Exhibit 4.1
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MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.,
Depositor
and
▇▇▇▇▇ FARGO BANK, N.A.,
Trustee and Securities Intermediary
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TRUST AGREEMENT
Dated as of December 1, 2004
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MASTR SEASONED SECURITIZATION TRUST 2004-2
MORTGAGE PASS-THROUGH CERTIFICATES, Series 2004-2
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS 2
Section 1.01. Definitions..................................................................................2
Section 1.02. Certain Calculations........................................................................13
ARTICLE II CONVEYANCE OF UNDERLYING CERTIFICATES; REPRESENTATIONS AND WARRANTIES 13
Section 2.01. Conveyance of Trust Assets..................................................................13
Section 2.02. Acceptance by Trustee of the Trust Assets...................................................13
Section 2.03. Representations and Warranties of the Depositor as to the Trust Assets......................13
Section 2.04. Execution and Delivery of Certificates......................................................14
Section 2.05. REMIC Matters...............................................................................15
ARTICLE III ADMINISTRATION OF UNDERLYING CERTIFICATES 15
Section 3.01. Permitted Withdrawals from the Distribution Account.........................................15
Section 3.02. Distribution Account........................................................................15
ARTICLE IV DISTRIBUTIONS AND ALLOCATION OF LOSSES 16
Section 4.01. Priorities of Distribution..................................................................16
Section 4.02. Allocation of Realized Losses...............................................................17
Section 4.03. Distribution Date Statements to Certificateholders..........................................17
ARTICLE V THE CERTIFICATES 20
Section 5.01. The Certificates............................................................................20
Section 5.02. Certificate Register; Registration of Transfer and Exchange of Certificates.................20
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...........................................24
Section 5.04. Persons Deemed Owners.......................................................................24
Section 5.05. Access to List of Certificateholders' Names and Addresses...................................25
Section 5.06. Maintenance of Office or Agency.............................................................25
ARTICLE VI THE DEPOSITOR 25
Section 6.01. Liabilities of the Depositor................................................................25
Section 6.02. Merger or Consolidation of the Depositor....................................................25
Section 6.03. Limitation on Liability of the Depositor and Others.........................................26
Section 6.04. Rights of Certificateholders as Holders of the Trust Assets.................................26
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ARTICLE VII [RESERVED] 27
ARTICLE VIII CONCERNING THE TRUSTEE 27
Section 8.01. Duties of Trustee...........................................................................27
Section 8.02. Certain Matters Affecting the Trustee.......................................................28
Section 8.03. Trustee Not Liable for Certificates.........................................................29
Section 8.04. Trustee May Own Certificates................................................................29
Section 8.05. Trustee's Fees and Expenses.................................................................29
Section 8.06. Eligibility Requirements for Trustee........................................................30
Section 8.07. Resignation and Removal of Trustee..........................................................30
Section 8.08. Successor Trustee...........................................................................31
Section 8.09. Merger or Consolidation of Trustee..........................................................32
Section 8.10. Appointment of Co-Trustee or Separate Trustee...............................................32
Section 8.11. Tax Matters.................................................................................33
Section 8.12. Periodic Filings............................................................................35
Section 8.13. Annual Compliance Certificate...............................................................36
Section 8.14. Annual Accountants' Review..................................................................37
Section 8.15. Voting on the Trust Assets..................................................................37
ARTICLE IX [reserved] 37
ARTICLE X TERMINATION 37
Section 10.01. Final Distribution on the Certificates......................................................37
Section 10.02. Additional Termination Requirements.........................................................38
ARTICLE XI MISCELLANEOUS PROVISIONS 39
Section 11.01. Amendment...................................................................................39
Section 11.02. Governing Law...............................................................................40
Section 11.03. Intention of Parties........................................................................40
Section 11.04. Notices.....................................................................................41
Section 11.05. Severability of Provisions..................................................................41
Section 11.06. Limitation on Rights of Certificateholders..................................................42
Section 11.07. Certificates Nonassessable and Fully Paid...................................................42
ARTICLE XII SECURITIES ACCOUNT 43
Section 12.01. The Securities Account......................................................................43
Section 12.02. Liability of the Securities Intermediary....................................................45
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EXHIBITS
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Exhibit A: Form of Class A-[1][2][3] Certificate
Exhibit B: Form of Class PO Certificate
Exhibit C: Form of Class A-R Certificate
Exhibit D: Form of Reverse of Certificates
Exhibit E: Form of Transfer Affidavit
Exhibit F: Form of Transferor Certification
Exhibit G: Form of Certification to be Provided with Form 10-K
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THIS TRUST AGREEMENT (the "Agreement"), dated as of December 1, 2004,
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC., a Delaware corporation
as depositor (the "Depositor") and ▇▇▇▇▇ FARGO BANK, N.A., a national banking
association ("▇▇▇▇▇ Fargo") as trustee (in such capacity, the "Trustee") and as
securities intermediary (in such capacity, the "Securities Intermediary").
W I T N E S S E T H T H A T
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 for federal income
tax purposes shall consist of one REMIC (the "Master REMIC"). The "latest
possible maturity date" for federal income tax purposes of all interests created
hereby shall be the Latest Possible Maturity Date.
MASTER REMIC:
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount):
INTEGRAL MULTIPLES
INITIAL CLASS PRINCIPAL INITIAL PASS-THROUGH MINIMUM IN EXCESS OF
BALANCE RATE DENOMINATION MINIMUM
------- ---- ------------ -------
Class A-1........... $ 341,652,010 6.500% $25,000 $1
Class A-2........... $ 50,000,000 6.500% $25,000 $1
Class A-3........... $ 2,500,000 6.500% $25,000 $1
Class PO $ 364,168 (1) $25,000 $1
Class A-R........... $ 100 N/A NA N/A
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(1) The Class PO Certificates are Principal Only Certificates and
will not be entitled to distributions in respect of interest.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates................. The Class A-1, Class A-2, Class A-3
and Class PO Certificates.
ERISA-Restricted Certificates........... The Residual Certificates.
Physical Certificates................... The Residual Certificates.
Principal Only Certificates............. The Class PO Certificates.
Rating Agencies......................... Fitch and S&P.
Regular Certificates.................... The Class A-1, Class A-2, Class A-3
and Class PO Certificates.
Residual Certificates................... The Class A-R Certificates.
Defined terms and provisions herein relating to statistical rating
agencies not designated above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
ACCOUNT PROPERTY: All amounts and investments held from time
to time in a Securities Account (whether in the form of deposit accounts,
physical property, book-entry securities, uncertificated securities, securities
entitlements, investment property or otherwise), and all proceeds of the
foregoing.
ACCRUED CERTIFICATE INTEREST: With respect to any Distribution
Date and the Class A-1, Class A-2 or Class A-3 Certificates, the sum of (i) one
month's interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class on the related Class Principal Balance subject
to reduction as provided in Section 4.01(b) PLUS (ii) any Class Unpaid Interest
Amounts for such Class.
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 Trust Agreement and all amendments or
supplements hereto.
AVAILABLE FUNDS: As to any Distribution Date, the aggregate
amount required to be held by the Trustee in the Distribution Account on such
Distribution Date representing distributions received by the Trustee on the
Trust Assets and not previously distributed to the Certificateholders (provided
that the related Underlying Distribution Date Statement has been received by the
Trustee for the immediately prior Underlying Distribution Date) and any other
amounts deposited in the Distribution Account pursuant to Section 3.02, less any
amounts related to the Trust Assets permitted to be withdrawn from the
Distribution Account pursuant to clauses (a)-(c) inclusive of Section 3.01.
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BOOK-ENTRY CERTIFICATES: As specified in the Preliminary
Statement.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the City of New York, New York,
Minnesota, Maryland, or any city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
CERTIFICATE: Any one of the Certificates executed by the
Trustee on behalf of the Trust and authenticated by the Trustee in substantially
the forms attached hereto as Exhibit A through Exhibit D.
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 pursuant to Section 4.02.
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 Depositor or any affiliate of 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
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 Depositor or
any affiliate of the Depositor, as applicable, in determining which Certificates
are registered in the name of an affiliate of the Depositor.
CLASS: All Certificates bearing the same class designation as
set forth in the Preliminary Statement.
CLASS INTEREST SHORTFALL: As to any Distribution Date and any
interest-bearing Class, the amount by which the amount described in clause (i)
of the definition of "Accrued Certificate Interest" for such Class exceeds the
amount of interest actually distributed on such Class on such Distribution Date.
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.
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CLASS UNPAID INTEREST AMOUNTS: As to any Distribution Date and
any interest-bearing Class, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii) of
the definition of "Accrued Certificate Interest" for such Class.
CLOSING DATE: December 29, 2004.
CODE: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
CONTROL: The meaning specified in Section 8-106 of the
Relevant UCC.
CORPORATE TRUST OFFICE: With respect to the Trustee, the
designated office of the Trustee at which at any particular time its corporate
trust business with respect to this Agreement shall be administered, which
office at the date of the execution of this Agreement is located for certificate
transfer purposes at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Services--MSSTR 2004-2, and for all other
purposes at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Services--MSSTR 2004-2.
CUT-OFF DATE: December 1, 2004.
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).
DENOMINATION: With respect to each Certificate, the amount set
forth on the face thereof as the "Initial Certificate Principal Balance of this
Certificate".
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.
DISTRIBUTION ACCOUNT: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.02 in the name of the
Trustee for the benefit of the Certificateholders and designated "▇▇▇▇▇ Fargo
Bank, N.A., as Trustee, in trust for registered Holders of MASTR Seasoned
Securitization Trust 2004-2, Mortgage Pass-Through Certificates, Series 2004-2."
Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
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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, commencing in January 2005.
DISTRIBUTION DATE STATEMENT: The statement delivered to the
Certificateholders pursuant to Section 4.03.
