Servicing Agreement, or that a notice should be sent pursuant to such Sale and
Servicing Agreement with respect to the occurrence of an event that, unless
cured, would constitute grounds for such termination, the Master Servicer shall
notify the Depositor and the Trustee thereof and the Master Servicer shall issue
such notice or take such other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Sale and Servicing Agreement, and shall, in the event that a Servicer
fails to perform its obligations in accordance with the related Sale and
Servicing Agreement, subject to the preceding paragraph, terminate the rights
and obligations of such Servicer thereunder and act as successor Servicer of the
related Mortgage Loans or cause the Trustee to enter into a new Sale and
Servicing Agreement with a successor Servicer selected by the Master Servicer;
provided, however, it is understood and acknowledged by the parties hereto that
there will be a period of transition (not to exceed 90 days) before the actual
servicing functions can be fully transferred to such successor Servicer. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sale and Servicing Agreements and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, provided
that the Master Servicer shall not be required to prosecute or defend any legal
action except to the extent that the Master Servicer shall have received
reasonable indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
any Sale and Servicing Agreement (including, without limitation, (i) all legal
costs and expenses and all due diligence costs and expenses associated with an
evaluation of the potential termination of the Servicer as a result of an event
of default by such Servicer and (ii) all costs and expenses associated with the
complete transfer of servicing, including all servicing files and all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the successor servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
service to service the Mortgage Loans in accordance with the related Sale and
Servicing Agreement) are not fully and timely reimbursed by the terminated
Servicer, the Master Servicer shall be entitled to reimbursement of such costs
and expenses from the Collection Account.
(d) The Master Servicer shall require each Servicer to comply with
the remittance requirements and other obligations set forth in the related Sale
and Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
Section 3.03. [Reserved]
Section 3.04. Rights of the Depositor and the Trustee in Respect of
the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. Neither the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by the Master Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Master Servicer hereunder or
otherwise.
Section 3.05. Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer
be the Master Servicer hereunder (including by reason of a Master Servicer Event
of Termination), the Trustee or its successor shall in accordance with Section
7.02 thereupon assume all of the rights and obligations of the Master Servicer
hereunder arising thereafter (except that the Trustee shall not be (i) liable
for losses of the Master Servicer pursuant to Section 3.09 hereof or any acts or
omissions of the predecessor Master Servicer hereunder), (ii) obligated to make
Advances if it is prohibited from doing so by applicable law, (iii) obligated to
effectuate repurchases or substitutions of Mortgage Loans hereunder including,
but not limited to, repurchases or substitutions of Mortgage Loans pursuant to
Section 2.02 or 2.03 hereof, (iv) responsible for expenses of the Master
Servicer pursuant to Section 2.03 or (v) deemed to have made any representations
and warranties of the Master Servicer pursuant to Section 2.09 hereunder). Any
such assumption shall be subject to Section 7.02 hereof. If the Master Servicer
shall for any reason no longer be the Master Servicer (including by reason of
any Master Servicer Event of Termination), the Trustee or its successor may, but
shall not be obligated to, succeed to any rights and obligations of the Master
Servicer under each subservicing agreement.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best efforts
to effect the orderly and efficient transfer of the substitute subservicing
agreement to the assuming party.
The Trustee or successor master servicer shall be entitled to be
reimbursed from the Master Servicer for all costs associated with the transfer
of master servicing from the Master Servicer, including, without limitation, any
costs or expenses associated with the complete transfer of all master servicing
data and the completion, correction or manipulation of such master servicing
data as may be required by the Trustee or successor master servicer to correct
any errors or insufficiencies in the master servicing data or otherwise to
enable the Trustee or successor master servicer to master service the Mortgage
Loans properly and effectively.
If the Master Servicer does not pay such reimbursement within thirty
(30) days of its receipt of an invoice therefor, such reimbursement shall be an
expense of the Trust and the Trustee shall be entitled to withdraw such
reimbursement from amounts on deposit in the Distribution Account pursuant to
Section 3.10(b)(iv); provided that the Master Servicer shall reimburse the Trust
for any such expense incurred by the Trust.
Section 3.06. Protected Accounts.
(a) The Master Servicer shall enforce the obligation of each
Servicer to establish and maintain a Protected Account in accordance with the
applicable Sale and Servicing Agreement, with records to be kept with respect
thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts shall be
deposited within 48 hours (or as of such other time specified in the related
Sale and Servicing Agreement) of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received by a
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, and advances made from the Servicer's own funds (less servicing
compensation as permitted by the applicable Servicing Agreement in the case of
any Servicer) and all other amounts to be deposited in the Protected Account.
The Master Servicer is hereby authorized to make withdrawals from and deposits
to the related Protected Account for purposes required or permitted by this
Agreement.
(b) In accordance with the terms of the applicable Sale and
Servicing Agreement, amounts on deposit in a Protected Account may be invested
by the applicable Servicer in investments specified in such Sale and Servicing
Agreement. The income earned from investments made pursuant to this Section 3.06
shall be paid to the related Servicer under the applicable Sale and Servicing
Agreement, and the risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be borne by and be the
risk of the related Servicer. The related Servicer (to the extent provided in
the Sale and Servicing Agreement) shall deposit the amount of any such loss in
the Protected Account within two Business Days of receipt of notification of
such loss but not later than the second Business Day prior to the Distribution
Date on which the moneys so invested are required to be distributed to the
Certificateholders.
Section 3.07. Collection of Mortgage Loan Payments; Collection
Account; Distribution Account.
(a) The Master Servicer shall enforce the obligation of the
Servicers to collect all payments called for under the terms and provisions of
the Mortgage Loans to the extent such procedures shall be consistent with the
Sale and Servicing Agreements and the terms and provisions of any related
Required Insurance Policy.
(b) The Master Servicer shall establish and maintain a Collection
Account into which the Master Servicer shall deposit or cause to be deposited
within two Business Days of receipt, except as otherwise specifically provided
herein, the following payments and collections remitted by the Servicers, or
received by it in respect of Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans on or
before the Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Servicing Fee;
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the applicable
Servicers or Master Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.07(e) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.15(b), 3.15(d), and in respect of net monthly rental
income from REO Property pursuant to Section 3.15 hereof;
(vi) all Advances made by the Master Servicer pursuant to Section
4.01;
(vii) Compensating Interest Payments; and
(viii) any other amounts required to be deposited hereunder.
In the event that the Master Servicer shall deposit into the
Collection Account any amount not required to be deposited, it may at any time
withdraw such amount from the Collection Account, any provision herein to the
contrary notwithstanding. The Master Servicer shall maintain adequate records
with respect to all withdrawals made pursuant to this Section. All funds
deposited in the Collection Account shall be held in trust for the
Certificateholders until withdrawn in accordance with Section 3.10.
(c) (Reserved)
(d) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.10(ix);
(ii) any amount deposited by the Master Servicer pursuant to Section
3.07(e) in connection with any losses on Permitted Investments; and
(iii) any other amounts described hereunder which are required to be
deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not
required to be remitted, it may at any time direct the Trustee to withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.10(b).
Funds deposited in the Distribution Account shall be deemed to be assets of the
Lower-Tier REMIC until deemed distributed in respect of the Lower-Tier REMIC
Regular Interests and the Class A-LR Certificates pursuant to Sections 4.02(e),
4.02(a)(iv) and 4.02(a)(v) and then shall be deemed to be assets of the
Upper-Tier REMIC until distributed in respect of the Certificates (other than
the Class A-LR Certificates) in accordance with Section 4.02(a). In no event
shall the Trustee incur liability for withdrawals from the Distribution Account
at the direction of the Master Servicer.
(e) Each institution at which the Collection Account or Distribution
Account is maintained shall invest the funds on deposit in the Collection
Account or Distribution Account as directed in writing by the Master Servicer,
in Permitted Investments. Funds invested in the Collection Account shall mature
not later than the Business Day next preceding the related Distribution Account
Deposit Date (except that if such Permitted Investment is an obligation of or is
managed by the institution that maintains such account, then such Permitted
Investment shall mature not later than such Distribution Account Deposit Date).
The Trustee shall invest funds on deposit in the Distribution Account in
Permitted Investments as directed by the Master Servicer which Permitted
Investments shall mature not later than the Business Day next preceding the
Distribution Date (except that if such Permitted Investment is an obligation of
or is managed by the institution that maintains such fund or account, then such
Permitted Investment shall mature not later than such Distribution Date).
Permitted Investments in respect of the Collection Account or the Distribution
Account shall not be sold or disposed of prior to their maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the benefit
of the Certificateholders. All income and gain net of any losses realized from
any such investment of funds on deposit in the Collection Account shall be for
the benefit of the Master Servicer as master servicing compensation and shall be
remitted to it monthly as provided herein. The amount of any realized losses in
the Collection Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Master Servicer in the Collection
Account or paid to the Trustee by wire transfer of immediately available funds
for deposit into the Distribution Account. All income and gain net of any losses
realized from any such investment of funds on deposit in the Distribution
Account shall be for the benefit of the Master Servicer as additional
compensation and shall be remitted to it monthly as provided herein. The amount
of any realized losses in the Distribution Account incurred in any such account
in respect of any such investments shall promptly be deposited by the Master
Servicer in the Distribution Account. The Trustee shall not be liable for the
amount of any loss incurred in respect of any investment or lack of investment
of funds held in the Collection Account (except to the extent the Trustee is the
obligor and has defaulted thereon) or the Distribution Account and made in
accordance with this Section 3.07. In the absence of written instructions by the
Master Servicer to invest funds held in the Collection Account or Distribution
Account, all funds on deposit thereon shall remain uninvested.
(f) The Master Servicer shall give notice to the Trustee, each
Rating Agency and the Depositor of any proposed change of the location of the
Collection Account prior to any change thereof. The Trustee shall give notice to
the Master Servicer, each Rating Agency and the Depositor of any proposed change
of the location of the Distribution Account prior to any change thereof.
Section 3.08. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) To the extent required by the related Sale and Servicing
Agreement and by the related Mortgage Note and not violative of current law, the
Master Servicer shall require each Servicer to establish and maintain one or
more accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by such Servicer) for the payment
of taxes, assessments, hazard insurance premiums or comparable items for the
account of the Mortgagors. Nothing herein shall require the Master Servicer to
compel a Servicer to establish an Escrow Account in violation of applicable law.
Section 3.09. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford and shall require the Servicers to
afford the Depositor and the Trustee reasonable access to all records and
documentation regarding the Mortgage Loans and all accounts, insurance
information and other matters relating to this Agreement or the Sale and
Servicing Agreement, such access being afforded without charge, but only upon
reasonable request and during normal business hours at the office designated by
the Master Servicer or the applicable Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide or shall require the Servicers to provide to each Certificateholder
which is a savings and loan association, bank or insurance company certain
reports and reasonable access to information and documentation regarding the
Mortgage Loans sufficient to permit such Certificateholder to comply with
applicable regulations of the OTS or other regulatory authorities with respect
to investment in the Certificates; provided that the Master Servicer or the
applicable Servicer shall be entitled to be reimbursed by each such
Certificateholder for actual expenses incurred by the Master Servicer or the
applicable Servicer in providing such reports and access.
Section 3.10. Permitted Withdrawals from the Collection Account and
Distribution Account.
(a) The Master Servicer may from time to time make withdrawals from
the Collection Account for the following purposes:
(i) to pay to the Servicers or the Master Servicer, as the case may
be (to the extent not previously retained by the Servicers or the Master
Servicer), the servicing or master compensation, as the case may be, to
which they are entitled pursuant to Section 3.19, and to pay to the Master
Servicer, as additional master servicing compensation, earnings on or
investment income with respect to funds in or credited to the Collection
Account;
(ii) to reimburse the Servicers or the Master Servicer for
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made;
(iii) to reimburse the Servicers or the Master Servicer for any
Nonrecoverable Advance previously made;
(iv) to reimburse the Servicers or the Master Servicer for Insured
Expenses from the related Insurance Proceeds;
(v) to reimburse the Servicers or the Master Servicer for (a)
unreimbursed Servicing Advances, the Servicers' or the Master Servicer's
right to reimbursement pursuant to this clause (a) with respect to any
Mortgage Loan being limited to amounts received on such Mortgage Loan(s)
which represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01 or Section 3.06 and (b) for unpaid
Servicing Fees as provided in Section 3.15 hereof;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2.02 or 2.03, all amounts received thereon after the date of such
purchase;
(vii) to reimburse the Transferor, the Master Servicer or the
Depositor for expenses or indemnities incurred by any of them and
reimbursable pursuant to Section 6.03 hereof;
(viii) to withdraw any amount deposited in the Collection Account
and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to
withdraw an amount equal to the related Available Funds for such
Distribution Date and remit by wire transfer of immediately available
funds such amount to the Trustee for deposit in the Distribution Account;
and
(x) to clear and terminate the Collection Account upon termination
of this Agreement pursuant to Section 9.01 hereof.