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 deposits in which accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a non-interest bearing segregated trust
account or accounts maintained with (a) the trust department of a federal or
state chartered depository institution or (b) a trust company, acting in its
fiduciary capacity or (iv) any other account acceptable to each Rating Agency,
as stated by each such Rating Agency in writing. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-RESTRICTED CERTIFICATE: As specified in the Preliminary
Statement.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended
from time to time.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FINANCIAL ASSET: As specified in Section 8-102(a)(9) of the
UCC.
FITCH: Fitch, Inc., or any successor thereto. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 11.05(b), the address for notices to Fitch shall be ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: MBS Monitoring MASTR Seasoned
Securitization Trust 2004-2, or such other address as Fitch may hereafter
furnish to each party to this Agreement.
▇▇▇▇▇▇▇ 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.
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INTEREST ACCRUAL PERIOD: With respect to each of the Class
A-1, Class A-2 and Class A-3 Certificates and each REMIC Regular Interest and
any Distribution Date, the period from and including the first day of the month
immediately preceding the month in which such Distribution Date occurs,
commencing December 1, 2004, to and including the last day of such immediately
preceding month, on the basis of a 360-day year consisting of twelve 30-day
months.
INTEREST DISTRIBUTION AMOUNT: For any Distribution Date, an
amount equal to the interest portion of all distributions received by the
Trustee with respect to the Trust Assets on the Underlying Distribution Date
occurring in the month of such Distribution Date.
LATEST POSSIBLE MATURITY DATE: The Distribution Date following
the maturity date of the Mortgage Loan having the latest scheduled maturity date
as of the Cut-off Date.
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 REMIC: As specified in the Preliminary Statement.
MASTER SERVICER: With respect to the Trust Assets, ▇▇▇▇▇ Fargo
Bank, N.A. and its successors and assigns, in its capacity as Master Servicer
under the Underlying Pooling and Servicing Agreement.
MOODY'S: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto. If ▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 11.05(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 each other party to this Agreement.
MORTGAGE LOANS: The mortgage loans held by the Underlying
Trustee on behalf of the Underlying Trust.
NET INTEREST SHORTFALLS: The aggregate amount by which the
Accrued Certificate Interest for each of the Trust Assets was reduced for the
related Underlying Distribution Date pursuant to Section 4.02(b) of Underlying
Pooling and Servicing Agreement.
NOTICE OF FINAL DISTRIBUTION: The notice to be provided
pursuant to Section 10.01 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender thereof.
OFFICER'S CERTIFICATE: A certificate 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 and delivered to the Trustee as required by this
Agreement.
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OPINION OF COUNSEL: A written opinion of counsel, who may be
counsel for the Depositor, 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, (ii) not have any direct financial interest in the
Depositor or in any affiliate of either, and (iii) not be connected with the
Depositor as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
OTS: The Office of Thrift Supervision.
OUTSTANDING: With respect to the Certificates as of any date
of determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(a) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
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:
(a) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and credit of the United
States;
(b) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency, or such lower rating as will not
result in the downgrading or withdrawal of the ratings then assigned to the
Certificates by either Rating Agency;
(c) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating of each Rating
Agency, or such lower rating as will not result in the downgrading or withdrawal
of the ratings then assigned to the Certificates by either Rating Agency;
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(d) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof and
subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long term unsecured debt
obligations of such depository institution or trust company are then rated in
one of the two highest long-term and the highest short-term ratings of each
Rating Agency for such securities, or such lower ratings as will not result in
the downgrading or withdrawal of the rating then assigned to the Certificates by
either Rating Agency;
(e) demand or time deposits or certificates of deposit issued
by any bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC and are then rated in the highest
long-term and the highest short-term ratings of each Rating Agency for such
securities, or such lower ratings as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by either Rating
Agency;
(f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the issuance
of such agreements, such terms and conditions as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates by
either Rating Agency;
(g) repurchase obligations with respect to any security
described in clauses (a) and (b) above, in either case entered into with a
depository institution or trust company (acting as principal) described in
clause (d) above;
(h) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face amount
thereof) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state thereof which, at
the time of such investment, have the highest rating of each Rating Agency, or
such lower rating as will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by either Rating Agency, as evidenced
by a signed writing delivered by each Rating Agency;
(i) units of a taxable money market portfolio having the
highest rating assigned by each Rating Agency and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States of
America and repurchase agreements collateralized by such obligations;
(j) any mutual fund, money market fund, common trust fund or
other pooled investment vehicle, the assets of which are limited to instruments
that otherwise would constitute Permitted Investments hereunder, including any
such fund that is managed by the Trustee or any affiliate of the Trustee or for
which the Trustee or any affiliate of the Trustee acts as an adviser as long as
such fund is rated in at least the highest rating category by each Rating Agency
(if so rated by such Rating Agency; PROVIDED, HOWEVER, if S&P or ▇▇▇▇▇'▇ is a
Rating Agency, then such mutual fund, money market fund, common trust fund or
other pooled investment vehicle shall have been rated by S&P or Moody's, as
applicable); and
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(k) such other investments bearing interest or sold at a
discount acceptable to each Rating Agency as will not result in the downgrading
or withdrawal of the rating then assigned to the Certificates by either Rating
Agency, as evidenced by a signed writing delivered by each Rating Agency;
PROVIDED that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument.
PERMITTED TRANSFEREE: Any Person other than (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers' cooperatives described
in section 521 of the Code) which is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in section 860E(c)(l) of
the Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) a
Person that is not a citizen or resident of the United States, a corporation,
partnership (except as provided in applicable Treasury Regulations), or other
entity created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, an estate whose income is subject to United
States federal income tax regardless of its source or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more Persons described in this clause (v)
have the authority to control all substantial decisions of the Trust (or, to the
extent provided in applicable Treasury Regulations, certain trusts in existence
on August 20, 1996 which are eligible to elect to be treated as United States
persons) unless such Person has furnished the transferor and the Trustee with a
duly completed Internal Revenue Service Form W-8ECI or any applicable successor
form, (vi) any Person with respect to whom income on any Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other Person
and (vii) any other Person so designated by the Depositor based upon an Opinion
of Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause 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 ▇▇▇▇▇▇▇ Mac, a majority of its board of directors
is not selected by such government unit.
PERSON: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
PHYSICAL CERTIFICATE: As specified in the Preliminary
Statement.
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PRINCIPAL DISTRIBUTION AMOUNT: For any Distribution Date, an
amount equal to the principal portion of all distributions received by the
Trustee with respect to the Trust Assets on the Underlying Distribution Date
occurring in the month of such Distribution Date.
PRINCIPAL ONLY CERTIFICATES: As specified in the Preliminary
Statement.
PROSPECTUS SUPPLEMENT: The Prospectus Supplement dated
December 23, 2004 relating to the Certificates and the accompanying Prospectus
dated October 25, 2004.
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: As to any Distribution Date, the principal
portion of realized losses determined from the related Underlying Distribution
Date Statement as having been allocated to each Trust Asset for the immediately
preceding Underlying Distribution Date.
RECORD DATE: With respect to any Distribution Date and the
Certificates, the close of business on the last Business Day of the month
preceding the month in which such Distribution Date occurs.
REFERENCE DATE: December 27, 2004.
REGULAR CERTIFICATES: As specified in the Preliminary
Statement.
RELEVANT UCC: The Uniform Commercial Code as in effect in the
applicable jurisdiction.
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.
REMIC REGULAR INTEREST: As specified in the Preliminary
Statement.
RESIDUAL INTERESTS: As specified in the Preliminary Statement.
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RESPONSIBLE OFFICER: Any director, any managing director, any
associate, any vice president, any assistant vice president, the secretary, any
assistant secretary, any trust officer or any other officer of the Trustee, as
applicable, customarily performing functions similar to those performed by any
of the above designated officers having direct responsibility for the
administration of this Agreement and also to whom, with respect to a particular
matter, such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
S&P: Standard and Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto. If S&P is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 11.05(b),
the address for notices to S&P shall be Standard and Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Residential Mortgage Monitoring Group, or such other address
as S&P may hereafter furnish to each other party to this Agreement.
SECURITIES ACCOUNT: As specified in Section 12.01.
SECURITIES INTERMEDIARY: The Person acting as Securities
Intermediary under this Agreement (which is, as of the Closing Date, ▇▇▇▇▇ Fargo
Bank, N.A.), its successor in interest, and any successor Securities
Intermediary appointed pursuant to Section 12.01.
SECURITIES PURCHASE AGREEMENT: The Securities Purchase
Agreement, dated as of December 29, 2004, between UBS Securities LLC and the
Depositor.
SECURITY ENTITLEMENT: As specified in Section 8-102(a)(17) of
the Relevant UCC.
STARTUP DAY: The Closing Date.
TAX MATTERS PERSON: In the case of the REMIC created by this
Agreement, 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 for such REMIC.
TRANSFER: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
TRUST: As defined in Section 2.01(b).
TRUST ADMINISTRATOR: With respect to the Trust Assets, the
trust administrator of the Underlying Trust pursuant to the Underlying Pooling
and Servicing Agreement.
TRUST ASSETS: A 100% interest in each of the MASTR Seasoned
Securitization Trust 2004-1, Mortgage Pass-Through Certificates, Series 2004-1,
Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4 and Class 2-A-6.
TRUST FUND: The corpus of the trust created hereunder
consisting of: (a) the rights of the Depositor under the Securities Purchase
Agreement; (b) the Distribution Account and all amounts deposited therein
pursuant to the applicable provisions of this Agreement; (c) all of the
Depositor's right, title and interest in the Trust Assets, including any
payments thereon due after
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the Reference Date; and (d) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing.
TRUSTEE: ▇▇▇▇▇ Fargo Bank, N.A., a national banking
association, not in its individual capacity, but solely in its capacity as
trustee for the benefit of the Certificateholders under this Agreement, and any
successor thereto, and any corporation or national banking association resulting
from or surviving any consolidation or merger to which it or its successors may
be a party and any successor trustee as may from time to time be serving as
successor trustee hereunder.
TRUSTEE COMPENSATION: (a) All investment earnings on amounts
on deposit in the Distribution Account PLUS (b) an additional fee equal to (i)
1/12 of the Trustee Fee Rate MULTIPLIED by (ii) the Certificate Principal
Balance of the Trust Assets as of the related Underlying Distribution Date.
TRUSTEE FEE RATE: 0.006% per annum.
UNDERLYING DISTRIBUTION DATE: The 25th day of each calendar
month, or if such 25th day is not a Business Day, the next succeeding Business
Day.
UNDERLYING DISTRIBUTION DATE STATEMENTS: The distribution date
statements relating to the Trust Assets made available by the Master Servicer to
the Trustee on behalf of the Trust as holder of the Trust Assets.
UNDERLYING POOLING AND SERVICING AGREEMENT: That certain
pooling and servicing agreement dated as of September 1, 2004, among Mortgage
Asset Securitization Transactions, Inc., as depositor, UBS Real Estate
Securities Inc., ▇▇▇▇▇ Fargo Bank, N.A. as master servicer, trust administrator
and a custodian, U.S. Bank National Association as a custodian and Wachovia
Bank, National Association as trustee.
UNDERLYING PROSPECTUS: With respect to the Trust Assets, the
prospectus supplement dated September 30, 2004 to the prospectus dated September
30, 2004 of Mortgage Asset Securitization Transactions, Inc.
UNDERLYING SERVICER: With respect to any Mortgage Loan, the
servicer of such Mortgage Loan.
UNDERLYING TRUST: With respect to the Trust Assets, the trust
established by the Underlying Pooling and Servicing Agreement which issued such
Trust Assets.
UNDERLYING TRUSTEE: With respect to the Trust Assets, the
trustee of the Underlying Trust.
UNDERWRITER'S EXEMPTION: Prohibited Transaction Exemption
2002-41, 67 Fed. Reg. 54487 (2002), as amended (or any successor thereto), or
any substantially similar administrative exemption granted by the U.S.
Department of Labor.
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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, the Voting Rights shall be allocated among Holders of the
remaining Classes of Certificates in proportion to the Certificate Principal
Balances of their respective Certificates on such date.
▇▇▇▇▇ FARGO: ▇▇▇▇▇ Fargo Bank, N.A., in its capacity as
Trustee and Securities Intermediary, as the case may be, hereunder.
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 provided for herein shall be made
on the basis of a 360-day year consisting of twelve 30 day months.
ARTICLE II
CONVEYANCE OF UNDERLYING CERTIFICATES;
REPRESENTATIONS AND WARRANTIES
Section 2.01. CONVEYANCE OF TRUST ASSETS.
(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.
(b) 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 Seasoned
Securitization Trust 2004-2" and ▇▇▇▇▇ Fargo Bank, N.A. is hereby appointed as
Trustee in accordance with the provisions of this Agreement.
(c) The Distribution Account shall at all times be an Eligible
Account. If the Distribution Account ceases to be an Eligible Account, the
Trustee shall immediately establish and maintain a new Distribution Account that
is an Eligible Account, and shall immediately transfer all funds on deposit in
the former Distribution Account to the new Distribution Account.
Section 2.02. ACCEPTANCE BY TRUSTEE OF THE TRUST ASSETS.
The Trustee acknowledges receipt of the Trust Assets and
declares that it holds and will hold such Trust Assets in trust for the
exclusive use and benefit of all present and future Certificateholders.
Section 2.03. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
AS TO THE TRUST ASSETS.
The Depositor hereby represents and warrants to the Trustee
with respect to each Trust Asset as of the date hereof or such other date set
forth herein that:
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(a) This Agreement creates a valid and continuing ownership
interest in the Account Property in favor of the Trustee. If the transfer and
assignment of the Trust Assets contemplated by this Agreement is deemed to be
other than a sale notwithstanding the intent of the parties hereto, this
Agreement creates a valid and continuing security interest (as defined in the
Relevant UCC) in the Account Property in favor of the Trustee, which security
interest is prior to all other security interests, and is enforceable as such as
against creditors of and purchasers from the Depositor.
(b) All of the Account Property has been and will have been
credited to one of the Securities Accounts. The Securities Intermediary for each
Securities Account has agreed to retain all assets credited to the Securities
Accounts as "financial assets" within the meaning of the Relevant UCC.
(c) It is the intention of the parties that the Trust owns and
has good and marketable title to the Account Property free and clear of any
lien, claim or encumbrance of any Person. If the transfer and assignment of the
Trust Assets contemplated by this Agreement is deemed to be other than a sale,
notwithstanding the intent of the parties hereto, the Depositor would own and
have good and marketable title to the Account Property free and clear of any
lien, claim or encumbrance of any Person (other than a security interest in
favor of the Trust).
(d) The Depositor has received all consents and approvals
required by the terms of the Account Property to the transfer to the Trustee on
behalf of the Trust of its interest and rights in the Account Property
hereunder.
(e) The Depositor has taken all steps necessary to cause the
Securities Intermediary to identify in its records the Trustee as the person
having a Security Entitlement against the Securities Intermediary in each of the
Securities Accounts.
(f) Other than the interest granted to the Trustee pursuant to
this Agreement, the Depositor has not pledged, assigned, sold or granted a
security interest in, or otherwise conveyed any of the Account Property. The
Depositor has not authorized the filing of and is not aware of any financing
statements against the Depositor that include a description of collateral
covering the Account Property other than any financing statement relating to the
interest granted to the Trustee hereunder or that has been terminated. The
Depositor is not aware of any judgment or tax lien filings against the
Depositor.
(g) The Securities Accounts are not in the name of any person
other than the Depositor or the Trustee. The Depositor has not consented to the
Securities Intermediary of any Securities Account to comply with entitlement
orders of any person other than the Trustee.
Section 2.04. EXECUTION AND DELIVERY OF CERTIFICATES.
The Trustee acknowledges the transfer and assignment to it of
the Trust Fund and acknowledges the issuance of the REMIC Regular Interests as
described in the Preliminary Statement and the Class A-R Certificates in
exchange therefor. The Trustee further acknowledges the transfer and assignment
to it of the REMIC Regular Interests and, concurrently with such transfer and
assignment, the Trustee has executed, authenticated and delivered to or
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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 the REMIC Regular Interests and to
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates and to perform the duties set forth in this
Agreement to the best of its ability, to the end that the interests of the
Holders of the Certificates may be adequately and effectively protected.
Section 2.05. REMIC MATTERS.
The Preliminary Statement sets forth the designations as
"regular interests" or "residual interests" and "latest possible maturity date"
for federal income tax purposes of all interests created hereby. The "Startup
Day" for purposes of the REMIC Provisions shall be the Closing Date. The Master
REMIC's fiscal year shall be the calendar year.
ARTICLE III
ADMINISTRATION OF
UNDERLYING CERTIFICATES
Section 3.01. PERMITTED WITHDRAWALS FROM THE DISTRIBUTION
ACCOUNT.
The Trustee shall withdraw funds from the Distribution Account
for distributions to Certificateholders, in the manner specified in this
Agreement (and withhold from the amounts so withdrawn, the amount of any taxes
that it is authorized to withhold pursuant to the last paragraph of Section
8.11). In addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(a) to withdraw any amount deposited in the Distribution
Account and not required to be deposited therein in accordance with Section
3.02(a);
(b) to withdraw any indemnity, expense, fee or other
reimbursement owed to it from the Trust pursuant to this Agreement, including,
without limitation, Section 8.05; and
(c) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 10.01 hereof.
Section 3.02. DISTRIBUTION ACCOUNT.
(a) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, on the day of
receipt (or if such day is not a Business Day, the immediately succeeding
Business Day), deposit in the Distribution Account and retain therein the
following:
(i) any distributions on the Trust Assets with
respect to the Underlying Distribution Date;
(ii) an amount equal to $100, which shall be remitted
by the Depositor to the Trustee for deposit in the Distribution Account
on the Closing Date; and
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(iii) any other amounts described hereunder which are
required to be deposited 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 3.01.
(b) The Trustee shall either (i) hold funds on deposit in the
Distribution Account uninvested in a trust or deposit account of the Trustee
with no liability for interest or other compensation thereon or (ii) invest
funds on deposit in the Distribution Account in Permitted Investments, 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 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 Distribution Account) shall be for
the benefit of the Trustee 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 Trustee 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
Distribution Account (except to the extent the Trustee is the obligor and has
defaulted thereon) or made in accordance with this Section 3.02.
(c) The Trustee shall give notice to each Rating Agency and
the Depositor of any proposed change of the location of the Distribution Account
prior to any change thereof.
ARTICLE IV
DISTRIBUTIONS AND ALLOCATION OF LOSSES
Section 4.01. PRIORITIES OF DISTRIBUTION.
(a) On each Distribution Date, the Trustee shall withdraw the
Available Funds (to the extent on deposit in the Distribution Account) from the
Distribution Account and, apply such funds to distributions on the Certificates
in the following order and priority and, in each case, to the extent of
Available Funds, subject to adjustment in accordance with Section 4.01(b):
FIRST, from the portion of Available Funds representing the
Interest Distribution Amount, to the Class A-1, Class A-2 and Class A-3
Certificates, PRO RATA based on the Accrued Certificate Interest of
each such Class, the related Accrued Certificate Interest for such
Distribution Date, any shortfall to be allocated among such Classes in
proportion to the amount of the Accrued Certificate Interest that would
have been distributed in the absence of such shortfall;
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SECOND, to the extent of remaining Available Funds, amounts
attributable to principal on the Certificates, in the following order
and priority:
(i) FIRST, to the Class A-R Certificates
until the Class Principal Balance of the Class A-R
Certificates has been reduced to zero; and
(ii) SECOND, from the portion of Available
Funds representing the Principal Distribution Amount,
to the Class A-1, Class A-2, Class A-3 and Class PO
Certificates, PRO RATA based on Class Principal
Balances, until their respective Class Principal
Balances are reduced to zero;
THIRD, to the Class A-R Certificates any remaining portion
(which is expected to be zero) of the Available Funds in the Master
REMIC for that Distribution Date.