The Master Servicer shall keep and maintain separate accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Collection Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee an
Officer's Certificate of a Master Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders, in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of any
taxes that it is authorized to withhold pursuant to the last paragraph of
Section 8.11). In addition, the Trustee may from time to time make withdrawals
from the Distribution Account for the following purposes:
(i) (Reserved);
(ii) to pay to the Master Servicer earnings on or investment income
with respect to funds in or credited to the Distribution Account;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein;
(iv) to withdraw any indemnity, expense or other reimbursement owed
to it pursuant to this Agreement, including, without limitation, Section
3.05, Section 7.02 and Section 8.05; and
(v) to clear and terminate the Distribution Account upon termination
of the Agreement pursuant to Section 9.01 hereof.
Section 3.11. Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Sale and Servicing Agreements to
maintain or cause to be maintained standard fire and casualty insurance and,
where applicable, flood insurance, all in accordance with the provisions of the
related Sale and Servicing Agreements. It is understood and agreed that such
insurance shall be with insurers meeting the eligibility requirements set forth
in the applicable Sale and Servicing Agreement and that no earthquake or other
additional insurance is to be required of any Mortgagor or to be maintained on
property acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) Pursuant to Sections 3.07 and 3.08, any amounts collected by the
Master Servicer, or by any Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
applicable Sale and Servicing Agreement) shall be deposited into the Collection
Account, subject to withdrawal pursuant to Sections 3.07 and 3.08. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.07 and 3.08.
Section 3.12. Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the applicable
Sale and Servicing Agreement) cause the related Servicer to, prepare and present
on behalf of the Trustee and the Certificateholders all claims under the
Insurance Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Collection Account upon receipt, except that any amounts realized that are to be
applied to the repair or restoration of the related Mortgaged Property as a
condition precedent to the presentation of claims on the related Mortgage Loan
to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
Section 3.13. Maintenance of the Primary Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to
the extent such action is prohibited under the applicable Sale and Servicing
Agreement) to take, any action that would result in noncoverage under any
applicable Primary Insurance Policy of any loss which, but for the actions of
such Master Servicer or Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to the
extent required under the related Sale and Servicing Agreement) to keep in force
and effect (to the extent that the Mortgage Loan requires the Mortgagor to
maintain such insurance), primary mortgage insurance applicable to each Mortgage
Loan in accordance with the provisions of this Agreement and the related Sale
and Servicing Agreement, as applicable. The Master Servicer shall not, and shall
not permit any Servicer (to the extent required under the related Sale and
Servicing Agreement) to, cancel or refuse to renew any such Primary Insurance
Policy that is in effect at the date of the initial issuance of the Mortgage
Note and is required to be kept in force hereunder except in accordance with the
provisions of this Agreement and the related Sale and Servicing Agreement, as
applicable.
(b) The Master Servicer agrees to (i) present, or to cause each
Servicer (to the extent required under the related Sale and Servicing Agreement)
to present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Insurance Policies respecting defaulted Mortgage Loans. Pursuant to Sections
3.07 and 3.08, any amounts collected by the Master Servicer or any Servicer
under any Primary Mortgage Insurance Policies shall be deposited in the
Collection Account, subject to withdrawal pursuant to Sections 3.07 and 3.08 and
(ii) enforce the obligations of the applicable Servicer under the related Sale
and Servicing Agreement to effect the timely payment of the premiums on each
Primary Insurance Policy, including the timely payment of the Lender-Paid
Mortgage Insurance Amount for each "lender-paid" Primary Insurance Policy.
Section 3.14. Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall cause each Servicer (to the extent
required under the related Sale and Servicing Agreement) to foreclose upon,
repossess or otherwise comparably convert the ownership of Mortgaged Properties
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments, all in accordance with the applicable Sale and Servicing Agreement.
Section 3.15. REO Property.
(a) In the event the Trust Fund acquires ownership of any REO
Property in respect of any related Mortgage Loan, the deed or certificate of
sale shall be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Sale and Servicing Agreement, cause the applicable Servicer to sell,
any REO Property as expeditiously as possible and in accordance with the
provisions of this Agreement and the related Sale and Servicing Agreement, as
applicable. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall cause the applicable Servicer to protect and conserve, such REO
Property in the manner and to the extent required by the applicable Sale and
Servicing Agreement, subject to the REMIC Provisions.
(b) The Master Servicer shall, to the extent required by the related
Sale and Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
(d) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the Master Servicer and the applicable Servicer
as provided above shall be deposited in the Protected Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the Master Servicer for deposit
into the related Collection Account.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall enforce the obligation of the related
Servicer to dispose of such Mortgaged Property prior to the close of the third
calendar year after the year in which the Trust Fund acquires such Mortgaged
Property unless the Servicer shall have applied for and received an extension of
such period from the Internal Revenue Service, in which case the Trust Fund may
continue to hold such Mortgaged Property for the period of such extension.
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used for the production of income by or on behalf of the Trust Fund
in such a manner or pursuant to any terms that would (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
section 860G(a)(8) of the Code or (ii) subject any REMIC hereunder to the
imposition of any federal, state or local income taxes on the income earned from
such Mortgaged Property under Section 860G(c) of the Code or otherwise, unless
the Master Servicer or related Servicer, as applicable, has agreed to indemnify
and hold harmless the Trust Fund with respect to the imposition of any such
taxes.
In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of a
deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer will cause the applicable Servicer to comply
with the provisions of Treasury Regulation Section 1.1445-2(d)(3) (or any
successor thereto) necessary to assure that no withholding tax obligation arises
with respect to the proceeds of such foreclosure except to the extent, if any,
that proceeds of such foreclosure are required to be remitted to the obligors on
such Mortgage Loan.
Section 3.16. Due-on-Sale Clauses; Assumption Agreements.
To the extent provided in the applicable Sale and Servicing
Agreement, to the extent Mortgage Loans contain enforceable due-on-sale clauses,
the Master Servicer shall cause the Servicers to enforce such clauses in
accordance with the applicable Sale and Servicing Agreement. If applicable law
prohibits the enforcement of a due-on-sale clause or such clause is otherwise
not enforced in accordance with the applicable Sale and Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may be
released from liability in accordance with the applicable Sale and Servicing
Agreement.
Section 3.17. Trustee to Cooperate; Release of Mortgage Files.
Upon (i) the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, or (ii) otherwise in connection with the
servicing of any Mortgage Loan, the Master Servicer will, upon receipt of
notification from the related Servicer pursuant to the applicable Sale and
Servicing Agreement, release the related Mortgage File to the related Servicer.
Upon notification, the Trustee shall at the Master Servicer's direction execute
and deliver to the Master Servicer the request for reconveyance, deed of
reconveyance or release or satisfaction of mortgage or such instrument releasing
the lien of the Mortgage in each case provided by the Master Servicer, together
with the Mortgage Note with written evidence of cancellation thereon. Expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor.
If the Master Servicer or any related Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement or the Sale and Servicing Agreement, the Master
Servicer or any related Servicer shall deliver or cause to be delivered to the
Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity.
Section 3.18. Documents Records and Funds in Possession of Master
Servicer to Be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall place within the Mortgage File and shall cause each Servicer to
transmit to the Master Servicer as required by this Agreement and the related
Sale and Servicing Agreement all documents and instruments in respect of a
Mortgage Loan coming into the possession of the Master Servicer or related
Servicer from time to time and shall account fully to the Trustee for any funds
received by the Master Servicer or related Servicer or which otherwise are
collected by the Master Servicer or related Servicer as Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control of, the Master Servicer or related
Servicer in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds, including but not
limited to, any funds on deposit in the Collection Account or any Protected
Account, shall be held by the Master Servicer or the related Servicer for and on
behalf of the Trustee and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement and the
related Sale and Servicing Agreement. The Master Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that are
deposited in the Collection Account, Distribution Account or any Escrow Account,
or any funds that otherwise are or may become due or payable to the Trustee for
the benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Master Servicer shall be entitled to set off against and deduct from
any such funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
Section 3.19. Master Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer
shall be entitled to (i) retain or withdraw from the Collection Account and the
Distribution Account an amount equal to all investment income gained on amounts
held in the Collection Account and the Distribution Account and (ii) the Master
Servicing Fee.
Section 3.20. Access to Certain Documentation.
The Master Servicer shall provide and cause each Servicer to provide
in accordance with the related Sale and Servicing Agreement to the OTS and the
FDIC and to comparable regulatory authorities supervising Holders of Junior
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Such access shall be
afforded without charge, but only upon reasonable and prior written request and
during normal business hours at the offices designated by the Master Servicer
and the related Servicer. Nothing in this Section shall limit the obligation of
the Master Servicer and the related Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Master Servicer or the related Servicer to provide access as provided in
this Section as a result of such obligation shall not constitute a breach of
this Section. In fulfilling such requests, the Master Servicer shall not be
responsible to determine the sufficiency of such information.
Section 3.21. Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor, each Rating
Agency and the Trustee on or before 120 days after the end of the Master
Servicer's fiscal year, commencing with its 2002 fiscal year ending on December
31, 2002, an Officer's Certificate, signed by two officers of the Master
Servicer, stating, as to the signers thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year and of the
performance of the Master Servicer under this Agreement has been made under such
officers' supervision and (ii) to the best of such officers' knowledge, based on
such review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
Section 3.22. Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before 120 days after the end of the Master Servicer's fiscal
year, commencing with its 2002 fiscal year, if the Master Servicer has, during
the course of any fiscal year, directly serviced any Mortgage Loan, then at its
expense shall cause a nationally or regionally recognized firm of independent
public accountants (who may also render other services to the Master Servicer,
the Depositor, the Trustee or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Trustee and the Depositor to the effect that-such firm has examined certain
documents and records relating to the servicing of the Mortgage Loans under this
Agreement or of mortgage loans under pooling and servicing agreements
substantially similar to this Agreement (such statement to have attached thereto
a schedule setting forth the pooling and servicing agreements covered thereby)
and that, on the basis of such examination, conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
the Audit Program for Mortgages serviced for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac, such
servicing has been conducted in compliance with such pooling and servicing
agreements except for such significant exceptions or errors in records that, in
the opinion of such firm, the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages serviced for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
Mac requires it to report. Copies of such statement shall be provided by the
Trustee to any Certificateholder upon request at the Master Servicer's expense,
provided such statement is delivered by the Master Servicer to the Trustee.
Section 3.23. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall for so long as it acts as Master Servicer
under this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
Master Servicer hereunder and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies shall be in such form and
such amount generally acceptable for entities serving as master servicer. In the
event that any such policy or bond ceases to be in effect, the Master Servicer
shall obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
ARTICLE IV
DISTRIBUTIONS AND SERVICING ADVANCES
Section 4.01. Advances.
The Master Servicer shall determine on or before each Servicer
Advance Date whether a Servicer or it is required to make an Advance pursuant to
the definition thereof. If the Master Servicer determines a Servicer or it is
required to make an Advance, it shall, on or before the Servicer Advance Date,
either (i) cause the related Servicer to make the Advance pursuant to the terms
of the applicable Sale and Servicing Agreement, (ii) deposit into the Collection
Account an amount equal to the Advance or (iii) make an appropriate entry in its
records relating to the Collection Account that any Amount Held for Future
Distribution has been used by the Master Servicer in discharge of its obligation
to make any such Advance. Any funds so applied shall be replaced by the Master
Servicer by deposit in the Collection Account no later than the close of
business on the next Servicer Advance Date. The Master Servicer shall be
entitled to be reimbursed from the Collection Account for all Advances of its
own funds made pursuant to this Section as provided in Section 3.07. The
obligation to make Advances with respect to any Mortgage Loan shall continue if
such Mortgage Loan has been foreclosed or otherwise terminated and the related
Mortgaged Property has not been liquidated.
The Master Servicer shall deliver to the Trustee on the related
Servicer Advance Date an Officer's Certificate of a Master Servicing Officer
indicating the amount of any proposed Advance determined by the Master Servicer
to be a Nonrecoverable Advance and detailing the reasons for such determination.
Section 4.02. Priorities of Distribution.
(a) On each Distribution Date, the Trustee shall withdraw the
Available Funds from the Distribution Account and, pursuant to instruction
received from the Master Servicer as set forth in Section 4.04(a), upon which it
may conclusively rely, apply such funds, first to distributions in respect of
the Lower-Tier REMIC Regular Interests, as provided in Section 4.02(e), and then
to distributions on the Certificates in the following order and priority and, in
each case, to the extent of Available Funds remaining:
(i) (Reserved);
(ii) to each Class of Senior Certificates, an amount allocable to
interest equal to the related Accrued Certificate Interest, any shortfall
being allocated among such Classes in proportion to the amount of the
Accrued Certificate Interest that would have been distributed in the
absence of such shortfall;
(iii) (Reserved);
(iv) to each Class of Senior Certificates (other than the Class A-3
Certificates), in accordance with the following priorities:
(x) on each Distribution Date prior to the Cross-Over Date,
the Formula Principal Amount, up to the amount of the Senior Optimal
Principal Amount for such Distribution Date, will be distributed,
pro rata, to the Class A-R and Class A-LR Certificates until their
respective Class Principal Balances are reduced to zero;
(y) on each Distribution Date prior to the Cross-Over Date,
the Formula Principal Amount, up to the amount of the Senior Optimal
Principal Amount for such Distribution Date, will be distributed,
pro rata, to the Class A-1 and Class A-2 Certificates until their
respective Class Principal Balances are reduced to zero;
(v) to each Class of Junior Certificates, subject to paragraph (d)
below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Accrued Certificate Interest for such Class
for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Allocable Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Accrued Certificate Interest for such Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Allocable Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the amount of the Accrued Certificate Interest for
such Class for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Allocable Share for such Distribution Date
until the Class Principal Balance thereof has been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the amount of the Accrued Certificate Interest for
such Class for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Allocable Share for such Distribution Date
until the Class Principal Balance thereof has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Accrued Certificate Interest for such Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Allocable Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Accrued Certificate Interest for such Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Allocable Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero; and
(vi) to the Class A-R Certificate, any remaining funds in the
Upper-Tier REMIC and to the Class A-LR Certificate, any remaining funds in
the Lower-Tier REMIC.
Pro rata distributions among classes of certificates will be made in
proportion to the then current Certificate Principal Balances of the classes.
(b) On each Distribution Date on or after the Cross-Over Date,
notwithstanding the allocation and priority set forth in Section 4.02(a)(iv),
the portion of Available Funds available to be distributed as principal to the
Senior Certificates (other than the Class A-3 Certificates) shall be distributed
concurrently, as principal, on such Classes, pro rata, on the basis of their
respective Class Principal Balances, until the Class Principal Balances thereof
are reduced to zero.
(c) On each Distribution Date, the amount referred to in clause (i)
of the definition of Accrued Certificate Interest for each Class of Certificates
for such Distribution Date shall be reduced by (i) the related Class' pro rata
share of Net Prepayment Interest Shortfalls based on such Class' Accrued
Certificate Interest for such Distribution Date without taking into account such
Net Prepayment Interest Shortfalls and (ii) the related Class' pro rata share of
(A) after the Special Hazard Coverage Termination Date, with respect to each
Mortgage Loan that became a Special Hazard Mortgage Loan during the calendar
month preceding the month of such Distribution Date, the excess of one month's
interest at the related Net Mortgage Rate on the Scheduled Principal Balance of
such Mortgage Loan as of the Due Date in such month over the amount of
Liquidation Proceeds applied as interest on such Mortgage Loan with respect to
such month, (B) after the Bankruptcy Coverage Termination Date, with respect to
each Mortgage Loan that became subject to a Bankruptcy Loss during the calendar
month preceding the month of such Distribution Date, the interest portion of the
related Debt Service Reduction or Deficient Valuation, (C) each Relief Act
Reduction incurred during the calendar month preceding the month of such
Distribution Date and (D) after the Fraud Loss Coverage Termination Date, with
respect to each Mortgage Loan that became a Fraud Loan during the calendar month
preceding the month of such Distribution Date, the excess of one month's
interest at the related Net Mortgage Rate on the Scheduled Principal Balance of
such Mortgage Loan as of the Due Date in such month over the amount of
Liquidation Proceeds applied as interest on such Mortgage Loan with respect to
such month.
(d) Notwithstanding the priority and allocation contained in Section
4.02(a)(vi), if with respect to any Class of Class B Certificates on any
Distribution Date, (i) such Class has not satisfied the Class Prepayment
Distribution Trigger, no distribution of amounts pursuant to clauses (ii) and
(iii) of the definition of Junior Optimal Principal Amount will be made to any
such Classes (the "Restricted Classes") and the amount of such amounts pursuant
to clauses (ii) and (iii) of the definition of Junior Optimal Principal Amount
otherwise distributable to the Restricted Classes shall be distributed to any
Classes of Junior Certificates, which are not Restricted Classes, having lower
numerical Class designations than such Class, pro rata, based on their
respective Class Principal Balances immediately prior to such Distribution Date
and shall be distributed in the sequential order provided in Section 4.02(a)(v);
provided, however, that if all of the Junior Certificates are Restricted
Classes, then such amounts shall be distributed to the most senior Class of
Junior Certificates outstanding and (ii) such Class has not satisfied the Two
Times Test, the Classes of Junior Certificates that have higher numerical
designations shall receive, in respect of clauses (ii) and (iii) of the
definition of Junior Optimal Principal Amount, an amount equal to the product of
(i) their pro rata shares (based on the Certificate Principal Balances of all
Junior Certificates that are entitled to receive principal distributions on such
date) and (ii) the percentages set forth in the following table:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
-------------------------------------- ------------------------
March 2002 through February 2012...... 0%
March 2012 through February 2013...... 30%
March 2013 through February 2014...... 40%
March 2014 through February 2015...... 60%
March 2015 through February 2016...... 80%
After February 2016................... 100%
Each Class of Junior Certificates that received a full pro rata
share as described above will be allocated any remaining amount in respect of
clauses (ii) and (iii) of the definition of Junior Optimal Principal Amount, pro
rata (based on the Certificate Principal Balances of only those Junior
Certificates that received a full pro rata share).
(e) On each Distribution Date, Available Funds shall be applied to
distributions on the Lower-Tier REMIC Regular Interests, in each case in an
amount sufficient to make the distributions on the respective Corresponding
Classes of Certificates on such Distribution Date in accordance with the
provisions of Section 4.02(a).
The pass-through rate with respect to the Class A-L1 Interest, Class
A-L2 Interest, Class A-LUR Interest, Class B-L1 Interest, Class B-L2 Interest,
Class B-L3 Interest, Class B-L4 Interest, Class B-L5 Interest and Class B-L6
Interest shall be the weighted average of the Net Mortgage Rates on the Mortgage
Loans, weighted on the basis of their respective Principal Balances, as of the
first day of the related Interest Accrual Period (after taking into account
scheduled payments of principal on such date).
As of any date, the principal balance of each Lower-Tier REMIC
Regular Interest shall equal the Class Principal Balance of the respective
Corresponding Class or Classes of Certificates. The initial principal balance of
each Lower-Tier REMIC Regular Interest shall equal the initial Class Principal
Balance of the respective Corresponding Class or Classes of Certificates set
forth in the definition thereof. Class Unpaid Interest Amounts, Realized Losses,
Fraud Losses, Special Hazard Losses, Bankruptcy Losses and Excess Losses shall
be allocated to the Lower-Tier REMIC Regular Interests in the same manner as
they are allocated to the Corresponding Class or Classes of Certificates
pursuant to Section 4.03.
Section 4.03. Allocation of Realized Losses.
(a) On or prior to each Distribution Date, the Master Servicer shall
determine the total amount of Realized Losses, including Excess Losses.
Realized Losses with respect to any Distribution Date shall be
allocated as follows:
(1) any Realized Loss, other than an Excess Loss, shall be
allocated first to the Junior Certificates in reverse order of their
respective numerical Class designations (beginning with the Class of
Junior Certificates then outstanding with the highest numerical Class
designation) until the respective Class Principal Balance of each such
Class is reduced to zero, and second to the Senior Certificates (other
than the Class A-3 Certificates), pro rata on the basis of their
respective Class Principal Balances immediately prior to the related
Distribution Date; and
(2) any Excess Losses shall be allocated to the Senior
Certificates (other than the Class A-3 Certificates) and the Junior
Certificates then outstanding, pro rata, on the basis of their respective
Class Principal Balances.
(b) The Class Principal Balance of the Class of Junior Certificates
then outstanding with the highest numerical Class designation shall be reduced
on each Distribution Date by the amount, if any, by which the aggregate of the
Class Principal Balances of all outstanding Classes of Certificates (after
giving effect to the distribution of principal and the allocation of Realized
Losses on such Distribution Date) exceeds the Pool Principal Balance for the
following Distribution Date.
(c) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant to
Section 4.03(a) above shall be allocated among the Certificates of such Class in
proportion to their respective Certificate Principal Balances.
(d) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Principal Balance of a Certificate, pursuant to
Section 4.03(a) above shall be accomplished by reducing the Certificate
Principal Balance thereof, as applicable, immediately following the
distributions made on the related Distribution Date in accordance with the
definition of "Certificate Principal Balance" herein; provided that no Realized
Loss shall be allocated to reduce the Certificate Principal Balance of a
Certificate to the extent that such allocation would reduce the aggregate
Certificate Principal Balance of all classes of Certificates to an amount less
than the Scheduled Principal Balance of all Outstanding Mortgage Loans as of the
Due Date occurring in the month of such Distribution Date, less any Deficiency
Valuations occurring before the Bankruptcy Loss Coverage Termination Date (such
limitation, the "Loss Allocation Limitation").
Section 4.04. Monthly Statements to Certificateholders.
(a) Not later than two Business Days prior to each Distribution
Date, the Master Servicer shall prepare and make available to the Trustee and
not later than each Distribution Date, the Master Servicer shall make available
to each Certificateholder, the Depositor and any other interested parties a
statement based solely on information provided by each Servicer setting forth
the following information with respect to the related distribution (in the case
of information furnished pursuant to (i), (ii) and (vii) below, the amounts
shall be expressed as a dollar amount per minimum denomination Certificate, such
minimum denominations being as set forth in the Preliminary Statement):
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Class Unpaid
Interest Shortfall included in such distribution and any remaining Class
Unpaid Interest Shortfall after giving effect to such distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Certificate Principal Balance as a dollar amount per
minimum denomination Certificate and the Class Principal Balance or
Notional Amount of each Class of Certificates, after giving effect to the
distribution of principal on such Distribution Date;
(v) the Pool Principal Balance on such Distribution Date;
(vi) the Senior Percentage and Junior Percentage;
(vii) the amount of the Servicing Fees paid to or retained by the
Master Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(x) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure) (1) 1 to 30 days
(2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more days and (B) in
foreclosure and delinquent (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90
days and (4) 91 or more days, as of the close of business on the last day
of the calendar month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Scheduled
Principal Balance of such Mortgage Loan as of the close of business on the
last Business Day of the calendar month preceding such Distribution Date
and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the calendar month preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month; and
(xv) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as
of the related Determination Date.
Upon receipt from the Master Servicer, the Trustee shall make such statement
available on its website located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇.