(b) On each Distribution Date, the amount referred to in
clause (i) of the definition of Accrued Certificate Interest for each Class of
Certificates shall be reduced by the related Class' PRO RATA share of Net
Interest Shortfalls (based on such Class' Accrued Certificate Interest for such
Distribution Date without taking into account such Net Interest Shortfalls).
Section 4.02. ALLOCATION OF REALIZED LOSSES.
(a) On or prior to each Distribution Date, the Trustee shall
determine the total amount of Realized Losses and the allocation of such total
amount as set forth below. Any Realized Losses with respect to any Underlying
Mortgage Loan allocated to the Trust Assets for the related Distribution Date
shall be allocated to the Class A-1, Class A-2, Class A-3 and Class PO
Certificates, PRO RATA, based upon their respective Class Principal Balances
after giving effect to distributions of principal on such Distribution Date
until the Class Principal Balance of each such Class has been reduced to zero;
PROVIDED, HOWEVER, that the losses allocable to the Class A-2 Certificates,
under this paragraph, will first be allocated to the Class A-3 Certificates
until the Class Principal Balance of the Class A-3 Certificates has been reduced
to zero and then to the Class A-2 Certificates until the Class Principal Balance
of the Class A-2 Certificates has been reduced to zero.
(b) Any allocation of Realized Losses to a Certificate or any
reduction in the Certificate Principal Balance of a Certificate, pursuant to
Section 4.02(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.
Section 4.03. DISTRIBUTION DATE STATEMENTS TO
CERTIFICATEHOLDERS.
(a) On each Distribution Date, the Trustee shall make
available to each Certificateholder, the Rating Agencies and the Depositor, a
statement based in part on information included in each Underlying Distribution
Date Statement setting forth the following information with respect to the
related distribution (in the case of information furnished pursuant to (i), (ii)
and (iv) below, the amounts shall be expressed as a dollar amount per one
thousand dollars):
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(i) the amount thereof allocable to principal;
(ii) the amount thereof allocable to interest, any
unpaid Class Interest Shortfall included in such distribution and any
remaining unpaid Class Interest Shortfall after giving effect to such
distribution;
(iii) if the distribution to the Holders of such
Class of Certificates is less than the full amount that would be
distributable to such Holders if there were sufficient funds available
therefor, the amount of the shortfall and the allocation thereof as
between principal and interest;
(iv) the Class Principal Balance of each Class of
Certificates, after giving effect to the distribution of principal on
such Distribution Date;
(v) the aggregate amount of the Trustee Compensation
with respect to such Distribution Date pursuant to clause (b) of the
definition of Trustee Compensation;
(vi) the Pass-Through Rate for each such Class of
Certificates with respect to such Distribution Date;
(vii) the amount of principal and interest, if any,
distributed in respect of each of the Trust Assets on the related
Underlying Distribution Dates;
(viii) the principal balance of each class of the
Trust Assets, and the aggregate principal balance of all of the classes
of the Trust Assets, in each case, (a) immediately prior to the related
Distribution Date and (b) as of such Distribution Date after giving
effect to the distribution of principal made thereon on the related
Underlying Distribution Date; and
(ix) for the Underlying Trust, in tabular form, the
following information as of the related Underlying Distribution Date:
(1) the aggregate principal balance of the Underlying Mortgage Loans,
(2) the fractions expressed as percentages, the numerators of which are
the aggregate principal balance of the Underlying Mortgage Loans that
are (a) 31-60 days, (b) 61-90 days, and (c) 91 days or more delinquent,
(d) in foreclosure, and (e) related to REO properties, respectively,
and the denominators of which are, in each case, the aggregate
principal balance of the Underlying Mortgage Loans and (3) the
cumulative and current dollar amount of realized losses Underlying
Mortgage Loans allocated to the Trust Assets.
(b) The Trustee's responsibility for making the above
information available to the Depositor, the Rating Agencies and the
Certificateholders is limited to the availability, timeliness and accuracy of
the information provided to the Trust in the Underlying Distribution Date
Statements by the Master Servicer. The Trustee will make a copy of each
statement provided pursuant to this Section 4.03 (and, at its option, any
additional files containing the same information in an alternative format)
available each month to the Certificateholders, the Rating Agencies and other
parties to this Agreement via the Trustee's internet website located at
"▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in using the internet website can be obtained by
calling the
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Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. 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 Trustee shall have the right to change the way the Distribution Date
Statement is distributed in order to make such distribution more convenient
and/or more accessible and the Trustee shall provide timely and adequate
notification to the Certificateholders and the parties to this Agreement
regarding any such changes.
The Trustee shall also be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties (including the Master Servicer) for purposes of preparing the
Distribution Date Statement and may affix thereto any disclaimer it deems
appropriate in its reasonable discretion (without suggesting liability on the
part of any other party hereto).
As a condition to access the Trustee's internet website, the
Trustee may require registration and the acceptance of a disclaimer. The Trustee
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) and (a)(ii) of
this Section 4.03 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.
(d) The Trustee shall promptly furnish to the Depositor and,
upon the written request and at the expense of a Certificateholder, will make
available to such Certificateholder, copies of any notices, statements, reports
or other communications including, without limitation, the Underlying
Distribution Date Statements, received by the Trustee in its capacity as holder
of the Trust Assets, with respect to the Trust Assets.
(e) With respect to each Distribution Date, prior to the
issuance of the related monthly statement to Certificateholders pursuant to this
Section 4.03 (each, a "Distribution Date Statement"), the Trustee shall confirm
that it has received all distribution and/or servicing information required to
be provided to the Trustee by the Master Servicer for inclusion in such
Distribution Date Statement. In the event the Trustee determines that any such
information has not been provided as required or is materially incorrect, the
Trustee shall immediately notify the Master Servicer and use its reasonable best
efforts to cause the Master Servicer to provide or correct, as the case may be,
such information promptly (but in any event in time to permit the Trustee to
distribute the Distribution Date Statement at the time required in this
Agreement).
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ARTICLE V
THE CERTIFICATES
Section 5.01. THE CERTIFICATES.
The Certificates shall be substantially in the forms attached
hereto as Exhibit A through D. The Certificates shall be issuable in registered
form, in the minimum denominations, integral multiples in excess thereof (except
that one Certificate in each Class may be issued in a different amount which
must be in excess of the applicable minimum denomination) and aggregate
denominations per Class set forth in the Preliminary Statement.
Subject to Section 10.01 hereof respecting the final
distribution on the Certificates, on each Distribution Date the Trustee shall
make distributions to each Certificateholder of record on the preceding Record
Date either (x) by wire transfer in immediately available funds to the account
of such holder at a bank or other entity having appropriate facilities therefor,
if such Holder has so notified the Trustee in writing at least five Business
Days prior to the related Record Date or (y) by check mailed by first class mail
to such Certificateholder at the address of such holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trustee, notwithstanding that such individuals or any of them
have ceased to be so authorized prior to the 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.
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At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for
any registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required by the
Trustee.
All Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of an ERISA-Restricted Certificate shall be
made (other than to the Depositor or an affiliate of the Depositor) unless the
Trustee shall have received in accordance with paragraph 13 of Exhibit E, in
form and substance satisfactory to such Trustee (i) a representation that such
transferee is not an employee benefit plan or other retirement arrangement
subject to Section 406 of ERISA and/or Section 4975 of the Code, or a person
acting for, on behalf of or with the assets of, any such plan or arrangement or
(ii) an Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel
shall not be an expense of the Trustee, the Depositor 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 non-exempt prohibited
transactions under Section 406 of ERISA and/or Section 4975 of the Code and will
not subject the Trustee, the Depositor, the Underlying Trustee, the Underlying
Depositor or the Trust Administrator to any obligation in addition to those
expressly undertaken in this Agreement. For purposes of the preceding sentence,
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, any purported transfer of an ERISA-Restricted Certificate, to or on
behalf of an employee benefit plan or other retirement arrangement subject to
ERISA or the Code in violation of the above restrictions 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.
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(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 E and a
certification of the transferor (other than the Depositor or an
affiliate thereof) certifying as to certain facts surrounding the
transfer in substantially the form set forth in Exhibit F.
(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 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
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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.
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 or the
Trustee 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 as representative 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 representative
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (vi) the Trustee may conclusively rely and
shall be fully protected in relying upon information furnished by the Depository
with respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry
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Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee
in writing that the Depository is no longer willing, qualified or able to
properly discharge its responsibilities as Depository, and (ii) the Depositor is
unable to locate a qualified successor or (y) the Depositor notifies the Trustee
in writing, with the consent of the applicable Depository Participants, that it
elects to terminate the book-entry system through the Depository, the Trustee,
upon receipt of notice of such event, shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully-registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to the
Trustee of the related Class of Certificates by the Depository, accompanied by
the instructions from the Depository for registration, the Trustee shall issue
the Definitive Certificates. Neither the 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
Trustee such security or indemnity as may be required by the Trustee to save it
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
and its counsel) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 5.04. PERSONS DEEMED OWNERS.
The Trustee and any agent of the Trustee may treat the Person
in whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and none of the Trustee nor any agent of the Trustee
shall be affected by any notice to the contrary.
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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 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 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 of the Trustee. 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
Section 6.01. LIABILITIES OF THE DEPOSITOR.
The Depositor shall be liable in accordance herewith only to
the extent of the obligations specifically imposed upon and undertaken by it
herein.
Section 6.02. MERGER OR CONSOLIDATION OF THE DEPOSITOR.
The Depositor will keep in full effect its existence, rights
and franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof and will 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 and to perform its
respective duties under this Agreement.
Any Person into which the Depositor may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor 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.
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Section 6.03. LIMITATION ON LIABILITY OF THE DEPOSITOR AND
OTHERS.
None of the Depositor or any of the directors, officers,
employees or agents of the Depositor shall be under any liability to the Trust
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; PROVIDED, HOWEVER,
that this provision shall not protect the Depositor against any breach of
representations or warranties made by it herein or protect the Depositor from
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in the performance of its duties hereunder or by reason
of reckless disregard of its obligations and duties hereunder. The Depositor and
any director, officer, employee or agent of the Depositor may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Depositor and any director,
officer, employee or agent of the Depositor shall be indemnified by the Trust
Fund and held harmless against any loss, liability or expense incurred in
connection with (i) any audit, controversy or judicial proceeding relating to a
governmental taxing authority, (ii) the performance of its duties and
obligations and the exercise of its rights under this Agreement or the
Certificates which constitute "unanticipated expenses incurred by the REMIC"
within the meaning of the REMIC Provisions, or (iii) any legal action (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder. The
Depositor shall not 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 the Depositor 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 shall be entitled to be
reimbursed therefor out of the Distribution Account.
Section 6.04. RIGHTS OF CERTIFICATEHOLDERS AS HOLDERS OF THE
TRUST ASSETS.
The Depositor hereby expressly agrees that each
Certificateholder, to the extent of its ownership interest in the Trust Assets,
shall have the same rights against the Depositor, acting in its capacity as
depositor with respect to the Underlying Trust Fund, as if such
Certificateholder held the Trust Assets directly.
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ARTICLE VII
[RESERVED]
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. DUTIES OF TRUSTEE.
The Trustee shall undertake to perform such duties and only
such duties as are specifically set forth in this Agreement.
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) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in
good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be conclusively determined by
a court of competent jurisdiction, such determination no longer subject
to appeal, that the Trustee was negligent in ascertaining the pertinent
facts; and
(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
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available to the Trustee, or exercising or omitting to exercise any
trust or power conferred upon the Trustee under this Agreement.
Section 8.02. CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 8.01:
(i) the Trustee may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature
of any such party or parties;
(ii) the Trustee may consult with counsel, financial
advisers or accountants and the advice of any such counsel, financial
advisers or accountants or any Opinion of Counsel, to the extent such
advice is within the expertise of such counsel, financial advisers or
accountants, 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 in its
individual capacity for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(iv) the 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 Certificateholders 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. Nothing in this clause (iv) shall derogate from the
obligation of the Trustee to observe any applicable law prohibiting
disclosure of information regarding the Certificateholders;
(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
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believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it; and
(vii) the Trustee shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement, other than its obligation to give notices pursuant to this
Agreement, or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which may be incurred therein or
thereby.
The Trustee shall have no duty (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing thereof, (B) to see
to the provision of any insurance or (C) to see to the payment or discharge of
any tax, assessment, or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 8.03. TRUSTEE NOT LIABLE FOR CERTIFICATES.
The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor 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 (other than
the signature and authentication of the Trustee on the Certificates).
Section 8.04. TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual or any other capacity other than
as Trustee hereunder 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.
As compensation for its activities hereunder, the Trustee
shall be entitled to retain or withdraw from the Distribution Account an amount
equal to any accrued and unpaid Trustee Compensation. The Trustee and any
director, officer, employee, agent or "control person" within the meaning of the
Securities Act of 1933, as amended, and the Securities Exchange of 1934, as
amended ("Control Person"), of the Trustee shall be indemnified by the Trust and
held harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal action
relating to (a) this Agreement, (b) the Trust Assets or (c) the Certificates,
other than any such loss, liability or expense incurred by reason of willful
misfeasance, bad faith or
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negligence in the performance of any of the Trustee's duties hereunder, (ii)
incurred in connection with the performance of any of the Trustee's duties
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 or (y) 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) incurred by reason of any action of the
Trustee taken at the direction of the Certificateholders. 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 (i) a state bank
or trust company or a national banking association organized and doing business
under the laws the United States of America or any state thereof, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating of at least investment grade
and (ii) the Trust Administrator and Master Servicer. 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.
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 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; provided, however, notwithstanding the
foregoing, the Trustee may not resign if following such resignation the Trustee
will continue to be the Master Servicer or Trust Administrator. If no successor
trustee meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment
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within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 hereof and shall fail to resign
after written request thereto by the Depositor, or if at any time the Trustee
shall become incapable of acting, or shall be adjudged as bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor may remove the Trustee
and appoint a successor trustee by written instrument, in triplicate, one copy
of which instrument shall be delivered to the Trustee so removed 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 Trustee so removed and one
complete set to the successor so appointed. Notice of any removal of the Trustee
shall be given to each Rating Agency by the successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance by the successor trustee of appointment as
provided in Section 8.08 hereof.
Section 8.08. SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 8.07
hereof shall execute, acknowledge and deliver to the Depositor and to its
predecessor trustee 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 and the predecessor trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 hereof and its
appointment shall not adversely affect the then current rating of the
Certificates, as confirmed in writing by each Rating Agency.
Upon acceptance by a successor trustee of appointment as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to all Holders of Certificates. If such
successor trustee fails to mail such notice within 10 days
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after acceptance by the successor trustee of appointment, the Depositor shall
cause such notice to be mailed.
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 may at the time be located, the Trustee shall
have the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Trustee 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
Trustee may consider necessary or desirable. 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 shall be conferred or
imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed as Trustee 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 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
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(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 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 Trustee covenants and agrees that it shall act as agent on
behalf of such REMIC and that in such capacity it shall:
(a) prepare, execute, and file, or cause to be prepared and
filed, in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
(REMIC) Income Tax Return (Form 1066 or any successor form adopted by the
Internal Revenue Service) and prepare and file or cause to be prepared and filed
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to such
REMIC, containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish or cause to be furnished to Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby,
including without limitation, the calculation of any original issue discount
using the Prepayment Assumption;
(b) apply for an Employee Identification Number from the
Internal Revenue Service via Form SS-4 or other acceptable method for such REMIC
and within thirty days of the Closing Date, furnish or cause to be furnished to
the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
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together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make or cause to be made elections that such assets be
treated as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) provide information necessary for the computation of tax
imposed on the transfer of a Residual Certificate to a Person that is not a
Permitted Transferee described in clauses (i)-(iv) of the definition thereof, or
an agent (including a broker, nominee or other middleman) of a non-Permitted
Transferee (the reasonable cost of computing and furnishing such information may
be charged to the Person liable for such tax);
(e) to the extent that they are under its control, conduct
matters relating to such assets at all times that any Certificates are
outstanding so as to maintain the status as a REMIC under the REMIC Provisions;
(f) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the REMIC status;
(g) not permit the creation of any interests in such REMIC
other than the Certificates;
(h) not receive any amount representing a fee or other
compensation for services (except as otherwise permitted by this Agreement);
(i) receive any income attributable to any asset which is
neither a "qualified mortgage" nor a "permitted investment" within the meaning
of the REMIC Provisions;
(j) not receive any contributions to such REMIC after the
Startup Day that would be subject to tax under Section 860G(d) of the Code;
(k) not dispose of any assets of such REMIC at a gain if such
disposition would be a "prohibited transaction" within the meaning of Section
860F(a)(2) of the Code;
(l) pay, from the sources specified in the last paragraph of
this Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on such REMIC prior to its
termination when and as the same shall be due and payable;
(m) execute all federal, state or local income tax or
information returns as may be required by the Code or state or local laws,
regulations or rules, or ensure that such returns be signed by 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.
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The Holder of the largest Percentage Interest of the Class A-R
Certificates shall act as "tax matters person" within the meaning of Treasury
Regulations Section 1.860F-4(d) for the Master REMIC. The Trustee is hereby
designated as agent of such Class A-R Certificateholder for such purposes (or if
the Trustee is not so permitted, such Holder shall be the tax matters person in
accordance with the REMIC Provisions). In such capacity, the Trustee shall, as
and when necessary and appropriate, represent the Master 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 the Master REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of the Master REMIC, and otherwise act on behalf of the Master REMIC in
relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Trustee within ten (10) days after the Closing Date all information or data that
the Trustee 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 Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, reasonably request
in order to enable the Trustee to perform its duties as set forth herein. The
Depositor hereby indemnifies the Trustee for any losses, liabilities, damages,
claims or expenses of the Trustee arising from any errors or miscalculations of
the Trustee that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis.
In the event that any tax is imposed on "prohibited
transactions" of any REMIC hereunder as defined in Section 860F(a)(2) of the
Code, on the "net income from foreclosure property" of such REMIC as defined in
Section 860G(c) of the Code, on any contribution to such REMIC after the Startup
Day pursuant to Section 860G(d) of the Code, or any other tax is imposed, if not
paid as otherwise provided for herein, such tax shall be paid by (i) the
Trustee, if any such other tax arises out of or results from a breach by the
Trustee of any of its obligations under this Agreement or (ii) in all other
cases, or in the event that the Trustee fails to honor its obligations under the
preceding clause (i), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 3.01.
Section 8.12. PERIODIC FILINGS.