(b) The Master Servicer's responsibility for disbursing the above
information to the Trustee, Depositor, Certificateholders and other interested
parties is limited to the availability, timeliness and the accuracy of the
information provided by each Servicer. The Master Servicer will make a copy of
each statement provided pursuant to this Section 4.04 (and, at its option, any
additional files containing the same information in an alternative format)
available each month to Certificateholders and other interested parties, and
other parties to this Agreement via the Master Servicer's internet website
located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the internet website can be
obtained by calling the Master Servicer's customer service desk at (301)
815-6600. Parties that are unable to use the above distribution method are
entitled to have a paper copy mailed to them via first class mail by calling the
customer service desk and indicating such. The Master Servicer, with the consent
of the Trustee, which consent shall not be unreasonably withheld, shall have the
right to change the way distribution date statement is distributed in order to
make such distribution more convenient and/or more accessible and the Master
Servicer shall provide timely and adequate notification to the
Certificateholders and the parties to this Agreement regarding any such changes.
The Master Servicer shall also be entitled to rely on but shall not
be responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Monthly Statement and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
As a condition to access the Master Servicer's internet website, the
Master Servicer may require registration and the acceptance of a disclaimer. The
Master Servicer will not be liable for the dissemination of information in
accordance with this Agreement.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished upon request to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(i), (a)(ii) and
(a)(vii) of this Section 4.04 aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time in effect.
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must be in
excess of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
Subject to Section 9.02 hereof respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at a
bank or other entity having appropriate facilities therefor, if (i) such Holder
has so notified the Trustee in writing at least five Business Days prior to the
related Record Date and (ii) such Holder shall hold (A) a Class A-3 Certificate,
(B) 100% of the Class Principal Balance of any Class of Certificates or (C)
Certificates of any Class with aggregate principal Denominations of not less
than $1,000,000 or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the countersignature and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.06 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In the
event that a transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee (other than the Depositor or an
affiliate of the Depositor) shall each certify to the Trustee in writing the
facts surrounding the transfer in substantially the forms set forth in Exhibit I
(the "Transferor Certificate") and (i) deliver a letter in substantially the
form of either Exhibit J (the "Investment Letter") or Exhibit K (the "Rule 144A
Letter") or (ii) there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made pursuant to an
exemption from the Securities Act. The Depositor shall provide to any Holder of
a Private Certificate and any prospective transferee designated by any such
Holder, information regarding the related Certificates and the Mortgage Loans
and such other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the Master
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor, to the extent in its possession, such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor,
and the Master Servicer against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made (other
than to the Depositor or an affiliate of the Depositor) unless the Trustee shall
have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(in the event such Certificate is a Private Certificate, such requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit J or Exhibit K), to the effect
that such transferee is not an employee benefit plan or arrangement subject to
Section 406 of ERISA or a plan or arrangement subject to Section 4975 of the
Code, or a plan or arrangement subject to any federal, state or local law
("Similar Law") materially similar to the foregoing provisions of ERISA or the
Code, nor a person acting on behalf of any such plan or arrangement, nor using
the assets of any such plan or arrangement to effect such transfer, (ii) in the
case of an ERISA-Restricted Certificate other than a Residual Certificate, if
the purchaser is an insurance company, a representation that the purchaser is an
insurance company which is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under PTCE 95-60 or (iii)
in the case of any ERISA-Restricted Certificate other than a Residual
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
or a plan or arrangement subject to Similar Law (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement, or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of either the Trustee or the Trust Fund,
addressed to the Trustee to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code or similar provisions of Similar Law and will
not subject the Trustee to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Private
Certificate, in the event the representation letter referred to in the preceding
sentence is not so furnished, such representation shall be deemed to have been
made to the Trustee by the transferee's (including an initial acquirer's)
acceptance of the ERISA-Restricted Certificates. Notwithstanding anything else
to the contrary herein, (a) any purported transfer of an ERISA-Restricted
Certificate, other than a Residual Certificate, to or on behalf of an employee
benefit plan subject to ERISA, the Code or Similar Law without the delivery to
the Trustee of an Opinion of Counsel satisfactory to the Trustee as described
above shall be void and of no effect and (b) any purported transfer of a
Residual Certificate to a transferee that does not make the representation in
clause (i) above shall be void and of no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee (other than the Depositor of an affiliate thereof) in the form
attached hereto as Exhibit H.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of
a Residual Certificate that was in fact not a Permitted Transferee at the
time it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee described in clauses (i) through (iv) of
the definition thereof.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Transferor or the Master Servicer, to the effect that the elimination of such
restrictions will not cause any REMIC hereunder to fail to qualify as a REMIC at
any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, (y) the Depositor at its option advises
the Trustee in writing that it elects to terminate the book-entry system through
the Depository or (z) after the occurrence of a Master Servicer Event of
Termination, Certificate Owners representing at least 51% of the Certificate
Principal Balance of the Book-Entry Certificates together advise the Trustee and
the Depository through the Depository Participants in writing that the
continuation of a book-entry system through the Depository is no longer in the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Master Servicer,
the Depositor nor the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee with an adequate
inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder; provided
that the Trustee shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the Depository.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Master Servicer and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04. Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master
Servicer or the Trustee may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Trustee nor any agent of the
Master Servicer or the Trustee shall be affected by any notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Master Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Master Servicer or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of such Trust Fund held by the Trustee, if any. The Depositor
and every Certificateholder, by receiving and holding a Certificate, agree that
the Trustee shall not be held accountable by reason of the disclosure of any
such information as to the list of the Certificateholders hereunder, regardless
of the source from which such information was derived.
Section 5.06. Maintenance of Office or Agency.
Certificates may be surrendered for registration of transfer or
exchange at the Corporate Trust Office. The Trustee will give prompt written
notice to the Certificateholders of any change in such location of any such
office or agency.
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor and the Master Servicer will each keep in full effect
its existence, rights and franchises as a corporation or limited partnership, as
the case may be, under the laws of the United States or under the laws of one of
the states thereof and will each obtain and preserve its qualification to do
business as a foreign corporation or legal entity, as the case may be, in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, or any of the Mortgage Loans and
to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of,
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Section 6.03. Limitation on Liability of the Depositor, the
Transferor, the Master Servicer and Others.
None of the Depositor, the Transferor, the Master Servicer or any of
the directors, officers, employees or agents of the Depositor, the Transferor or
the Master Servicer shall be under any liability to the 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 Transferor, the Master
Servicer or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Transferor, the Master Servicer
or any such Person from any liability which would otherwise be imposed by
reasons of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor, the Transferor, the Master Servicer and any director, officer,
employee or agent of the Depositor, the Transferor or the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Transferor, the Master Servicer and any director, officer, employee or agent
of the Depositor, the Transferor or the Master Servicer shall be indemnified by
the Trust Fund and held harmless against any loss, liability or expense incurred
in connection with (i) any audit, controversy or judicial proceeding relating to
a governmental taxing authority, (ii) the performance of its duties and
obligations and the exercise of its rights under this Agreement or the
Certificates, or (iii) any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall not be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Transferor or the Master Servicer shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that any of the Depositor, the Transferor or the
Master Servicer may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Transferor and the Master Servicer shall be
entitled to be reimbursed therefor out of the Collection Account.
Section 6.04. Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor master servicer
and receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates, without regard to the guaranty provided by the
Policies, or (b) upon determination that its duties hereunder are no longer
permissible under applicable law or (c) pursuant to Section 6.05. Any such
determination under clause (b) permitting the resignation of the Master Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee and in form and substance acceptable to the Trustee. No such resignation
shall become effective until the Trustee or a successor master servicer shall
have assumed the Master Servicer's responsibilities, duties, liabilities and
obligations hereunder.
Section 6.05. Sale and Assignment of Master Servicing Rights.
The Master Servicer may sell, assign or delegate its rights, duties
and obligations as Master Servicer under this Agreement in their entirety;
provided, however, that: (i) the purchaser or transferee accepting such sale,
assignment and delegation (a) shall be a Person qualified to servicing mortgage
loans for ▇▇▇▇▇▇ ▇▇▇ 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 Trustee (as evidenced
in a writing signed by Trustee); (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
master servicer under this Agreement and any custodial agreement from and after
the effective date of such assumption agreement; (ii) each Rating Agency shall
be given prior written notice of the identity of the proposed successor to the
Master Servicer and shall confirm in writing to the Master Servicer and the
Trustee that any such sale, assignment or delegation would not result in a
withdrawal or a downgrading of the rating on any Class of Certificates in effect
immediately prior to such sale, assignment; and (iii) the Master Servicer shall
deliver to the Trustee an Officer's Certificate and an Opinion of Independent
Counsel, each stating that all conditions precedent to such action under this
Agreement have been fulfilled and such action is permitted by and complies with
the terms of this Agreement. No such sale, assignment or delegation shall affect
any liability of the Master Servicer arising prior to the effective date
thereof.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
"Master Servicer Event of Termination," wherever used herein, means
any one of the following events:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure continues unremedied for a period of two
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 to the Master Servicer
and the Trustee by the Holders of Certificates evidencing Voting Rights
aggregating not less than 25% of the Certificates; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and
in effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or substantially all of its property; or
the Master Servicer admits in writing its inability to pay its debts
generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for
the benefit of its creditors, or voluntarily suspends payment of its
obligations; or
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Section 6.04.
In each and every such case, so long as such Event of Default with
respect to the Master Servicer shall not have been remedied, either the Trustee
or the Holders of Certificates evidencing Voting Rights aggregating not less
than 51% of the Certificates, by notice in writing to the Master Servicer (and
to the Trustee if given by such Certificateholders), with a copy to the Rating
Agencies, 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 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
7.02, automatically and without further action pass to and be vested in the
Trustee pursuant to this Section 7.01; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the Mortgage Files and all other property and amounts which are
then or should be part of the Trust or which thereafter become part of the
Trust; and (ii) originals or copies of all documents of the Master Servicer
reasonably requested by the Trustee to enable it to assume the Master Servicer's
duties thereunder. In addition to any other amounts which are then, or,
notwithstanding the termination of its activities under this Agreement, may
become payable to the Master Servicer under this Agreement, the Master Servicer
shall be entitled to receive, out of any amount received on account of a
Mortgage Loan or related REO Property, that portion of such payments which it
would have received as reimbursement under this Agreement if notice of
termination had not been given. The termination of the rights and obligations of
the Master Servicer shall not affect any obligations incurred by the Master
Servicer prior to such termination.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of any
late collection of a Scheduled Payment on a Mortgage Loan which was due prior to
the notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3.10(a)(i)
through (viii),and any other amounts payable to such Master Servicer hereunder
the entitlement to which arose prior to the termination of its activities
hereunder.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 hereof, the Trustee shall, subject to and
to the extent provided in Section 3.05, be the successor to the Master Servicer
in its capacity as Master Servicer under this Agreement and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof and applicable law including the obligation to make
Advances pursuant to Section 4.01. As compensation therefor, the Trustee shall
be entitled to investment income of all funds that the Master Servicer would
have been entitled to on deposit in the Collection Account or Distribution
Account if the Master Servicer had continued to act hereunder. Notwithstanding
the foregoing, if the Trustee has become the successor to the Master Servicer in
accordance with Section 7.01 hereof, the Trustee may, if it shall be unwilling
to so act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 hereof or if it is otherwise unable to so act, or if it
has been requested in writing by Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates to do so, appoint,
or petition a court of competent jurisdiction to appoint, any established
mortgage loan servicing institution the appointment of which does not adversely
affect the then current rating of the Certificates by each Rating Agency as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder.
Any successor to the Master Servicer shall be an institution which is a ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, and which is willing to master service the
Mortgage Loans and executes and delivers to the Depositor and the Trustee an
agreement accepting such delegation and assignment, which contains an assumption
by such Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer (other than liabilities of the Master
Servicer under Section 6.03 hereof incurred prior to termination of the Master
Servicer under Section 7.01), with like effect as if originally named as a party
to this Agreement; and provided further that each Rating Agency acknowledges
that its rating of the Certificates in effect immediately prior to such
assignment and delegation will not be qualified or reduced, without regard to
the guaranty provided by the Policies, as a result of such assignment and
delegation. Pending appointment of a successor to the Master Servicer hereunder,
the Trustee, unless the Trustee is prohibited by law from so acting, shall,
subject to Section 3.05 hereof, act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on Mortgage Loans as it and such successor master servicer shall agree;
provided, however, that no such compensation shall be in excess of the
compensation permitted the Master Servicer hereunder. The Trustee and such
successor master servicer shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither the
Trustee nor any other successor master servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
Any successor master servicer as Master Servicer shall give notice
to the Servicers of such change of master servicer and shall, during the term of
its service as master servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 3.11.