(a) With respect to each Distribution Date, prior to the
issuance of the related monthly statement to Certificateholders pursuant to
Section 4.03 (each, a "Distribution Date Statement"), the Trustee shall confirm
that it has received all distribution information required to be provided to the
Trustee by the Master Servicer for inclusion in such Distribution Date
Statement. In the event the Trustee determines that any such information has not
been provided as required or is materially incorrect, the Trustee shall
immediately notify the Master Servicer and use its reasonable best efforts to
cause the Master Servicer to provide or correct, as the case may be, such
information promptly (but in any event in time to permit the Trustee to
distribute the Distribution Date Statement at the time required in this
Agreement).
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(b) As part of the Form 10-K required to be filed pursuant to
paragraph (c) of this Section 8.12, the Trustee shall include the annual
compliance certificate and the report of the Trustee's independent public
accountants required pursuant to Sections 8.13 and 8.14 hereof, respectively, as
well as a report of any significant deficiencies relating to the Trustee's
performance of its obligations under this Agreement.
(c) The Trustee shall reasonably cooperate with the Depositor
to enable the Trust to satisfy its reporting requirements under the Exchange
Act. The Trustee shall prepare on behalf of the Trust any Forms 8-K (or other
comparable required Form containing the same or comparable information or other
information mutually agreed upon) and 10-K customary for similar securities as
required by the Exchange Act and the rules and regulations promulgated
thereunder, and the Trustee shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such forms on
behalf of the Trust.
(d) Each Form 8-K shall be filed by the Trustee within 15 days
after each Distribution Date and shall include a copy of the statement to
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
March 30th of each year beginning in 2005 (or such earlier date as may be
required by the Exchange Act and the rules and regulations promulgated
thereunder), the Trustee shall file a Form 10-K, in substance as required by
applicable law or applicable Securities and Exchange Commission staff's
interpretations. Such Form 10-K shall include as exhibits the annual statements
of compliance, the accountant's reports and any report of significant
deficiencies relating to the Trustee's performance of its obligations under this
Agreement described in paragraph (b) of this Section 8.12, to the extent they
have been timely delivered to the Trustee. The Trustee shall have no liability
with respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Trustee's inability or failure to obtain any
information not resulting from its own negligence, bad faith or willful
misconduct. Each Form 10-K shall also include a certification in the form
attached hereto as Exhibit F or in such other form as may be required by Rules
13a-14 and 15d-14 under the Exchange Act, as applicable, and any directives or
interpretations thereof by the Securities and Exchange Commission (the
"Certification"), which certification shall be signed by a Responsible Officer
of the Trustee.
(e) Upon any filing with the Securities and Exchange
Commission, the Trustee shall promptly deliver to the Depositor a copy of such
executed report, statement or information.
(f) The Trustee shall not file a Form 15 Suspension
Notification with respect to the Trust unless specifically directed in writing
to do so by the Depositor.
Section 8.13. ANNUAL COMPLIANCE CERTIFICATE.
The Trustee shall deliver to the Depositor and each Rating
Agency on or before March 15th of each year, commencing with March 15, 2005, an
Officer's Certificate, signed by two officers of the Trustee, stating, as to the
signers thereof, that (i) a review of the activities of the Trustee during the
preceding calendar year and of the performance of the Trustee under this
Agreement has been made under such officers' supervision and (ii) to the best of
such officers' knowledge, based on such review, the Trustee has fulfilled all
its obligations under this
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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
officers and the nature and status thereof.
Section 8.14. ANNUAL ACCOUNTANTS' REVIEW.
On or before March 15th of each year, commencing with March
15, 2005, the Trustee, at the Depositor's expense, shall cause a nationally or
regionally recognized firm of independent public accountants (who may also
render other services to 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 Trustee's
performance of its duties and obligations in accordance with minimum servicing
standards (or similar standards appropriate for a resecuritization) under this
Agreement and that, on the basis of such examination, such performance is in
compliance with this Agreement, except for such significant exceptions or errors
in records that such firm reports. Copies of such statement shall be provided by
the Trustee to any Certificateholder upon request at the Trustee's expense.
Section 8.15. VOTING ON THE TRUST ASSETS.
Pursuant to the Underlying Pooling and Servicing Agreement,
the Trustee, as holder of the Trust Assets, will represent the Voting Rights (as
defined in the Underlying Pooling and Servicing Agreement) of the
Certificateholders and will vote as directed by a majority of such
Certificateholders, or absent any such direction, in the best interest of such
Certificateholders.
ARTICLE IX
[RESERVED]
ARTICLE X
TERMINATION
Section 10.01. FINAL DISTRIBUTION ON THE CERTIFICATES.
If on any date, the Trustee determines that there are no Trust
Assets still outstanding and no other funds or assets in the Trust Fund other
than the funds in the Distribution Account, the Trustee shall promptly send a
final distribution notice to each Certificateholder.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which related Certificateholders may surrender their
Certificates for payment of the final distribution and cancellation, shall be
given promptly by the Trustee by letter to related Certificateholders mailed not
earlier than the 15th day of the month preceding the month of such final
distribution and not later than the 5th day of the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the related Certificates will be made upon presentation
and surrender of such Certificates at the office
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therein designated, (b) the location of the office or agency at which such
presentation and surrender must be made, and (c) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the related Certificates at the office
therein specified. The Trustee will give such notice to each Rating Agency at
the time such notice is given to related Certificateholders.
Upon presentation and surrender of the related Certificates,
the Trustee shall cause to be distributed to the Certificateholders of each
related Class, in the order set forth in Section 4.01 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 accrued interest thereon, and (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account (other than
the amounts retained to meet claims) after application pursuant to clause (i)
above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take reasonable steps, or may appoint an agent to take reasonable steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets of the Master REMIC which remain subject hereto and the Class A-R
Certificateholders as the beneficial owner of the residual interest issued by
the REMIC created under this Agreement shall be entitled to all unclaimed funds
and other assets of the REMIC created under this Agreement, which remain subject
hereto, and Certificateholders who have not surrendered Certificates shall look
only to such Class A-R Certificateholders with respect to any such unclaimed
funds and other assets.
Section 10.02. ADDITIONAL TERMINATION REQUIREMENTS.
(a) In the event of any termination pursuant to Section 10.01,
and unless the Trustee has been supplied with an Opinion of Counsel to the
effect that the failure to comply with the requirements of this Section 10.02(a)
will not (i) result in the imposition of taxes on "prohibited transactions" as
defined in section 860F of the Code on the REMIC created under this Agreement or
(ii) cause such REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding, the Master REMIC shall be terminated in accordance
with the following: the notice given by the Trustee under Section 10.01 shall
provide that such notice constitutes the adoption of a plan of complete
liquidation of the Master REMIC 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 Master REMIC created under this Agreement.
(b) By its acceptance of a Residual Certificate, the Holder
thereof hereby agrees to adopt such a plan of complete liquidation and to take
such other action in connection therewith as may be reasonably required to
liquidate and otherwise terminate the Master REMIC.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. AMENDMENT.
This Agreement may be amended from time to time by the
Depositor and the Trustee without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective provision
herein or to supplement any provision herein which may be inconsistent with any
other provision herein or in the Prospectus Supplement, (iii) to add to the
duties of the Depositor or the Trustee, (iv) to add any other provisions with
respect to matters or questions arising hereunder or (v) to modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement; PROVIDED that any action pursuant to clause (iv) or (v) above shall
not, as evidenced by an Opinion of Counsel addressed to the Trustee (which
Opinion of Counsel shall be an expense of the party requesting the amendment, or
if the Trustee requests the amendment, the Trust Fund), adversely affect in any
material respect the interests of any Certificateholder; PROVIDED, HOWEVER, that
the amendment shall not be deemed to adversely affect in any material respect
the interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates; it being understood and agreed that any such letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee and the Depositor 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 created under this Agreement as a REMIC under the Code, (ii) avoid or
minimize the risk of the imposition of any tax on any REMIC pursuant to the Code
that would be a claim at any time prior to the final redemption of the
Certificates or (iii) comply with any other requirements of the Code, provided
that the Trustee has been provided an Opinion of Counsel addressed to the
Trustee, 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 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
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aforesaid percentages of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement (other than
pursuant to the second preceding paragraph) unless it shall have first received
an Opinion of Counsel addressed to the Trustee, which opinion shall not be an
expense of the Trustee or the Trust Fund, to the effect that such amendment is
permitted hereunder and will not cause the imposition of any tax under the REMIC
Provisions on the Master REMIC or the Certificateholders or cause the Master
REMIC created under this Agreement 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 11.01.
Section 11.02. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.03. 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
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shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of New York and (ii) the conveyance provided for in
this Agreement shall be deemed to be an assignment and a grant by the Depositor
to the Trustee, for the benefit of the Certificateholders, of a security
interest in all of the assets that constitute the Trust Fund, whether now owned
or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholder.
Section 11.04. NOTICES.
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) Any material change or amendment to this
Agreement;
(ii) The resignation or termination of the Trustee
and the appointment of any successor; and
(iii) The final payment to Certificateholders.
(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 Trustee, the Corporate Trust Office, or such other
address as the Trustee may hereafter furnish to each other party to this
Agreement in writing and (c) 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 11.05. 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.
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Section 11.06. 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 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 11.06, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.07. 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.
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ARTICLE XII
SECURITIES ACCOUNT
Section 12.01. THE SECURITIES ACCOUNT.