The Trustee or successor master servicer shall be entitled to be
reimbursed from the Master Servicer for all costs associated with the transfer
of master servicing from the predecessor master servicer, including, without
limitation, any costs or expenses (including but not limited to personnel time)
associated with the complete transfer of all master servicing data and the
completion, correction or manipulation of such master servicing data as may be
required by the Trustee or successor master servicer to correct any errors or
insufficiencies in the master servicing data or otherwise to enable the Trustee
or successor master servicer to master service the Mortgage Loans properly and
effectively. If the Master Servicer does not pay such reimbursement within
thirty (30) days of its receipt of an invoice therefor, such reimbursement shall
be an expense of the Trust and the Trustee shall be entitled to withdraw such
reimbursement from amounts on deposit in the Distribution Account pursuant to
Section 3.10(b)(iv); provided that the Master Servicer shall reimburse the Trust
for any such expense incurred by the Trust.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Master Servicer Event
of Termination, the Trustee shall transmit by mail to all Certificateholders
notice of each such Master Servicer Event of Termination hereunder known to the
Trustee, unless such Master Servicer Event of Termination shall have been cured
or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE MASTER SERVICER
Section 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of a Master Servicer Event of
Termination and after the curing or waiver of all Master Servicer Events of
Termination that may have occurred, shall undertake to perform such duties and
only such duties as are specifically set forth in this Agreement. In case a
Master Servicer Event of Termination has occurred and remains uncured or
unwaived, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument. If
any such instrument is found not to conform in any material respect to the
requirements of this Agreement, the Trustee shall notify the Certificateholders
of such non-conforming instrument in the event the Trustee, after so requesting,
does not receive a satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) unless a Master Servicer Event of Termination has occurred, the
Trustee has actual knowledge of shall have occurred and be continuing, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement which it believed in good faith to be genuine and to have
been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be finally proven that the Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates evidencing not less than 25%
of the Voting Rights of Certificates relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising or omitting to exercise any trust or power
conferred upon the Trustee under this Agreement; and
(iv) Subject to Section 7.02, the Trustee shall not be accountable,
shall have no liability and makes no representation as to any acts or
omissions hereunder of the Master Servicer until such time as the Trustee
may be required to act as Master Servicer pursuant to Section 7.02 and
thereupon only for the acts or omissions of the Trustee as successor
Master Servicer.
Section 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties and the Trustee
shall have no responsibility to ascertain or confirm the genuineness of
any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) prior to the occurrence of a Master Servicer Event of
Termination and after the curing or waiver of all Master Servicer Events
of Termination which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition to
so proceeding. The reasonable expense of every such examination shall be
paid by the Master Servicer or, if paid by the Trustee, shall be
reimbursed by the Master Servicer upon demand. Nothing in this clause (iv)
shall derogate from the obligation of the Master Servicer to observe any
applicable law prohibiting disclosure of information regarding the
Mortgagors;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or
custodian appointed by the Trustee with due care;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers hereunder
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not assured
to it, and none of the provisions contained in this Agreement shall in any
event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, the Master Servicer in accordance with the terms of this Agreement;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the
investment security);
(viii) the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Termination until a Responsible Officer of the Trustee
obtains actual knowledge of such failure or the Trustee receives written
notice of such failure from the Master Servicer or the holders of
Certificates evidencing not less than 25% of the Voting Rights of
Certificates. In the absence of such receipt of such notice, the Trustee
may conclusively assume that there is no Master Servicer Event of
Termination; and
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which may be
incurred therein or thereby.
The Trustee shall have no duty (A) to see to any recording, filing,
or depositing of this Agreement or any agreement referred to herein or any
financing statement or continuation statement evidencing a security interest, or
to see to the maintenance of any such recording or filing or depositing or to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance or (C) to see to the payment or discharge of any tax, assessment, or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Distribution Account.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or the Transferor, as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Trustee's execution and counter-signature of the Certificates. The
Trustee shall not be accountable for the use or application by the Depositor or
the Master Servicer of any funds paid to the Depositor or the Master Servicer in
respect of the Mortgage Loans or deposited in or withdrawn from the Collection
Account by the Depositor or the Master Servicer.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Trustee.
Section 8.05. Trustee's Fees and Expenses.
The Trustee shall be compensated as separately agreed with the
Master Servicer. The Trustee and any director, officer, employee, agent or
"control person" within the meaning of the Securities Act of 1933, as amended,
and the Securities Exchange of 1934, as amended ("Control Person") of the
Trustee shall be indemnified by the Trust and held harmless against any loss,
liability or expense (including reasonable attorney's fees) (i) incurred in
connection with any claim or legal action relating to (a) this Agreement or (b)
the Certificates, (ii) incurred in connection with the performance of any of the
Trustee's duties hereunder, other than any loss, liability or expense (x)
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder, (y) incurred by reason of
any action of the Trustee taken at the direction of the Certificateholders, or
(z) which would not constitute an "unanticipated expense incurred by the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii) and (iii)
resulting from any error in any tax or information return prepared by the Master
Servicer. Such indemnity shall survive the termination of this Agreement or the
resignation or removal of the Trustee hereunder. Without limiting the foregoing,
and except for any such expense, disbursement or advance as may arise from the
Trustee's negligence, bad faith or willful misconduct, or which would not be an
"unanticipated expense" within the meaning of the second preceding sentence, the
Trustee shall be reimbursed by the Trust for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Agreement with respect to: (A) the reasonable
compensation and the expenses and disbursements of its counsel not associated
with the closing of the issuance of the Certificates, (B) the reasonable
compensation, expenses and disbursements of any accountant, engineer, appraiser
or other agent that is not regularly employed by the Trustee, to the extent that
the Trustee must engage such Persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph from
amounts on deposit from time to time in the Distribution Account.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07 hereof. The entity serving
as Trustee may have normal banking and trust relationships with the Depositor
and its affiliates or the Master Servicer and its affiliates; provided, however,
that such entity cannot be an affiliate of the Master Servicer other than the
Trustee in its role as successor to the Master Servicer.
Section 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor and the
Master Servicer and each Rating Agency not less than 60 days before the date
specified in such notice when, subject to Section 8.08, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor or the Servicer may
remove the Trustee and appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee, one
copy of which shall be delivered to the Master Servicer and one copy to the
successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered by the successor Trustee to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor so
appointed. Notice of any removal of the Trustee shall be given to each Rating
Agency by the Successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08 hereof.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Master Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 hereof and its appointment
shall not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09. Merger or Consolidation of Trustee.
Any corporation or other entity into which the Trustee may be merged
or converted or with which it may be consolidated or any corporation or other
entity resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or other entity succeeding to the
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation or other entity shall be eligible under the
provisions of Section 8.06 hereof without the execution or filing of any paper
or further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case a Master Servicer Event of
Termination shall have occurred and be continuing, the Trustee alone shall have
the power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee (as
successor master servicer) and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder and such appointment
shall not, and shall not be deemed to, constitute any such separate
trustee or co-trustee as agent of the Trustee; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC
election is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Master Servicer covenants and agrees that it shall act as
agent (and the Master Servicer is hereby appointed to act as agent) on behalf of
such REMIC and that in such capacity it shall: (a) prepare, submit to the
Trustee for execution, and file, or cause to be prepared and filed, in a timely
manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax Return (Form
1066 or any successor form adopted by the Internal Revenue Service) and prepare
and file or cause to be prepared and filed with the Internal Revenue Service and
applicable state or local tax authorities income tax or information returns for
each taxable year with respect to such REMIC, containing such information and at
the times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby, including without limitation, the
calculation of any original issue discount using the Prepayment Assumption; (b)
apply for an Employee Identification Number from the Internal Revenue Service
via Form SS-4 or other acceptable method for such REMIC and within thirty days
of the Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c) make or
cause to be made elections that such assets be treated as a REMIC on the federal
tax return for its first taxable year (and, if necessary, under applicable state
law); (d) provide information necessary for the computation of tax imposed on
the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee described in clauses (i)-(iv) of the definition thereof, or an agent
(including a broker, nominee or other middleman) of a non-Permitted Transferee
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax); (e) to the extent that they are under its
control, conduct matters relating to the Upper-Tier REMIC and the Lower-Tier
REMIC at all times that any Certificates are outstanding so as to maintain the
status of each as a REMIC under the REMIC Provisions; (f) not knowingly or
intentionally take any action or omit to take any action that would cause the
termination of the REMIC status of the Upper-Tier REMIC or the Lower-Tier REMIC;
(g) not permit the creation of any interests in the Lower-Tier REMIC other than
the Lower-Tier REMIC Regular Interests and the Class A-LR Certificates or in the
Upper-Tier REMIC other than the Certificates (other than the Class A-LR
Certificates); (h) not receive any amount representing a fee or other
compensation for services (except as otherwise permitted by this Agreement); (i)
receive any income attributable to any asset which is neither a "qualified
mortgage" nor a "permitted investment" within the meaning of the REMIC
Provisions; (j) not receive any contributions to either REMIC after the Startup
Day that would be subject to tax under Section 860G(d) of the Code; (k) not
dispose of any assets of either REMIC at a gain if such disposition would be a
"prohibited transaction" within the meaning of Section 860F(a)(2) of the Code;
(l) pay, from the sources specified in the last paragraph of this Section 8.11,
the amount of any federal or state tax, including prohibited transaction taxes
as described below, imposed on such REMIC prior to its termination when and as
the same shall be due and payable (but such obligation shall not prevent the
Master Servicer or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Master Servicer from causing
the withholding of payment of such tax, if permitted by law, pending the outcome
of such proceedings); (m) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other Person as may
be required to sign such returns by the Code or state or local laws, regulations
or rules; and (n) maintain records relating to such REMIC, including but not
limited to the income, expenses, assets and liabilities thereof and the adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information. The Holder of the largest Percentage Interest of the Class A-R
Certificates shall act as "tax matters person" for the Upper-Tier REMIC within
the meaning of Treasury Regulations Section 1.860F-4(d), and the Master Servicer
is hereby designated as agent of such Class A-R Certificateholder for such
purpose (or if the Master Servicer is not so permitted, such Holder shall be the
tax matters person in accordance with the REMIC Provisions). The Holder of the
largest Percentage Interest of the Class A-LR Certificates shall act as "tax
matters person" for the Lower-Tier REMIC within the meaning of Treasury
Regulations Section 1.860F-4(d), and the Master Servicer is hereby designated as
agent of such Class A-LR Certificateholder for such purpose (or if the Master
Servicer is not so permitted, such Holder shall be the tax matters person in
accordance with the REMIC Provisions). In such capacity, the Master Servicer
shall, as and when necessary and appropriate, represent the related REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of such REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of such REMIC, and otherwise act on behalf of such REMIC in relation to
any tax matter or controversy involving it.
In order to enable the Master Servicer to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Master Servicer within ten (10) days after the Closing Date all information or
data that the Master Servicer requests in writing and determines to be relevant
for tax purposes to the valuations and offering prices of the Certificates,
including, without limitation, the price, yield, prepayment assumption and
projected cash flows of the Certificates and the Mortgage Loans. Thereafter, the
Depositor shall provide to the Master Servicer promptly upon written request
therefor, any such additional information or data that the Master Servicer may,
from time to time, reasonably request in order to enable the Master Servicer to
perform its duties as set forth herein. The Depositor hereby indemnifies the
Master Servicer for any losses, liabilities, damages, claims or expenses of the
Master Servicer arising from any errors or miscalculations of the Master
Servicer that result from any failure of the Depositor to provide, or to cause
to be provided, accurate information or data to the Master Servicer on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of
the REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the REMIC as defined in Section 860G(c) of the Code, on
any contribution to the REMIC after the Startup Day pursuant to Section 860G(d)
of the Code, or any other tax is imposed, if not paid as otherwise provided for
herein, such tax shall be paid by (i) the Master Servicer or the Trustee,
respectively, if any such other tax arises out of or results from a breach by
the Master Servicer or the Trustee, respectively, of any of its obligations
under this Agreement, (ii) the Transferor, if any such tax arises out of or
results from the Transferor's obligation to repurchase a Mortgage Loan pursuant
to Section 2.02 or 2.03 or (iii) in all other cases, or in the event that the
Trustee, the Master Servicer or the Transferor fails to honor its obligations
under the preceding clauses (i), (ii), or (iii) any such tax will be paid with
amounts otherwise to be distributed to the Certificateholders, as provided in
Section 3.10(b).
Section 8.12. Periodic Filings.
Within 15 days after each Distribution, the Master Servicer shall,
in accordance with industry standards, file with the Commission via the
Electronic Data Gathering and Retrieval System (▇▇▇▇▇), a Form 8-K with a copy
of the Monthly Statement for such Distribution Date as an exhibit thereto. Prior
to January 30, 2003, the Master Servicer shall, in accordance with industry
standards, file a Form 15 Suspension Notification with respect to the Trust
Fund, if applicable. Prior to March 30, 2003, the Master Servicer shall file a
Form 10-K, in substance conforming to industry standards, with respect to the
Trust Fund. The Depositor hereby grants to the Master Servicer a limited power
of attorney to execute and file each such document on behalf of the Depositor.
Such power of attorney shall continue until either the earlier of (i) receipt by
the Master Servicer from the Depositor of written termination of such power of
attorney and (ii) the termination of the Trust Fund. Each of the Depositor and
Trustee agrees to promptly furnish to the Master Servicer, 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 Master
Servicer reasonably deems appropriate to prepare and file all necessary reports
with the Commission. The Master Servicer shall have no responsibility to file
any items other than those specified in this section.
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of All
Mortgage Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Transferor, the Master Servicer and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (a) the
purchase by the Master Servicer of all Mortgage Loans (and REO Properties)
remaining in the Trust Fund at the price equal to the sum of (i) 100% of the
Scheduled Principal Balance of each Mortgage Loan (other than Mortgage Loans for
which the related Mortgaged Property has become REO Property) plus one month's
accrued interest thereon at the applicable Net Mortgage Rate and (ii) the lesser
of (x) the appraised value of any REO Property as determined by the higher of
two appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the Scheduled Principal
Balance of each Mortgage Loan related to any REO Property plus accrued and
unpaid interest thereon at the applicable Net Mortgage Rate and (b) the later of
(i) the maturity or other liquidation (or any Advance with respect thereto) of
the last Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no event shall
the trusts created hereby continue beyond the earlier of (i) the expiration of
21 years from the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
the late Ambassador of the United States to the Court of St. James's, living on
the date hereof and (ii) the Latest Possible Maturity Date. The right to
purchase all Mortgage Loans and REO Properties pursuant to clause (a) above
shall be conditioned upon the Pool Principal Balance, at the time of any such
repurchase, aggregating less than ten percent of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans.
Section 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Collection Account, the Master Servicer
shall direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 9.01, at least 20 days prior to the date
notice is to be mailed to the affected Certificateholders, the Master Servicer
shall notify the Depositor and the Trustee of the date the Master Servicer
intends to terminate the Trust Fund and of the applicable repurchase price of
the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 15th
day and no later than the 10th day of the month next preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Master Servicer will give such notice to each Rating Agency at
the time such notice is given to Certificateholders.
On the Distribution Date specified in clause (a) of the preceding
paragraph, the Trustee shall be deemed to make distributions to the Lower-Tier
REMIC Regular Interests in accordance with Section 4.02(e) and, upon
presentation and surrender of the Certificates, the Trustee shall cause to be
distributed to the Certificateholders of each Class, in the order set forth in
Section 4.02 hereof, on the final Distribution Date, in proportion to their
respective Percentage Interests, with respect to Certificateholders of the same
Class, an amount equal to (i) as to each Class of Regular Certificates, the
Certificate Principal Balance thereof plus (a) accrued interest thereon (or on
their Notional Amount, if applicable) and (ii) as to the Class A-R and Class
A-LR Certificates, the amount, if any, which remains on deposit in the
Distribution Account which are assets of the Upper-Tier REMIC and the Lower-Tier
REMIC, respectively (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take reasonable steps, or may appoint an agent to take reasonable steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class A-R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Upper-Tier REMIC which remain subject hereto and the Class
A-LR Certificateholders shall be entitled to all unclaimed funds and other
assets of the Lower-Tier REMIC which remain subject hereto.
Section 9.03. Additional Termination Requirements.
In the event the Master Servicer exercises its purchase option as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel, at the expense of the Master Servicer, to the effect that
the failure to comply with the requirements of this Section 9.03 will not (a)
result in the imposition of taxes on "prohibited transactions" on any REMIC as
defined in section 860F of the Code, or (b) cause any REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) The notice given by the Master Servicer under Section 9.02 shall
provide that such notice constitutes the adoption of a plan of complete
liquidation of the REMICs as of the date of such notice (or, if earlier,
the date on which the first such notice is mailed to Certificateholders).
The Trustee shall also specify such date in a statement attached to the
final tax return of the REMIC; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Trustee
shall sell all of the assets of the Trust Fund to the Master Servicer for
cash at the purchase price specified in Section 9.01 and shall distribute
such cash within 90 days of such adoption in the manner specified in
Section 9.01.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor,
the Transferor, the Master Servicer and the Trustee without the consent of any
of the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any defective provision herein or to supplement any provision herein which may
be inconsistent with any other provision herein, (iii) to add to the duties of
the Depositor, the Transferor, the Trustee or the Master Servicer, (iv) to add
any other provisions with respect to matters or questions arising hereunder or
(v) to modify, alter, amend, add to or rescind any of the terms or provisions
contained in this Agreement; provided that any action pursuant to clauses (iv)
or (v) above shall not, as evidenced by an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the party requesting the amendment, or if the
Trustee requests the amendment, the Trust Fund), adversely affect in any
material respect the interests of any Certificateholder; provided, however, that
the amendment shall not be deemed to adversely affect in any material respect
the interests of the Certificate holders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates; it being understood and agreed that any such letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Transferor, and the
Master Servicer also may at any time and from time to time amend this Agreement
without the consent of the Certificateholders to modify, eliminate or add to any
of its provisions to such extent as shall be necessary or helpful to (i)
maintain the qualification of any REMIC as a REMIC under the Code, (ii) avoid or
minimize the risk of the imposition of any tax on any REMIC pursuant to the Code
that would be a claim at any time prior to the final redemption of the
Certificates or (iii) comply with any other requirements of the Code, provided
that the Trustee has been provided an Opinion of Counsel, which opinion shall be
an expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that such action is
necessary or helpful to, as applicable, (i) maintain such qualification, (ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply with
any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Transferor, the Master Servicer and the Trustee with the consent
of the Holders of a Majority in Interest of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in the preceding clause (i), without the consent of the Holders of
Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating 66% or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any REMIC formed hereunder or the
Certificateholders or cause any such REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
Section 10.02. Recordation of Agreement; Counterparts.
This Agreement (or an abstract hereof, if acceptable to the
applicable recording office) is subject to recordation in all appropriate public
offices for real property records in all the towns or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee (acting at the written direction of a Majority in Interest of the
Certificateholders), but only upon direction accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance
of the Trust Fund by the Depositor to the Trustee be, and be construed as, an
absolute sale thereof to the Trustee. It is, further, not the intention of the
parties that such conveyance be deemed a pledge thereof by the Depositor to the
Trustee. However, in the event that, notwithstanding the intent of the parties,
such assets are held to be the property of the Depositor, or if for any other
reason this Agreement is held or deemed to create a security interest in such
assets, then (i) this Agreement shall be deemed to be a security agreement
within the meaning of the Uniform Commercial Code of the State of New York and
(ii) the conveyance provided for in this Agreement shall be deemed to be an
assignment and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets that constitute
the Trust Fund, whether now owned or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholder.
Section 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Master Servicer Event of Termination
that has not been cured;
3. The resignation or termination of the Master Servicer or the
Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
5. The final payment to Certificateholders.
In addition, the Master Servicer shall promptly furnish to each
Rating Agency copies of the following:
1. Each annual statement as to compliance described in Section
3.21;
2. Each annual independent public accountants' servicing report
described in Section 3.22; and
3. Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.02 or 2.03.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, Mortgage Asset Securitization Transactions, Inc., ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel,
(b) in the case of the Master Servicer, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., 11000
Broken Land Parkway, Columbia, Maryland 21044-3562 or such other address as may
be hereafter furnished to the Depositor and the Trustee by the Master Servicer
in writing, (c) in the case of the Trustee, the Corporate Trust Office,
Attention: MASTR Adjustable Rate Mortgages Trust 2002-1, or such other address
as the Trustee may hereafter furnish to the Depositor or Master Servicer, (d) in
the case of the Transferor, UBS Warburg Real Estate Securities Inc., ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel and (e) in
the case of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02 and this Section 10.07, this Agreement may not be
assigned by the Master Servicer without the prior written consent of the Trustee
and Depositor. Pursuant to Section 6.05, the Master Servicer shall be permitted
to pledge its rights as servicer hereunder to a lender provided that no such
pledge shall permit the termination of the Master Servicer as Master Servicer
unless a successor servicer meeting the requirements of Section 6.04 and 7.02
hereunder shall have assumed the rights and obligations of the Master Servicer
hereunder.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of a Master Servicer Event of Termination and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less than
25% of the Voting Rights evidenced by the Certificates shall also have made
written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 10.08, each
and every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 10.09. Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Servicer to permit any representative of the
Depositor or the Trustee during the Master Servicer's or Servicer's, as the case
may be, normal business hours, to examine all the books of account, records,
reports and other papers of the Master Servicer or the Servicer, as the case may
be, relating to the Mortgage Loans, to make copies and extracts therefrom, to
cause such books to be audited by independent certified public accountants
selected by the Depositor or the Trustee and to discuss its affairs, finances
and accounts relating to the Mortgage Loans with its officers, employees and
independent public accountants (and by this provision the Master Servicer or the
Servicer, as the case may be, hereby authorizes said accountants to discuss with
such representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by the Depositor or the Trustee of any right under this
Section 10.09 shall be borne by the party requesting such inspection; all other
such expenses shall be borne by the Master Servicer or the related Servicer.
Section 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
IN WITNESS WHEREOF, the Depositor, the Trustee, the Transferor and
the Master Servicer have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
MORTGAGE ASSET SECURITIZATION
TRANSACTIONS, INC.,
as Depositor
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Trustee
By: ____________________________________
Name:
Title:
UBS WARBURG REAL ESTATE
SECURITIES INC.,
as Transferor
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Master Servicer
By: ____________________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of February, 2002 before me, a notary public in and for said
State, personally appeared _______________ known to me to be a ________________
of Mortgage Asset Securitization Transactions, Inc., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_______________________________________
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of February, 2002 before me, a notary public in and
for said State, personally appeared _________________ known to me to be a
__________________ of JPMorgan Chase Bank, one of the corporations that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of February, 2002 before me, a notary public in and
for said State, personally appeared _________________ known to me to be a
__________________ of ▇▇▇▇▇ Fargo Bank Minnesota, N.A., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of February, 2002 before me, a notary public in and
for said State, personally appeared _________________ known to me to be a
__________________ of UBS Warburg Real Estate Securities Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_______________________________________
Notary Public
STATE OF )
) ss.:
COUNTY OF )
On the ____ day of February, 2002 before me, a notary public in and for said
State, personally appeared _______________ known to me to be a ________________
of Mortgage Asset Securitization Transactions, Inc., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_______________________________________
Notary Public
SCHEDULE I
Mortgage Loan Schedule
[Delivered to the Trustee. Available upon request]
SCHEDULE II
MASTR Adjustable Rate Mortgages Trust
Mortgage Pass-Through Certificates
Series 2002-1
Representations and Warranties as to the Mortgage Loans
-------------------------------------------------------
UBS Warburg Real Estate Securities Inc. (the "Transferor") hereby
makes with respect to those Mortgage Loans sold by it to the Depositor pursuant
to the Mortgage Loan Purchase Agreement the following representation and
warranty. Capitalized terms used but not otherwise defined in this Schedule II
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") relating to the above-referenced Series,
among the Transferor, Mortgage Asset Securitization Transactions, Inc., as
depositor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as master servicer, and JPMorgan
Chase Bank, as trustee.