(a) The Trustee shall establish one or more "Securities
Accounts" in the name of the Securities Intermediary that shall be held by the
Trustee for the benefit of the Certificateholders. Each Securities Account shall
be a segregated, non-interest bearing trust account maintained with the Trustee
and established for the purpose of holding the Trust Assets; such account may be
the same account as the Distribution Account. Each Securities Account shall be
an Eligible Account. The Trustee hereby appoints ▇▇▇▇▇ Fargo Bank, N.A., as
Securities Intermediary with respect to the Securities Accounts, and the
Securities Intermediary shall hold, for the benefit of the Certificateholders,
the Securities Accounts and the Security Entitlements to all Financial Assets
credited to the Securities Accounts including without limitation all amounts,
securities, investments, Financial Assets, investment property and other
property from time to time deposited in or credited to the Securities Accounts
and all proceeds thereof. Amounts held from time to time in the Securities
Accounts will continue to be held by the Securities Intermediary on behalf of
the Trustee for the benefit of the Certificateholders. Upon the termination of
the Trust, the Trustee shall inform the Securities Intermediary of such
termination. By acceptance of their Certificates or interests therein, the
Certificateholders shall be deemed to have appointed ▇▇▇▇▇ Fargo Bank, N.A., as
Securities Intermediary. ▇▇▇▇▇ Fargo Bank, N.A. hereby accepts such appointment
as Securities Intermediary.
(b) With respect to the Account Property credited to a
Securities Account, the Securities Intermediary agrees that:
(i) any Account Property that is held in deposit
accounts shall be held solely in a bank approved in writing by each
Rating Agency; provided, that ▇▇▇▇▇ Fargo Bank, N.A. shall be deemed to
be so approved for so long as it maintains a short term debt rating by
S&P of at least "A1+" and a long term debt rating by S&P of at least
"AA-"; and each such deposit account shall be subject to the exclusive
custody and control of the Securities Intermediary, and the Securities
Intermediary shall have sole signature authority with respect thereto;
(ii) the sole assets permitted in a Securities
Account shall be those as the Securities Intermediary agrees to treat
as Financial Assets; and
(iii) any such Account Property that is, or is
treated as, a Financial Asset shall be physically delivered
(accompanied by any required endorsements) to, or credited to an
account in the name of, the Securities Intermediary or other eligible
institution maintaining a Securities Account in accordance with the
Securities Intermediary's customary procedures such that the Securities
Intermediary or such other institution establishes a Security
Entitlement in favor of the Trustee with respect thereto over which the
Securities Intermediary or such other institution has Control.
-43-
(c) The Securities Intermediary hereby confirms that (A) a
Securities Account is an account to which Financial Assets are or may be
credited, and the Securities Intermediary shall, subject to the terms of this
Agreement, treat the Trustee as entitled to exercise the rights that comprise
any Financial Asset credited to a Securities Account, (B) all Account Property
in respect of a Securities Account will be promptly credited by the Securities
Intermediary to such Securities Account, and (C) all securities or other
property underlying any Financial Assets credited to a Securities Account shall
be registered in the name of the Trustee, endorsed to the Trustee or in blank or
credited to another securities account maintained in the name of the Securities
Intermediary and in no case will any Financial Asset credited to a Securities
Account be registered in the name of the Depositor, payable to the order of the
Depositor or specially endorsed to the Depositor except to the extent the
foregoing have been specially endorsed to the Trustee or in blank.
(d) The Securities Intermediary hereby agrees that each item
of property (whether investment property, Financial Asset, security, instrument
or cash) credited to a Securities Account shall be treated as a Financial Asset.
(e) If at any time the Securities Intermediary shall receive
any order from the Trustee directing transfer or redemption of any financial
asset relating to a Securities Account, the Securities Intermediary shall comply
with such entitlement order without further consent by the Depositor or any
other Person.
(f) In the event that the Securities Intermediary has or
subsequently obtains by agreement, operation of law or otherwise a security
interest in a Securities Account or any Financial Asset credited thereto, the
Securities Intermediary hereby agrees that such security interest shall be
subordinate to the ownership interest of the Trustee. The Financial Assets
credited to a Securities Account will not be subject to deduction, set-off,
banker's lien, or any other right in favor of any Person other than the Trustee
(except that the Securities Intermediary may set off the face amount of any
checks which have been credited to a Securities Account but are subsequently
returned unpaid because of uncollected or insufficient funds).
(g) There are no other agreements entered into between the
Securities Intermediary in such capacity and the Depositor with respect to a
Securities Account. In the event of any conflict between this Agreement (or any
provision of this Agreement) and any other agreement now existing or hereafter
entered into, the terms of this Agreement shall prevail.
(h) The rights and powers granted herein to the Trustee have
been granted in order to perfect its ownership interest in the Securities
Accounts and the Security Entitlements to the Financial Assets credited thereto
and are powers coupled with an interest and will neither be affected by the
dissolution or bankruptcy of the Depositor nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until the ownership interest of the Trustee in the Securities Accounts and such
Security Entitlements has been terminated pursuant to the terms of this
Agreement and the Trustee has notified the Securities Intermediary of such
termination in writing.
(i) Notwithstanding anything else contained herein, the
Trustee agrees that the Securities Accounts will be established only with the
Securities Intermediary or another
-44-
institution meeting the requirements of this Section, which agrees substantially
as follows: (1) it will comply with Entitlement Orders related to such account
issued by the Trustee without further consent by the Depositor; (2) until
termination of the Agreement, it will not enter into any other agreement related
to such account pursuant to which it agrees to comply with Entitlement Orders of
any Person other than the Trustee; and (3) all assets delivered or credited to
it in connection with such account and all investments thereof will be promptly
credited to such account.
(j) The Depositor agrees to take or cause to be taken such
further actions, to execute, deliver and file or cause to be executed, delivered
and filed such further documents and instruments (including, without limitation,
any financing statements under the Relevant UCC or this Agreement) as may be
determined to be necessary, in order to perfect the interests created by this
Section and otherwise effectuate the purposes, terms and conditions.
Section 12.02. LIABILITY OF THE SECURITIES INTERMEDIARY.
The Securities Intermediary shall be liable in accordance
herewith only to the same extent as the Trustee shall be liable hereunder as
provided in Article VIII hereof.
-45-
IN WITNESS WHEREOF, the Depositor, the Trustee and the
Securities Intermediary have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
MORTGAGE ASSET SECURITIZATION
TRANSACTIONS, INC., as Depositor
By: /s/ ▇▇▇▇▇ Ma
--------------------------------------
Name: ▇▇▇▇▇ Ma
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: DIRECTOR
▇▇▇▇▇ FARGO BANK, N.A., as Trustee and
Securities Intermediary
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 2004 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
[SEAL]
My commission expires:
________________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 2004 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
[SEAL]
My commission expires:
________________________________
STATE OF __________________ )
) ss.:
COUNTY OF__________________ )
On the ___ day of December, 2004 before me, a notary public in
and for said State, personally appeared _________________ known to me to be a
__________________ of ▇▇▇▇▇ Fargo Bank, N.A., one of the entities 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
[SEAL]
My commission expires:
________________________________
EXHIBIT A
(FORM OF CLASS A-[1][2][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").
Certificate No.: [1]
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Last Scheduled Distribution Date: August 25, 2032
Pass-Through Rate: [________]%
[Initial Certificate Principal Balance of this Certificate ("Denomination"):] $[____________]
[Initial Certificate Principal Balances of all Certificates of this Class:] $[____________]
CUSIP: [_____________]
A-1
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR SEASONED SECURITIZATION TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
Class A-[___]
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 five
classes of previously issued mortgage pass-through
certificates representing a senior ownership interest in a
pool of conventional mortgage loans secured by first liens on
one- to four-family residential properties (the "TRUST
ASSETS")
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, or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. 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 Trust
Assets deposited by Mortgage Asset Securitization Transactions, Inc. (the
"DEPOSITOR"). The Trust Fund was created pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "AGREEMENT") between the Depositor and
▇▇▇▇▇ Fargo Bank, N.A., as trustee (in such capacity, the "TRUSTEE") and as
securities intermediary. Distributions on this Certificate will be made
primarily from collections on the Trust Assets pursuant to the terms of the
Agreement. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-2
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 29, 2004
▇▇▇▇▇ FARGO BANK, N.A.
as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class A-_ Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Trustee
By:________________________________
Authorized Signatory
EXHIBIT B
(FORM OF CLASS PO 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 A PRINCIPAL ONLY CERTIFICATE AND IS NOT ENTITLED TO
ANY DISTRIBUTIONS IN RESPECT OF INTEREST.
Certificate No.: [1]
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Last Scheduled Distribution Date: August 25, 2032
Initial Certificate Principal Balance of this Certificate ("Denomination"): $[______]
Initial Certificate Principal Balances of all Certificates of this Class: $364,168
CUSIP: 55265W CD 3
B-1
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR SEASONED SECURITIZATION TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
Class PO
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 five
classes of previously issued mortgage pass-through
certificates representing a senior ownership interest in a
pool of conventional mortgage loans secured by first liens on
one- to four-family residential properties (the "TRUST
ASSETS")
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 or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. 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 Trust
Assets deposited by Mortgage Asset Securitization Transactions, Inc. (the
"DEPOSITOR"). The Trust Fund was created pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "AGREEMENT") between the Depositor and
▇▇▇▇▇ Fargo Bank, N.A. as trustee (in such capacity, the "TRUSTEE") and as
securities intermediary. Distributions on this Certificate will be made
primarily from collections of principal on the Trust Assets pursuant to the
terms of the Agreement. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
B-2
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 29, 2004
▇▇▇▇▇ FARGO BANK, N.A.
as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class PO Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Trustee
By:________________________________
Authorized Signatory
EXHIBIT C
(FORM OF RESIDUAL 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
REFERRED TO HEREIN 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.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (A) A REPRESENTATION LETTER
TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE, OR A
PERSON ACTING FOR, ON BEHALF OF OR WITH ASSETS OF, ANY SUCH PLAN OR ARRANGEMENT
OR (B) AN OPINION OF COUNSEL, IN EACH CASE, IN ACCORDANCE WITH THE PROVISIONS OF
THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO ERISA OR THE
CODE SHALL BE VOID AND OF NO EFFECT.
Certificate No.: 1
Cut-off Date: December 1, 2004
First Distribution Date: January 25, 2005
Last Scheduled Distribution Date: August 25, 2032
Initial Certificate Principal Balance of this Certificate ("Denomination"): $100
Initial Certificate Principal Balances of all Certificates of this Class: $100
CUSIP: 55265W CE 1
C-1
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR SEASONED SECURITIZATION TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
Class A-R
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 five
classes of previously issued mortgage pass-through
certificates representing a senior ownership interest in a
pool of conventional mortgage loans secured by first liens on
one- to four-family residential properties (the "TRUST
ASSETS")
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 or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that UBS Securities LLC 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 Trust
Assets deposited by Mortgage Asset Securitization Transactions, Inc. (the
"DEPOSITOR"). The Trust Fund was created pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "AGREEMENT") between the Depositor and
▇▇▇▇▇ Fargo Bank, N.A. as trustee (in such capacity, the "TRUSTEE") and as
securities intermediary. Distributions on this Certificate will be made
primarily from collections on the applicable Mortgage Loans pursuant to the
terms of the Agreement. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
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: (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 or
other retirement arrangement subject to Section 406 of ERISA and/or Section 4975
of the Code, or a person acting for, on behalf or with the assets of, any such
plan or arrangement or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that the
C-2
purchase or holding of such Class A-R Certificate will not result in non-exempt
prohibited transactions under Section 406 of ERISA and/or Section 4975 of the
Code and will not subject the Trustee, the Depositor, the Underlying Trustee,
the Underlying Depositor or the Trust Administrator to any obligation in
addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of such parties or the Trust Fund. (Such representations shall
be deemed to have been made to the Trustee by the transferee's (including an
initial acquirer's) acceptance of a Class A-R Certificate and by a beneficial
owner's acceptance of its interest in a Class A-R Certificate.) 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 or other retirement
arrangement subject to ERISA or the Code without the Opinion of Counsel
satisfactory to the Trustee as described above 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.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: December 29, 2004
▇▇▇▇▇ FARGO BANK, N.A.
as Trustee
By:_______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class A-R Certificates referred to in the
within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.
as Trustee
By:________________________________
Authorized Signatory
EXHIBIT D
(Form of Reverse of Certificates)
MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC.
MASTR SEASONED SECURITIZATION TRUST 2004-2
Mortgage Pass-Through Certificates, Series 2004-2
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Asset Securitization Transactions, Inc. MASTR Seasoned
Securitization Trust 2004-2, Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "CERTIFICATES"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "DISTRIBUTION DATE"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month immediately preceding
the month in which the related Distribution Date occurs.
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 Corporate Trust 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
D-1
Certificateholders under the Agreement at any time by the Depositor 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 offices that the Trustee designates for such purposes,
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 and the Trustee and any agent of the Depositor 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 Trustee, nor any
such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement will
terminate upon the maturity or other liquidation of the last Trust Assets
remaining in the Trust Fund. 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.
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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 E
FORM OF CLASS A-R TRANSFER AFFIDAVIT
MASTR SEASONED SECURITIZATION TRUST 2004-2
Mortgage Asset Securitization Transactions, Inc.
Mortgage Pass-Through Certificates
Series 2004-2
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 Certificate (the
"CERTIFICATE") issued pursuant to the Trust Agreement dated as of December 1,
2004 (the "AGREEMENT") between Mortgage Asset Securitization Transactions, Inc.,
as depositor and ▇▇▇▇▇ Fargo Bank, N.A. as trustee (in such capacity, the
"TRUSTEE") and as securities intermediary. Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to such
terms in the Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as
of the date of the Transfer, a Permitted Transferee. The Transferee is acquiring
its Ownership Interest in the Certificate either (i) for its own account or (ii)
as nominee, trustee or agent for another Person and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that
(i) a tax will be imposed on Transfers of the Certificate to Persons that are
Disqualified Organizations; (ii) such tax will be imposed on the transferor, or,
if such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is a Disqualified Organization, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is not a Disqualified Organization and, at the time
of Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a
tax will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is a
Disqualified Organization is the record holder of an interest in such entity.
The Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is not a Disqualified Organization and the
pass-through entity does not have actual knowledge that such affidavit is false;
provided, that a pass-through entity which is
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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 F to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate. The Transferee historically has paid its debts as they have
become due and intends to do so in the future. The Transferee understands that
the taxable income and tax liability with respect to this Certificate will
exceed distributions with respect to the Certificate in some or all periods and
intends to pay all taxes with respect to the Certificate as they become due.
8. The Transferee's taxpayer identification number is
__________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30) or is not a U.S. Person and has furnished the Transferor and the
Trustee with a duly completed Internal Revenue Service Form W-8ECI or any
applicable successor form.
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of 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.
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11. The Transferee will not cause income with respect to the
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other U.S. Person.
12. Check one of the following paragraphs:
|_| The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to pay
tax at the highest rate currently specified in Section 11(b) of the Code (but
the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
|_| The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as
defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of
the transfer, the Transferee had gross assets for
financial reporting purposes (excluding any
obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million
and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S.
Treasury Regulations Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5); and
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(iv) the Transferee determined the consideration paid to
it to acquire the Certificate based on reasonable
market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions,
tax rates and other factors specific to the
Transferee) that it has determined in good faith.
|_| None of the above.
13. The Transferee is either: (i) not an employee benefit plan
or other retirement arrangement subject to Section 406 of ERISA and/or Section
4975 of the Code, or a person acting for, on behalf of or with the assets of,
any such plan or arrangement or (ii) the Transferee has delivered to the Trustee
an Opinion of Counsel satisfactory to the Trustee to the effect that the
purchase or holding of such Certificate will not result in prohibited
transactions under Section 406 of ERISA and/or Section 4975 of the Code and will
not subject the Trustee the Depositor, the Underlying Trustee, the Underlying
Depositor or the Trust Administrator to any obligation in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense of
such parties or the Trust Fund.
* * *
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]
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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 E
Certain Definitions
"DISQUALIFIED ORGANIZATION": A Person specified in clauses (i)-(iv) of
the definition of "Permitted Transferee."
"OWNERSHIP INTEREST": As to any Residual Certificate, any ownership
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
"PERMITTED TRANSFEREE": Any person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a
citizen or resident of the United States, a corporation, partnership (except as
provided in applicable Treasury Regulations), or other entity created or
organized in or under the laws of the United States or any state thereof or the
District of Columbia, an estate whose income is subject to United States federal
income tax 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
September 20, 1996 which are eligible to elect to be treated as United States
persons) unless such Person has furnished the transferor and the Trustee with a
duly completed Internal Revenue Service Form W-8ECI or any applicable successor
form, (vi) any Person with respect to whom income on any residual certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable treaty, of such Person or any other U.S. Person and
(vii) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Residual Certificate to
such Person may cause a REMIC hereunder to fail to qualify as a REMIC at any
time that the Certificates are outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Section
7701 of the Code or successor provisions. A corporation will not be treated as
an instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of the ▇▇▇▇▇▇▇ 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.
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"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.
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EXHIBIT 2
to EXHIBIT E
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 (other than the Depositor of an
affiliate thereof) in the form attached hereto as Exhibit E and a
certification of the transferor (other than the Depositor or an
affiliate thereof) certifying as to certain facts surrounding the
transfer in substantially the form set forth in Exhibit F.
(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 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
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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.
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 or the
Trustee 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.
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EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE
__________________
Date
Mortgage Asset Securitization Transactions, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ Fargo Bank, N.A., as trustee
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Mortgage Asset Securitization Transactions, Inc., MASTR
Seasoned Securitization Trust 2004-2, Mortgage Pass-Through
Certificates, Series 2004-2, Class A-R
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the
Securities Act of 1933, as amended and (b) to the extent we are disposing of a
Class A-R Certificate, (i) we have no knowledge the transferee is not a
Permitted Transferee, (ii) after conducting a reasonable investigation of the
financial condition of the Transferee, we have no reason to believe that the
transferee will not pay taxes with respect to the Class A-R Certificate when
due, and (iii) we have no reason to believe that the statements made in
paragraphs 7, 10 and 11 of the Transferee's Transfer Affidavit are false.
Very truly yours,
___________________________________
Print Name of Transferor
By:________________________________
Authorized Officer
F-1
EXHIBIT G
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 10-K
MASTR Seasoned Securitization Trust 2004-2 (the "Trust")
Mortgage Pass-Through Certificates
Series 2004-2
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and
all reports on Form 8-K containing distribution date
reports filed in respect of periods included in the
year covered by this annual report, of the Trust;
2. Based on my knowledge, the information in these
reports, taken as a whole, does not contain any
untrue statement of a material fact or omit to state
a material fact necessary to make the statements
made, in light of the circumstances under which such
statements were made, not misleading as of the last
day of the period covered by this annual report;
3. Based on my knowledge, the distribution information
required to be provided by the Trustee under the
Trust Agreement for inclusion in these reports is
included in these reports;
4. I am responsible for reviewing the activities
performed by the Trustee under the Trust Agreement
and based upon my knowledge and the annual compliance
review required under the Trust Agreement, and except
as disclosed in the reports, the Trustee has
fulfilled its obligations under the Trust Agreement;
and
5. The reports disclose all significant deficiencies
relating to the Trustee's compliance with the minimum
servicing standards or similar standards based upon
the report provided by an independent public
accountant, after conducting a review in compliance
with established or stated criteria as set forth in
the professional standards of the American Institute
of Certified Public Accountants as set forth in the
Trust Agreement that is included in these reports.
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
[Master Servicer][and][Depositor]].
Capitalized terms used but not defined herein have the meanings
assigned in the trust agreement dated as of December 1, 2004 (the "Trust
Agreement") between Mortgage Asset Securitization Transactions, Inc., as
depositor and ▇▇▇▇▇ Fargo Bank, N.A., as trustee and as securities intermediary.
G-1
Date: _____________________
___________________________
[Signature]
Name:______________________
Title:_____________________