With respect to each representation and warranty made by each
Originator as of the related Loan Sale Date, to the Transferor's knowledge, no
event has occurred from such Loan Sale Date which would render such
representations and warranties to be untrue in any material respect.
EXHIBIT A-1
(FORM OF CLASS A-1 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: A-1-1
Cut-off Date: February 1, 2002
First Distribution Date: March 25, 2002
Pass-Through Rate: Floating
in accordance with
the Agreement
Initial Certificate Principal Balance $[ ]
of this Certificate ("Denomination"):
Initial Certificate Principal Balances
of all Certificates of this Class: $101,741,000
CUSIP: 576133 AJ 5
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Mortgage Pass-Through Certificates, Series 2002-1
Class A-1
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured primarily by first liens on
one- to four-family residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that ___________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate initial Class Principal
Balances of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by Mortgage Asset Securitization Transactions,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, UBS Warburg Real Estate Securities Inc., as
transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as master servicer (the
"Servicer"), and JPMorgan Chase Bank, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: _____________, 200_
JPMORGAN CHASE BANK,
as Trustee
By:____________________________________
Countersigned:
By: _________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-2
(FORM OF CLASS A-2 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: A-2-1
Cut-off Date: February 1, 2002
First Distribution Date: March 25, 2002
Pass-Through Rate: Floating
in accordance with
the Agreement
Initial Certificate Principal Balance $[ ]
of this Certificate ("Denomination"):
Initial Certificate Principal Balances $50,000,000
of all Certificates of this Class:
CUSIP: 576433 AK 2
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Mortgage Pass-Through Certificates, Series 2002-1
Class A-2
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured primarily by first liens on
one- to four-family residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate initial Class Principal
Balances of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by Mortgage Asset Securitization Transactions,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, UBS Warburg Real Estate Securities Inc., as
transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as master servicer (the
"Servicer"), and JPMorgan Chase Bank, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: _____________, 200_
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Countersigned:
By:_____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
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 Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
Certificate No.: A-3-1
Cut-off Date: February 1, 2002
First Distribution Date: March 25, 2002
Pass-Through Rate: Floating
in accordance with
the Agreement
Initial Notional Amount of this $[ ]
Certificate ("Denomination"):
Initial Notional Amount of all $50,000,000
Certificates of this Class:
CUSIP: 576433 AL O
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Mortgage Pass-Through Certificates, Series 2002-1
Class A-3
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional mortgage
loans (the "Mortgage Loans") secured primarily by first liens on
one- to four-family residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Servicer or the Trustee referred
to below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by Mortgage Asset Securitization Transactions, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, UBS Warburg Real Estate Securities Inc., as transferor, ▇▇▇▇▇
Fargo Bank Minnesota, N.A., as master servicer (the "Servicer"), and JPMorgan
Chase Bank, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: ______________, 200_
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Countersigned:
By:_____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-R
(FORM OF CLASS A-R CERTIFICATE)
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). TRANSFERS OF THIS CERTIFICATE TO
ANY PERSON WHO IS NOT A PERMITTED TRANSFEREE, AS SET FORTH IN SECTION 5.02(C) OF
THE AGREEMENT IS PROHIBITED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH
ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT
("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
ATTACHED TO THE AGREEMENT.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA, THE CODE OR SIMILAR LAW SHALL BE VOID AND OF NO EFFECT.
Certificate No.: A-R-1
Cut-off Date: February 1, 2002
First Distribution Date: March 25, 2002
Pass-Through Rate: Floating
in accordance with
the Agreement
Initial Certificate Principal Balance $[ ]
of this Certificate ("Denomination"):
Initial Certificate Principal Balances $50
of all Certificates of this Class:
CUSIP: 576433 AM 8
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Mortgage Pass-Through Certificates, Series 2002-1 evidencing the
distributions allocable to the Class A-R Certificates with respect to a Trust
Fund consisting primarily of a pool of conventional loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest (obtained by dividing the Denomination of this Certificate
by the aggregate initial Class Principal Balances of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting of the Mortgage Loans deposited by Mortgage
Asset Securitization Transactions, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, UBS Warburg Real
Estate Securities Inc., as transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
master servicer (the "Servicer"), and JPMorgan Chase Bank., as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office of the Trustee.
No transfer of a Class A-R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, Section 4975 of the Code or Similar Law, nor a
person acting on behalf of any such plan, which representation letter shall not
be an expense of the Trustee or the Servicer. Notwithstanding anything else to
the contrary herein any purported transfer of a Class A-R Certificate to or on
behalf of an employee benefit plan subject to ERISA, the Code or Similar Law
shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-R Certificate must be a Permitted Transferee,
(ii) no Ownership Interest in this Class A-R Certificate may be transferred
without delivery to the Trustee of (a) a transfer affidavit of the proposed
transferee and (b) a transfer certificate of the transferor, each of such
documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class A-R Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Trustee as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class A-R Certificate must agree not to
transfer an Ownership Interest in this Class A-R Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: _____________, 200_
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Countersigned:
By:_____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT A-LR
(FORM OF CLASS A-LR CERTIFICATE)
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). TRANSFERS OF THIS CERTIFICATE TO
ANY PERSON WHO IS NOT A PERMITTED TRANSFEREE, AS SET FORTH IN SECTION 5.02(C) OF
THE AGREEMENT IS PROHIBITED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH
ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT
("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
ATTACHED TO THE AGREEMENT.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO ERISA, THE CODE OR SIMILAR LAW SHALL BE VOID AND OF NO EFFECT.
Certificate No.: A-LR-1
Cut-off Date: February 1, 2002
First Distribution Date: March 25, 2002
Pass-Through Rate: Floating
in accordance with
the Agreement
Initial Certificate Principal Balance $[ ]
of this Certificate ("Denomination"):
Initial Certificate Principal Balances $50
of all Certificates of this Class:
CUSIP: 576433 AN 6
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Class A-LR
Mortgage Pass-Through Certificates, Series 2002-1 evidencing the distributions
allocable to the Class A-LR Certificates with respect to a Trust Fund consisting
primarily of a pool of conventional loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest (obtained by dividing the Denomination of this Certificate
by the aggregate initial Class Principal Balances of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions with
respect to a Trust Fund consisting of the Mortgage Loans deposited by Mortgage
Asset Securitization Transactions, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, UBS Warburg Real
Estate Securities Inc., as transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
master servicer (the "Servicer") and JPMorgan Chase Bank, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class A-LR
Certificate at the Corporate Trust Office of the Trustee.
No transfer of a Class A-LR Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, Section 4975 of the Code or Similar Law, nor a
person acting on behalf of any such plan, which representation letter shall not
be an expense of the Trustee or the Servicer. Notwithstanding anything else to
the contrary herein any purported transfer of a Class A-R Certificate to or on
behalf of an employee benefit plan subject to ERISA, the Code or Similar Law
shall be void and of no effect.
Each Holder of this Class A-LR Certificate will be deemed to have
agreed to be bound by the restrictions of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Class A-LR Certificate must be a Permitted
Transferee, (ii) no Ownership Interest in this Class A-LR Certificate may be
transferred without delivery to the Trustee of (a) a transfer affidavit of the
proposed transferee and (b) a transfer certificate of the transferor, each of
such documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class A-LR Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Trustee as required pursuant to the Agreement, (iv) each person holding or
acquiring an Ownership Interest in this Class A-LR Certificate must agree not to
transfer an Ownership Interest in this Class A-LR Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-LR
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: _____________, 200_
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Countersigned:
By:_____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT B
(FORM OF B-1, B-2 OR B-3 CERTIFICATE)
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
Certificate No.: [B-1-1] [B-2-1] [B-3-1]
Cut-off Date: February 1, 2002
First Distribution Date: March 25, 2002
Pass-Through Rate: Floating
in accordance with
the Agreement
Initial Certificate Principal Balance B-1 $[ ]
of this Certificate ("Denomination"): B-2 $[ ]
B-3 $[ ]
Initial Certificate Principal Balances B-1 $[1,564,000]
of all Certificates of this Class: B-2 $[1,173,000]
B-3 $[1,017,000]
CUSIP: B-1 [576433 AP 1]
B-2 [576433 AQ 9]
B-3 [576433 AR 7]
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Mortgage Pass-Through Certificates, Series 2002-1
Class [B-1] [B-2] [B-3]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate initial Class Principal
Balances of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by Mortgage Asset Securitization Transactions,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, UBS Warburg Real Estate Securities Inc., as
transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as master servicer (the
"Servicer"), and JPMorgan Chase Bank, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: _____________, 200_
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Countersigned:
By:_____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT C
(FORM OF PRIVATE CERTIFICATE)
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH
ALL APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE ACT
("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY
BY THE TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE,
OR A PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, DELIVERS TO THE
TRUSTEE A REPRESENTATION LETTER OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. (SUCH REPRESENTATION SHALL BE
DEEMED TO HAVE BEEN MADE TO THE TRUSTEE BY THE TRANSFEREE'S ACCEPTANCE OF A
CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL OWNER'S ACCEPTANCE OF ITS INTEREST
IN A CERTIFICATE OF THIS CLASS.) NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA, THE CODE OR SIMILAR LAW WITHOUT THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID
AND OF NO EFFECT.
Certificate No.: [B-4-1] [B-5-1] [B-6-1]
Cut-off Date: February 1, 2002
First Distribution Date: March 25, 2002
Pass-Through Rate: Floating
in accordance with
the Agreement
Initial Certificate Principal Balance B-4 $[ ]
of this Certificate ("Denomination"): B-5 $[ ]
B-6 $[ ]
Initial Certificate Principal Balances B-4 $[313,000]
of all Certificates of this Class: B-5 $[156,000]
B-6 $[470,426.68]
CUSIP: B-4 [576433 AS 5]
B-5 [576433 AT 3]
B-6 [576433 AU 0]
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Mortgage Pass-Through Certificates, Series 2002-1
Class [B-4] [B-5] [B-6]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties
Mortgage Asset Securitization Transactions, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Principal Balance at any time may
be less than the Certificate Principal Balance as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the aggregate initial Class Principal
Balances of all Certificates of the Class to which this Certificate belongs) in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by Mortgage Asset Securitization Transactions,
Inc. (the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, UBS Warburg Real Estate Securities Inc., as
transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as master servicer (the
"Servicer"), and JPMorgan Chase Bank, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee in
writing the facts surrounding the transfer. In the event that such a transfer is
to be made within three years from the date of the initial issuance of
Certificates pursuant hereto, there shall also be delivered (except in the case
of a transfer pursuant to Rule 144A of the Securities Act) to the Trustee an
Opinion of Counsel that such transfer may be made pursuant to an exemption from
the Securities Act and such state securities laws, which Opinion of Counsel
shall not be obtained at the expense of the Trustee, the Servicer, or the
Depositor. The Holder hereof desiring to effect such transfer shall, and does
hereby agree to, indemnify the Trustee and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation (letter) from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Title I of ERISA, Section 4975 of the Code, or
a plan subject to any federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, nor a person acting on
behalf of any such plan, which representation letter shall not be an expense of
the Trustee or the Servicer, (ii) if the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the
case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, Section 4975 of the Code or Similar Law
(or comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Trustee and the Servicer to the effect that the
purchase or holding of such Certificate will not result in the assets of the
Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code or similar provisions of Similar
Law and will not subject the Trustee to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense of
the Trustee or the Servicer. (Such representation shall be deemed to have been
made to the Trustee by the Transferee's acceptance of a Certificate of this
Class and by a beneficial owner's acceptance of its interest in a Certificate of
this Class.) Notwithstanding anything else to the contrary herein, any purported
transfer of a Certificate of this Class to or on behalf of an employee benefit
plan subject to ERISA, the Code or Similar Law without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no effect.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated: _____________, 200_
JPMORGAN CHASE BANK,
as Trustee
By:_____________________________________
Countersigned:
By:_____________________________________
Authorized Signatory of
JPMORGAN CHASE BANK,
as Trustee
EXHIBIT D
(RESERVED)
EXHIBIT E
(Form of Reverse of Certificates)
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Mortgage Pass-Through Certificates, Series 2002-1
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2002-1, Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the month
of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Office of the Trustee or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Transferor, the Depositor, the Servicer and the Trustee with the consent
of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, and the Trustee and any agent of the
Depositor, the Servicer or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Servicer, the Trustee, nor any such agent shall be affected by
any notice to the contrary.
On any Distribution Date on which the Pool Principal Balance is less
than 10% of the aggregate Cut-off Date Principal Balances of the Mortgage Loans,
the Servicer will have the option to repurchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined as provided in the Agreement. In
the event that no such optional termination occurs, the obligations and
responsibilities created by the Agreement will terminate upon the later of the
maturity or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund or the disposition of all property in
respect thereof and the distribution to Certificateholders of all amounts
required to be distributed pursuant to the Agreement. In no event, however, will
the trust created by the Agreement continue beyond the expiration of 21 years
from the death of the last survivor of the descendants living at the date of the
Agreement of a certain person named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
Dated:
___________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Statements should be mailed to _________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by, ___________________________________
the assignee named above, or __________________________________________________,
as its agent.
STATE OF )
) ss.:
COUNTY OF )
On the___ day of _______, 200_ before me, a notary public in and for
said State, personally appeared ___________________________________, known to me
who, being by me duly sworn, did depose and say that he executed the foregoing
instrument.
___________________________________________
Notary Public
[Notarial Seal]
EXHIBIT F-1
FORM OF INITIAL CERTIFICATION OF MASTER SERVICER
[date]
Mortgage Asset Securitization Transactions, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement among Mortgage Asset Securitization
Transactions, Inc., as depositor, UBS Warburg Real Estate Securities
Inc., as transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as master
servicer (the "Master Servicer"), and JPMorgan Chase Bank, as
trustee, in connection with MASTR Adjustable Rate Mortgages Trust
2002-1, Mortgage Pass-Through Certificates, Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Master Servicer acting on behalf of the Trustee, hereby certifies that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan listed on the attached schedule) it has
received:
(i) (a) the original Mortgage Note or (b) with respect to any Lost
Mortgage Note, a lost note affidavit from the Depositor stating that the
original Mortgage Note was lost or destroyed; and
(ii) an assignment of the Mortgage (which may be included in a
blanket assignment or assignments) executed via facsimile signature.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Master Servicer has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Master Servicer makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Master Servicer
By:_____________________________________
Name:
Title:
EXHIBIT F-2
FORM OF INITIAL CERTIFICATION OF MASTER SERVICER
[date]
Mortgage Asset Securitization Transactions, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement among Mortgage Asset Securitization
Transactions, Inc., as depositor, UBS Warburg Real Estate Securities
Inc., as transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as master
servicer (the "Master Servicer"), and JPMorgan Chase Bank, as
trustee, in connection with MASTR Adjustable Rate Mortgages Trust
2002-1, Mortgage Pass-Through Certificates, Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Master Servicer acting on behalf of the Trustee, hereby certifies that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or any Mortgage Loan listed on the attached schedule) it has
received an original manually executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Master Servicer has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Master Servicer makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Master Servicer
By:_____________________________________
Name:
Title:
EXHIBIT G
FORM OF FINAL CERTIFICATION OF MASTER SERVICER
[date]
Mortgage Asset Securitization Transactions, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement among Mortgage Asset Securitization
Transactions, Inc., as depositor, UBS Warburg Real Estate Securities
Inc., as transferor, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as master
servicer (the "Master Servicer"), and JPMorgan Chase Bank, as
trustee, in connection with MASTR Adjustable Rate Mortgages Trust
2002-1, Mortgage Pass-Through Certificates, Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Master Servicer, acting on behalf of the Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or listed on the attached Document Exception Report) it has
received:
(i) the original Mortgage Note endorsed in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the transferor to the
Depositor.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form
provided in Section 2.01(b) of the Pooling and Servicing Agreement, or, if the
Depositor has certified or the Master Servicer otherwise knows that the related
Mortgage has not been returned from the applicable recording office, a copy of
the assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Depositor.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by the
title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2), (3), (4),
(9), (16), and (21) of the definition of the "Mortgage Loan Schedule" in Section
1.01 of the Pooling and Servicing Agreement accurately reflects information set
forth in the Mortgage File.
The Custodian on behalf of the Trustee has made no independent
examination of any documents contained in each Mortgage File beyond the review
specifically required in the Pooling and Servicing Agreement. The Custodian on
behalf of the Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
contained in each Mortgage File of any of the Mortgage Loans identified on the
Mortgage Loan Schedule, or (ii) the collectability, insurability, effectiveness
or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Master Servicer
By:_____________________________________
Name:
Title:
EXHIBIT H
FORM OF CLASS [A-R] [A-LR] TRANSFER AFFIDAVIT
MASTR ADJUSTABLE RATE MORTGAGES TRUST 2002-1
Mortgage Asset Securitization Transactions, Inc.
Mortgage Pass-Through Certificates
Series 2002-1
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of _______, the proposed Transferee
of an Ownership Interest in a Class [A-R] [A-LR] Certificate (the "Certificate")
issued pursuant to the Pooling and Servicing Agreement dated as of February 1,
2002 (the "Agreement") among Mortgage Asset Securitization Transactions, Inc.,
as depositor, UBS Warburg Real Estate Securities Inc., as transferor, ▇▇▇▇▇
Fargo Bank Minnesota, N.A., as master servicer (the "Master Servicer"), and
JPMorgan Chase Bank, as trustee (the "Trustee"). Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to such
terms in the Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are 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; provided,
that a pass-through entity which is an "electing large partnership" under the
Code will be subject to tax in all events. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another Person.) The
Transferee further understands that it may incur tax liabilities with respect to
the holding of the Certificate in excess of cash flows generated thereby.
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit I to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate. The Transferee historically has paid its debts as they have
become due and intends to do so in the future.
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 has computed any consideration paid to it to
acquire the Class [A-R] [AL-R] Certificate in accordance with proposed U.S.
Treasury Regulations Sections 1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or, after
they have been finalized, the final regulations) by computing present values
using a discount rate equal to the applicable Federal rate prescribed by Section
1274(d) of the Code, compounded semi-annually.]
----------
* Insert appropriate paragraph, if applicable.
[The Transferee has computed any consideration paid to it to acquire
the Class [A-R] [A-LR] Certificate in accordance with proposed U.S. Treasury
Regulations Sections 1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or, after they have
been finalized, the final regulations) by computing present values using a
discount rate at least equal to the rate at which the Transferee regularly
borrows, in the ordinary course of its trade or business, substantial funds from
unrelated third parties. The Transferee has provided all information necessary
to demonstrate to the transferor that it regularly borrows at such rate.]
[The transfer of the Class [A-R] [AL-R] Certificate complies with
Section 6 of Revenue Procedure 2001-12 (the "Revenue Procedure"), 2001-3 I.R.B.
335 (January 16, 2001) (or comparable provisions of applicable final U.S.
Treasury Regulations) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
Section 860L(a)(2) of the Code, as to which income from Class
[A-R] [A-LR] 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 Purchaser within the meaning of Section 860L(g)
of the Code) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the [A-R] [A-LR] Certificate only
to another "eligible corporation," as defined in Section
860(a)(2) of the Code, in a transaction that satisfies the
requirements of Section 4 of the Revenue Procedure; and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [A-R] [A-LR] 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 Purchaser) that it has determined in good
faith.]
[Reserved]
12. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, and the Transferee is
not acting on behalf of such a plan.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ____________ day of __________________, 200_.
________________________________________
PRINT NAME OF TRANSFEREE
By:_____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
________________________________________
[Assistant] Secretary
Personally appeared before me the above-named _______, known or
proved to me to be the same person who executed the foregoing instrument and to
be the __________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this __________ day of _______, 200_.
________________________________________
Notary Public
My Commission expires the ______ day of
________________, 200_.
EXHIBIT 1
to EXHIBIT H
Certain Definitions
"Ownership Interest": As to any Residual Certificate, any ownership
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
"Permitted Transferee": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, an estate whose income is subject to United States federal income tax
purposes regardless of its source or a trust if a court within the United States
is able to exercise primary supervision over the administration of the trust and
one or more persons described in this clause (v) have the authority to control
all substantial decisions of the trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as United States persons) unless such Person has
furnished the transferor and the Trustee with a duly completed Internal Revenue
Service Form W-8ECI or any applicable successor form, and (vi) any other Person
so designated by the Depositor based upon an Opinion of Counsel that the
Transfer of an Ownership Interest in a Residual Certificate to such Person may
cause any REMIC hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of the ▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not
selected by such government unit.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
EXHIBIT 2
to EXHIBIT H
Section 5.02(c) of the Agreement
Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee shall
not register the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Trustee under subparagraph (b)
above, the Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form attached
hereto as Exhibit H.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership Interest in
a Residual Certificate, (B) to obtain a Transfer Affidavit from any Person for
whom such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section 5.02(c)
shall be absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then the
last preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by Section 5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder who is
not a Permitted Transferee described in clauses (i) through (iv) of the
definition thereof.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Loan
Seller, the Transferors or the Master Servicer, to the effect that the
elimination of such restrictions will not cause any REMIC hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is not
a Permitted Transferee and (b) to provide for a means to compel the Transfer of
a Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
_____________________
Date
Mortgage Asset Securitization Transactions, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
JPMorgan Chase Bank, as trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages 2002-1, Mortgage Pass-Through Certificates, Series
2002-1, Class [ ]
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, in a manner that would be
deemed, or taken any other action which would result in, a violation of Section
5 of the Securities Act of 1933, as amended and (b) to the extent we are
disposing of a Class [A-R] [A-LR] Certificate, (i) we have no knowledge the
Transferee is not a Permitted Transferee and (ii) after conducting a reasonable
investigation of the financial condition of the transferee, we have no reason to
believe that the transferee will not pay taxes with respect to the Class [A-R]
[A-LR] Certificate when due.
Very truly yours,
________________________________________
Print Name of Transferor
By:_____________________________________
Authorized Officer
EXHIBIT J
FORM OF INVESTMENT LETTER (NON-RULE 144A)
_____________________
Date
Mortgage Asset Securitization Transactions, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
JPMorgan Chase Bank, as trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2002-1, Mortgage Pass-Through Certificates,
Series 2002-1, Class [ ]
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a plan or
arrangement subject to any federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor are we
acting on behalf of any such plan or arrangement, nor are we using the assets of
any such plan or arrangement to effect such acquisition or (ii) if we are an
insurance company, a representation that we are an insurance company which is
purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60,
(e) we are acquiring the Certificates for investment for our own account and not
with a view to any distribution of such Certificates (but without prejudice to
our right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
________________________________________
Print Name of Transferor
By:_____________________________________
Authorized Officer
EXHIBIT K
FORM OF RULE 144A LETTER
_____________________
Date
Mortgage Asset Securitization Transactions, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
JPMorgan Chase Bank, as trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR Adjustable
Rate Mortgages Trust 2002-1, Mortgage Pass-Through Certificates,
Series 2002-1, Class [ ]
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a plan or
arrangement that is subject to Section 4975 of the Internal Revenue Code of
1986, as amended, or a plan or arrangement subject to any federal, state or
local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, nor are we acting on behalf of any such plan or arrangement,
nor are we using the assets of any such plan or arrangement to effect such
acquisition or (ii) if we are an insurance company, a representation that we are
an insurance company which is purchasing such Certificates with funds contained
in an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificates are covered under PTCE 95-60, (e)
we have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise disposed of the Certificates, any interest in the Certificates
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
ANNEX 1
to EXHIBIT K
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
(For Transferees Other Than Registered Investment Companies)
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis either at least $100,000 in securities
or, if Buyer is a dealer, Buyer must own and/or invest on a discretionary basis
at least $10,000,000 in securities (except for the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State,
territory or the District of Columbia.
State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
________________________________________
Print Name of Buyer
By:_____________________________________
Name:
Title:
Date:
ANNEX 2
to EXHIBIT K
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
(For Transferees That are Registered Investment Companies)
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
________________________________________
Print Name of Buyer or Adviser
By:_____________________________________
Name:
Title:
IF AN ADVISER:
________________________________________
Print Name of Buyer
Date: