MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. Depositor BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING Servicer WELLS FARGO BANK, N.A Servicer WELLS FARGO BANK, N.A. Master Servicer, Trust Administrator and Custodian and Trustee POOLING...
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
Depositor
BARCLAYS
CAPITAL REAL ESTATE INC.
d/b/a
HOMEQ SERVICING
Servicer
▇▇▇▇▇
FARGO BANK, N.A
Servicer
▇▇▇▇▇
FARGO BANK, N.A.
Master
Servicer, Trust Administrator and Custodian
and
U.S.
BANK
NATIONAL ASSOCIATION
Trustee
Dated
as
of November 1, 2006
Mortgage
Pass-Through Certificates
Series
2006-HE4
TABLE
OF
CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
|
SECTION
1.01.
|
Defined
Terms.
|
|
SECTION
1.02.
|
Allocation
of Certain Interest Shortfalls.
|
|
SECTION
1.03.
|
Rights
of the NIMS Insurer.
|
|
ARTICLE
II
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
|
SECTION
2.01.
|
Conveyance
of the Mortgage Loans.
|
|
SECTION
2.02.
|
Acceptance
of REMIC I by Trustee.
|
|
SECTION
2.03.
|
Repurchase
or Substitution of Mortgage Loans by an Originator or the
Seller.
|
|
SECTION
2.04.
|
Reserved.
|
|
SECTION
2.05.
|
Representations,
Warranties and Covenants of the Servicer and the Master
Servicer.
|
|
SECTION
2.06.
|
Conveyance
of REMIC Regular Interests and Acceptance of REMIC I, REMIC II, REMIC
III, REMIC IV, REMIC V and REMIC VI by the Trustee; Issuance of
Certificates.
|
|
SECTION
2.07.
|
Issuance
of Class R Certificates and Class R-X Certificates.
|
|
SECTION
2.08.
|
Authorization
to Enter into Interest Rate Cap Agreement and Interest Rate Swap
Agreement.
|
|
ARTICLE
III
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
|
SECTION
3.01.
|
Servicer
to Act as Servicer.
|
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers.
|
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
|
SECTION
3.04.
|
Liability
of the Servicer.
|
|
SECTION
3.05.
|
No
Contractual Relationship Between Sub-Servicers and the Trustee, the
Trust
Administrator, the NIMS Insurer or Certificateholders.
|
|
SECTION
3.06.
|
Assumption
or Termination of Sub-Servicing Agreements by Master
Servicer.
|
|
SECTION
3.07.
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.08.
|
Sub-Servicing
Accounts.
|
|
SECTION
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.10.
|
Collection
Account.
|
|
SECTION
3.11.
|
Withdrawals
from the Collection Account
|
|
SECTION
3.12.
|
Investment
of Funds in the Collection Account.
|
|
SECTION
3.13.
|
[Reserved].
|
|
SECTION
3.14.
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
|
SECTION
3.15.
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.16.
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.17.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.18.
|
Servicing
Compensation.
|
|
SECTION
3.19.
|
Reports
to the Trust Administrator; Collection Account
Statements.
|
|
SECTION
3.20.
|
Statement
as to Compliance.
|
|
SECTION
3.21.
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.22.
|
Access
to Certain Documentation.
|
|
SECTION
3.23.
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.24.
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3.25.
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
|
SECTION
3.26.
|
Advance
Facility
|
|
SECTION
3.27.
|
Solicitations.
|
|
ARTICLE
IIIA
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
|
SECTION
3A.01.
|
Master
Servicer to Act as Master Servicer
|
|
SECTION
3A.02.
|
[Reserved].
|
|
SECTION
3A.03.
|
Monitoring
of Servicer.
|
|
SECTION
3A.04.
|
Fidelity
Bond.
|
|
SECTION
3A.05.
|
Power
to Act; Procedures.
|
|
SECTION
3A.06.
|
Due
on Sale Clauses; Assumption Agreements.
|
|
SECTION
3A.07.
|
[Reserved].
|
|
SECTION
3A.08.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trustee.
|
|
SECTION
3A.09.
|
Compensation
for the Master Servicer.
|
|
SECTION
3A.10.
|
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3A.11.
|
Distribution
Account.
|
|
SECTION
3A.12.
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
|
SECTION
3A.13.
|
Late
Remittance.
|
|
ARTICLE
IV
|
PAYMENTS
TO CERTIFICATEHOLDERS
|
|
SECTION
4.01.
|
Distributions.
|
|
SECTION
4.02.
|
Statements
to Certificateholders.
|
|
SECTION
4.03.
|
Remittance
Reports, Advances.
|
|
SECTION
4.04.
|
Allocation
of Realized Losses.
|
|
SECTION
4.05.
|
Compliance
with Withholding Requirements.
|
|
SECTION
4.06.
|
Exchange
Commission Filings; Additional Information.
|
|
SECTION
4.07.
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
4.08.
|
Swap
Account.
|
|
SECTION
4.09.
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
SECTION
4.10.
|
Cap
Account.
|
|
SECTION
4.11.
|
Collateral
Accounts.
|
|
SECTION
4.12.
|
Rights
and Obligations Under the Interest Rate Cap Agreement and the Interest
Rate Swap Agreement.
|
|
ARTICLE
V
|
THE
CERTIFICATES
|
|
SECTION
5.01.
|
The
Certificates.
|
|
SECTION
5.02.
|
Registration
of Transfer and Exchange of Certificates.
|
|
SECTION
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
5.04.
|
Persons
Deemed Owners.
|
|
SECTION
5.05.
|
Certain
Available Information.
|
|
ARTICLE
VI
|
THE
DEPOSITOR, THE SERVICERS AND THE MASTER SERVICER
|
|
SECTION
6.01.
|
Liability
of the Depositor, the Servicers and the Master
Servicer.
|
|
SECTION
6.02.
|
Merger
or Consolidation of the Depositor, the Servicers or the Master
Servicer.
|
|
SECTION
6.03.
|
Limitation
on Liability of the Depositor, the Servicers, the Master Servicer
and
Others.
|
|
SECTION
6.04.
|
Limitation
on Resignation of a Servicer; Assignment of Master
Servicing.
|
|
SECTION
6.05.
|
Successor
Master Servicer.
|
|
SECTION
6.06.
|
Rights
of the Depositor in Respect of the Servicers.
|
|
SECTION
6.07.
|
[Reserved].
|
|
SECTION
6.08.
|
Duties
of the Credit Risk Manager.
|
|
SECTION
6.09.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
6.10.
|
Removal
of the Credit Risk Manager.
|
|
ARTICLE
VII
|
DEFAULT
|
|
SECTION
7.01.
|
Servicer
Events of Default and Master Servicer Events of
Termination.
|
|
SECTION
7.02.
|
Master
Servicer or Trustee to Act; Appointment of Successor
Servicer.
|
|
SECTION
7.03.
|
Trustee
to Act; Appointment of Successor Master Servicer.
|
|
SECTION
7.04.
|
Notification
to Certificateholders.
|
|
SECTION
7.05.
|
Waiver
of Servicer Events of Default and Master Servicer Events of
Termination.
|
|
SECTION
7.06.
|
Survivability
of Servicer and Master Servicer Liabilities.
|
|
ARTICLE
VIII
|
CONCERNING
THE TRUSTEE AND THE TRUST ADMINISTRATOR
|
|
SECTION
8.01.
|
Duties
of Trustee and Trust Administrator.
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee and the Trust
Administrator
|
|
SECTION
8.03.
|
Neither
Trustee nor Trust Administrator Liable for Certificates or Mortgage
Loans.
|
|
SECTION
8.04.
|
Trustee
and Trust Administrator May Own Certificates.
|
|
SECTION
8.05.
|
Trust
Administrator’s and Trustee’s Fees and Expenses.
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee and Trust Administrator.
|
|
SECTION
8.07.
|
Resignation
and Removal of the Trustee or Trust Administrator.
|
|
SECTION
8.08.
|
Successor
Trustee or Trust Administrator.
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee or Trust Administrator.
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11.
|
Appointment
of Office or Agency; Appointment of Custodian.
|
|
SECTION
8.12.
|
Representations
and Warranties.
|
|
ARTICLE
IX
|
TERMINATION
|
|
SECTION
9.01.
|
Termination
Upon Repurchase or Liquidation of All Mortgage Loans.
|
|
SECTION
9.02.
|
Additional
Termination Requirements.
|
|
ARTICLE
X
|
REMIC
PROVISIONS
|
|
SECTION
10.01.
|
REMIC
Administration.
|
|
SECTION
10.02.
|
Prohibited
Transactions and Activities.
|
|
SECTION
10.03.
|
Servicer,
Master Servicer and Trustee Indemnification.
|
|
ARTICLE
XI
|
MISCELLANEOUS
PROVISIONS
|
|
SECTION
11.01.
|
Amendment.
|
|
SECTION
11.02.
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
11.03.
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
11.04.
|
Governing
Law.
|
|
SECTION
11.05.
|
Notices.
|
|
SECTION
11.06.
|
Severability
of Provisions.
|
|
SECTION
11.07.
|
Notice
to Rating Agencies and the NIMS Insurer.
|
|
SECTION
11.08.
|
Article
and Section References.
|
|
SECTION
11.09.
|
Grant
of Security Interest.
|
|
SECTION
11.10.
|
Third
Party Rights.
|
|
SECTION
11.11.
|
Intention
of the Parties and Interpretation.
|
|
Exhibits
|
|
|
Exhibit
A-1
|
Form
of Class A-1 Certificate
|
|
Exhibit
A-2
|
Form
of Class A-2 Certificate
|
|
Exhibit
A-3
|
Form
of Class A-3 Certificate
|
|
Exhibit
A-4
|
Form
of Class A-4 Certificate
|
|
Exhibit
A-5
|
Form
of Class M-1 Certificate
|
|
Exhibit
A-6
|
Form
of Class M-2 Certificate
|
|
Exhibit
A-7
|
Form
of Class M-3 Certificate
|
|
Exhibit
A-8
|
Form
of Class M-4 Certificate
|
|
Exhibit
A-9
|
Form
of Class M-5 Certificate
|
|
Exhibit
A-10
|
Form
of Class M-6 Certificate
|
|
Exhibit
A-11
|
Form
of Class M-7 Certificate
|
|
Exhibit
A-12
|
Form
of Class M-8 Certificate
|
|
Exhibit
A-13
|
Form
of Class M-9 Certificate
|
|
Exhibit
A-14
|
Form
of Class M-10 Certificate
|
|
Exhibit
A-15
|
Form
of Class M-11 Certificate
|
|
Exhibit
A-16
|
Form
of Class CE Certificate
|
|
Exhibit
A-17
|
Form
of Class P Certificate
|
|
Exhibit
A-18
|
Form
of Class R Certificate
|
|
Exhibit
A-19
|
Form
of Class R-X Certificate
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C-1
|
Form
of Initial Certification
|
|
Exhibit
C-2
|
Form
of Final Certification
|
|
Exhibit
C-3
|
Form
of Receipt of Mortgage Notes
|
|
Exhibit
D
|
Forms
of Assignment Agreements
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Transferor Representation Letter and Form of Transferee
Representation
|
|
Letter
in Connection with Transfer of the Private Certificates Pursuant
to Rule
144A Under the 1933 Act
|
|
|
Exhibit
F-2
|
Form
of Transfer Affidavit and Agreement and Form of Transferor Affidavit
in
Connection with Transfer of Residual Certificates
|
|
Exhibit
G
|
Form
of Certification with respect to ERISA and the Code
|
|
Exhibit
H
|
Form
of Report Pursuant to Section 4.06
|
|
Exhibit
I
|
Form
of Lost Note Affidavit
|
|
Exhibit
J-1
|
Form
of Certification to Be Provided by the Master Servicer with Form
10-K
|
|
Exhibit
J-2
|
Form
of Certification to Be Provided by the Servicer to the Master
Servicer
|
|
Exhibit
K
|
Form
of Interest Rate Cap Agreement
|
|
Exhibit
L
|
Annual
Statement of Compliance pursuant to Section 3.20
|
|
Exhibit
M
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
N
|
Form
of Swap Administration Agreement
|
|
Exhibit
O
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
P
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
Q
|
Additional
Disclosure Notification
|
|
Exhibit
R-1
|
Form
of Delinquency Report
|
|
Exhibit
R-2
|
Form
of Monthly Remittance Advice
|
|
Exhibit
R-3
|
Form
of Realized Loss Report
|
|
Schedule
1
|
Mortgage
Loan Schedule
|
|
Schedule
2
|
Prepayment
Charge Schedule
|
This
Pooling and Servicing Agreement, is dated and effective as of November
1, 2006
among MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. as Depositor,
BARCLAYS
CAPITAL REAL ESTATE INC. d/b/a HOMEQ SERVICING, as a Servicer, ▇▇▇▇▇
FARGO BANK,
N.A., as a Servicer, ▇▇▇▇▇ FARGO BANK, N.A. as Master Servicer, Trust
Administrator and Custodian and U.S. BANK NATIONAL ASSOCIATION as
Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest in each REMIC (as defined herein) created hereunder.
The
Trust Fund will consist of a segregated pool of assets comprised of the
Mortgage
Loans and certain other related assets subject to this Agreement.
REMIC
I
As
provided herein, the Trustee will elect to treat the segregated pool
of assets
consisting of the Mortgage Loans and certain other related assets (other
than
the Net WAC Rate Carryover Reserve Account, the Swap Account, the Supplemental
Interest Trust, the Interest Rate Swap Agreement, the Cap Account, the
Interest
Rate Cap Agreement, any Originator Prepayment Charge Payment Amounts
and any
Servicer Prepayment Charge Payment Amounts) subject to this Agreement
as a REMIC
for federal income tax purposes, and such segregated pool of assets will
be
designated as “REMIC I.” The Class R-I Interest will be the sole class of
“residual interests” in REMIC I for purposes of the REMIC Provisions (as defined
herein). The following table irrevocably sets forth the designation,
the REMIC I
Remittance Rate, the initial Uncertificated Balance and, for purposes
of
satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for each of the REMIC I Regular Interests (as defined herein).
None of the REMIC I Regular Interests will be certificated.
|
Designation
|
REMIC
1
Remittance
Rate(2)
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
|
I
|
Variable
|
$
|
1,692.36
|
November
2036
|
|
I-1-A
|
Variable
|
$
|
3,572,500.00
|
November
2036
|
|
I-1-B
|
Variable
|
$
|
3,572,500.00
|
November
2036
|
|
I-2-A
|
Variable
|
$
|
4,547,000.00
|
November
2036
|
|
I-2-B
|
Variable
|
$
|
4,547,000.00
|
November
2036
|
|
I-3-A
|
Variable
|
$
|
5,519,000.00
|
November
2036
|
|
I-3-B
|
Variable
|
$
|
5,519,000.00
|
November
2036
|
|
I-4-A
|
Variable
|
$
|
6,480,000.00
|
November
2036
|
|
I-4-B
|
Variable
|
$
|
6,480,000.00
|
November
2036
|
|
I-5-A
|
Variable
|
$
|
7,421,500.00
|
November
2036
|
|
I-5-B
|
Variable
|
$
|
7,421,500.00
|
November
2036
|
|
I-6-A
|
Variable
|
$
|
8,332,500.00
|
November
2036
|
|
I-6-B
|
Variable
|
$
|
8,332,500.00
|
November
2036
|
|
I-7-A
|
Variable
|
$
|
9,205,000.00
|
November
2036
|
|
I-7-B
|
Variable
|
$
|
9,205,000.00
|
November
2036
|
|
I-8-A
|
Variable
|
$
|
10,027,000.00
|
November
2036
|
|
I-8-B
|
Variable
|
$
|
10,027,000.00
|
November
2036
|
|
I-9-A
|
Variable
|
$
|
10,788,000.00
|
November
2036
|
|
I-9-B
|
Variable
|
$
|
10,788,000.00
|
November
2036
|
|
I-10-A
|
Variable
|
$
|
10,795,000.00
|
November
2036
|
|
I-10-B
|
Variable
|
$
|
10,795,000.00
|
November
2036
|
|
I-11-A
|
Variable
|
$
|
10,291,500.00
|
November
2036
|
|
I-11-B
|
Variable
|
$
|
10,291,500.00
|
November
2036
|
|
I-12-A
|
Variable
|
$
|
9,811,500.00
|
November
2036
|
|
I-12-B
|
Variable
|
$
|
9,811,500.00
|
November
2036
|
|
I-13-A
|
Variable
|
$
|
9,354,000.00
|
November
2036
|
|
I-13-B
|
Variable
|
$
|
9,354,000.00
|
November
2036
|
|
I-14-A
|
Variable
|
$
|
8,918,500.00
|
November
2036
|
|
I-14-B
|
Variable
|
$
|
8,918,500.00
|
November
2036
|
|
I-15-A
|
Variable
|
$
|
8,503,000.00
|
November
2036
|
|
I-15-B
|
Variable
|
$
|
8,503,000.00
|
November
2036
|
|
I-16-A
|
Variable
|
$
|
8,107,000.00
|
November
2036
|
|
I-16-B
|
Variable
|
$
|
8,107,000.00
|
November
2036
|
|
I-17-A
|
Variable
|
$
|
7,730,000.00
|
November
2036
|
|
I-17-B
|
Variable
|
$
|
7,730,000.00
|
November
2036
|
|
I-18-A
|
Variable
|
$
|
7,370,500.00
|
November
2036
|
|
I-18-B
|
Variable
|
$
|
7,370,500.00
|
November
2036
|
|
I-19-A
|
Variable
|
$
|
7,028,500.00
|
November
2036
|
|
I-19-B
|
Variable
|
$
|
7,028,500.00
|
November
2036
|
|
I-20-A
|
Variable
|
$
|
8,989,500.00
|
November
2036
|
|
I-20-B
|
Variable
|
$
|
8,989,500.00
|
November
2036
|
|
I-21-A
|
Variable
|
$
|
10,490,000.00
|
November
2036
|
|
I-21-B
|
Variable
|
$
|
10,490,000.00
|
November
2036
|
|
I-22-A
|
Variable
|
$
|
9,528,000.00
|
November
2036
|
|
I-22-B
|
Variable
|
$
|
9,528,000.00
|
November
2036
|
|
I-23-A
|
Variable
|
$
|
8,663,000.00
|
November
2036
|
|
I-23-B
|
Variable
|
$
|
8,663,000.00
|
November
2036
|
|
I-24-A
|
Variable
|
$
|
7,890,500.00
|
November
2036
|
|
I-24-B
|
Variable
|
$
|
7,890,500.00
|
November
2036
|
|
I-25-A
|
Variable
|
$
|
6,157,000.00
|
November
2036
|
|
I-25-B
|
Variable
|
$
|
6,157,000.00
|
November
2036
|
|
I-26-A
|
Variable
|
$
|
4,719,500.00
|
November
2036
|
|
I-26-B
|
Variable
|
$
|
4,719,500.00
|
November
2036
|
|
I-27-A
|
Variable
|
$
|
4,475,000.00
|
November
2036
|
|
I-27-B
|
Variable
|
$
|
4,475,000.00
|
November
2036
|
|
I-28-A
|
Variable
|
$
|
4,242,500.00
|
November
2036
|
|
I-28-B
|
Variable
|
$
|
4,242,500.00
|
November
2036
|
|
I-29-A
|
Variable
|
$
|
4,022,000.00
|
November
2036
|
|
I-29-B
|
Variable
|
$
|
4,022,000.00
|
November
2036
|
|
I-30-A
|
Variable
|
$
|
3,815,000.00
|
November
2036
|
|
I-30-B
|
Variable
|
$
|
3,815,000.00
|
November
2036
|
|
I-31-A
|
Variable
|
$
|
3,628,500.00
|
November
2036
|
|
I-31-B
|
Variable
|
$
|
3,628,500.00
|
November
2036
|
|
I-32-A
|
Variable
|
$
|
4,103,000.00
|
November
2036
|
|
I-32-B
|
Variable
|
$
|
4,103,000.00
|
November
2036
|
|
I-33-A
|
Variable
|
$
|
4,336,500.00
|
November
2036
|
|
I-33-B
|
Variable
|
$
|
4,336,500.00
|
November
2036
|
|
I-34-A
|
Variable
|
$
|
3,992,000.00
|
November
2036
|
|
I-34-B
|
Variable
|
$
|
3,992,000.00
|
November
2036
|
|
I-35-A
|
Variable
|
$
|
3,681,000.00
|
November
2036
|
|
I-35-B
|
Variable
|
$
|
3,681,000.00
|
November
2036
|
|
I-36-A
|
Variable
|
$
|
3,394,000.00
|
November
2036
|
|
I-36-B
|
Variable
|
$
|
3,394,000.00
|
November
2036
|
|
I-37-A
|
Variable
|
$
|
2,837,500.00
|
November
2036
|
|
I-37-B
|
Variable
|
$
|
2,837,500.00
|
November
2036
|
|
I-38-A
|
Variable
|
$
|
2,420,000.00
|
November
2036
|
|
I-38-B
|
Variable
|
$
|
2,420,000.00
|
November
2036
|
|
I-39-A
|
Variable
|
$
|
2,289,500.00
|
November
2036
|
|
I-39-B
|
Variable
|
$
|
2,289,500.00
|
November
2036
|
|
I-40-A
|
Variable
|
$
|
2,167,000.00
|
November
2036
|
|
I-40-B
|
Variable
|
$
|
2,167,000.00
|
November
2036
|
|
I-41-A
|
Variable
|
$
|
2,050,500.00
|
November
2036
|
|
I-41-B
|
Variable
|
$
|
2,050,500.00
|
November
2036
|
|
I-42-A
|
Variable
|
$
|
1,941,000.00
|
November
2036
|
|
I-42-B
|
Variable
|
$
|
1,941,000.00
|
November
2036
|
|
I-43-A
|
Variable
|
$
|
1,838,000.00
|
November
2036
|
|
I-43-B
|
Variable
|
$
|
1,838,000.00
|
November
2036
|
|
I-44-A
|
Variable
|
$
|
1,741,000.00
|
November
2036
|
|
I-44-B
|
Variable
|
$
|
1,741,000.00
|
November
2036
|
|
I-45-A
|
Variable
|
$
|
1,648,000.00
|
November
2036
|
|
I-45-B
|
Variable
|
$
|
1,648,000.00
|
November
2036
|
|
I-46-A
|
Variable
|
$
|
1,561,500.00
|
November
2036
|
|
I-46-B
|
Variable
|
$
|
1,561,500.00
|
November
2036
|
|
I-47-A
|
Variable
|
$
|
1,479,000.00
|
November
2036
|
|
I-47-B
|
Variable
|
$
|
1,479,000.00
|
November
2036
|
|
I-48-A
|
Variable
|
$
|
1,401,500.00
|
November
2036
|
|
I-48-B
|
Variable
|
$
|
1,401,500.00
|
November
2036
|
|
I-49-A
|
Variable
|
$
|
1,328,000.00
|
November
2036
|
|
I-49-B
|
Variable
|
$
|
1,328,000.00
|
November
2036
|
|
I-50-A
|
Variable
|
$
|
1,258,500.00
|
November
2036
|
|
I-50-B
|
Variable
|
$
|
1,258,500.00
|
November
2036
|
|
I-51-A
|
Variable
|
$
|
1,193,000.00
|
November
2036
|
|
I-51-B
|
Variable
|
$
|
1,193,000.00
|
November
2036
|
|
I-52-A
|
Variable
|
$
|
1,131,500.00
|
November
2036
|
|
I-52-B
|
Variable
|
$
|
1,131,500.00
|
November
2036
|
|
I-53-A
|
Variable
|
$
|
1,072,500.00
|
November
2036
|
|
I-53-B
|
Variable
|
$
|
1,072,500.00
|
November
2036
|
|
I-54-A
|
Variable
|
$
|
1,017,000.00
|
November
2036
|
|
I-54-B
|
Variable
|
$
|
1,017,000.00
|
November
2036
|
|
I-55-A
|
Variable
|
$
|
964,500.00
|
November
2036
|
|
I-55-B
|
Variable
|
$
|
964,500.00
|
November
2036
|
|
I-56-A
|
Variable
|
$
|
915,500.00
|
November
2036
|
|
I-56-B
|
Variable
|
$
|
915,500.00
|
November
2036
|
|
I-57-A
|
Variable
|
$
|
868,500.00
|
November
2036
|
|
I-57-B
|
Variable
|
$
|
868,500.00
|
November
2036
|
|
I-58-A
|
Variable
|
$
|
824,500.00
|
November
2036
|
|
I-58-B
|
Variable
|
$
|
824,500.00
|
November
2036
|
|
I-59-A
|
Variable
|
$
|
783,500.00
|
November
2036
|
|
I-59-B
|
Variable
|
$
|
783,500.00
|
November
2036
|
|
I-60-A
|
Variable
|
$
|
15,658,500.00
|
November
2036
|
|
I-60-B
|
Variable
|
$
|
15,658,500.00
|
November
2036
|
|
P
|
Variable
|
$
|
100.00
|
November
2036
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for
the Mortgage
Loan with the latest maturity date has been designated as the
“latest
possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
REMIC
II
As
provided herein, the Trustee will elect to treat the segregated pool
of assets
consisting of the REMIC I Regular Interests as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC II.”
The Class R-II Interest will evidence the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions under federal income tax
law. The
following table irrevocably sets forth the designation, the REMIC II
Remittance
Rate, the initial Uncertificated Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each of the REMIC II Regular Interests (as defined herein). None
of
the REMIC II Regular Interests will be certificated.
|
Designation
|
REMIC
II
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
|
II-LTAA
|
Variable(2)
|
$
|
588,626,898.51
|
November
2036
|
|
II-LTA1
|
Variable(2)
|
$
|
2,477,000.00
|
November
2036
|
|
II-LTA2
|
Variable(2)
|
$
|
640,000.00
|
November
2036
|
|
II-LTA3
|
Variable(2)
|
$
|
1,155,000.00
|
November
2036
|
|
II-LTA4
|
Variable(2)
|
$
|
488,070.00
|
November
2036
|
|
II-LTM1
|
Variable(2)
|
$
|
219,230.00
|
November
2036
|
|
II-LTM2
|
Variable(2)
|
$
|
207,220.00
|
November
2036
|
|
II-LTM3
|
Variable(2)
|
$
|
117,120.00
|
November
2036
|
|
II-LTM4
|
Variable(2)
|
$
|
108,110.00
|
November
2036
|
|
II-LTM5
|
Variable(2)
|
$
|
99,100.00
|
November
2036
|
|
II-LTM6
|
Variable(2)
|
$
|
93,090.00
|
November
2036
|
|
II-LTM7
|
Variable(2)
|
$
|
87,090.00
|
November
2036
|
|
II-LTM8
|
Variable(2)
|
$
|
78,080.00
|
November
2036
|
|
II-LTM9
|
Variable(2)
|
$
|
45,040.00
|
November
2036
|
|
II-LTM10
|
Variable(2)
|
$
|
45,040.00
|
November
2036
|
|
II-LTM11
|
Variable(2)
|
$
|
60,060.00
|
November
2036
|
|
II-LTZZ
|
Variable(2)
|
$
|
6,093,543.85
|
November
2036
|
|
II-LTP
|
Variable(2)
|
$
|
100.00
|
November
2036
|
|
II-LTIO
|
Variable(2)
|
N/A(3)
|
November
2036
|
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the
Distribution Date immediately following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each REMIC II Regular Interest.
(2) Calculated
in accordance with the definition of “REMIC II Remittance Rate”
herein.
(3) REMIC
II
Regular Interest II-LTIO will not have an Uncertificated Balance, but
will
accrue interest on its Uncertificated Notional Amount.
REMIC
III
As
provided herein, the Trustee will elect to treat the segregated pool
of assets
consisting of the REMIC II Regular Interests as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC III.”
The Class R-III Interest will evidence the sole class of “residual interests” in
REMIC III for purposes of the REMIC Provisions under federal income tax
law. The
following table irrevocably sets forth the designation, the Pass-Through
Rate,
the initial aggregate Certificate Principal Balance and, for purposes
of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for the indicated Classes of Certificates.
Each
Certificate, other than the Class P Certificate, the Class CE Certificate,
the
Class R Certificates and the Class R-X Certificates, represents ownership
of a
Regular Interest in REMIC III and also represents (i) the right to receive
payments with respect to the Net WAC Rate Carryover Amount (as defined
herein)
and (ii) the obligation to pay Class IO Distribution Amounts (as defined
herein). The entitlement to principal of the Regular Interest which corresponds
to each Certificate shall be equal in amount and timing to the entitlement
to
principal of such Certificate.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
|
Class
A-1
|
Variable(2)
|
$
|
247,700,000.00
|
November
2036
|
|
Class
A-2
|
Variable(2)
|
$
|
64,000,000.00
|
November
2036
|
|
Class
A-3
|
Variable(2)
|
$
|
115,500,000.00
|
November
2036
|
|
Class
A-4
|
Variable(2)
|
$
|
48,807,000.00
|
November
2036
|
|
Class
M-1
|
Variable(2)
|
$
|
21,923,000.00
|
November
2036
|
|
Class
M-2
|
Variable(2)
|
$
|
20,722,000.00
|
November
2036
|
|
Class
M-3
|
Variable(2)
|
$
|
11,712,000.00
|
November
2036
|
|
Class
M-4
|
Variable(2)
|
$
|
10,811,000.00
|
November
2036
|
|
Class
M-5
|
Variable(2)
|
$
|
9,910,000.00
|
November
2036
|
|
Class
M-6
|
Variable(2)
|
$
|
9,309,000.00
|
November
2036
|
|
Class
M-7
|
Variable(2)
|
$
|
8,709,000.00
|
November
2036
|
|
Class
M-8
|
Variable(2)
|
$
|
7,808,000.00
|
November
2036
|
|
Class
M-9
|
Variable(2)
|
$
|
4,504,000.00
|
November
2036
|
|
Class
M-10
|
Variable(2)
|
$
|
4,504,000.00
|
November
2036
|
|
Class
M-11
|
Variable(2)
|
$
|
6,006,000.00
|
November
2036
|
|
Class
CE Interest
|
Variable(3)
|
$
|
8,714,692.36
|
November
2036
|
|
Class
P Interest
|
N/A(4)
|
$
|
100.00
|
November
2036
|
|
Class
Swap-IO Interest
|
N/A(5)
|
N/A
|
November
2036
|
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the
Distribution Date immediately following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each REMIC III Regular Interest.
(2) Calculated
in accordance with the definition of “Pass-Through Rate” herein.
(3) The
Class
CE Interest will accrue interest at its variable Pass-Through Rate on
the
Notional Amount of the Class CE Interest outstanding from time to time,
which
shall equal the Uncertificated Balance of the REMIC II Regular Interests
(other
than REMIC II Regular Interest II-LTP). The Class CE Interest will not
accrue
interest on its Uncertificated Balance.
(4) The
Class
P Interest will not accrue interest.
(5) The
Class
Swap-IO Interest will not have a Pass-Through Rate or a Certificate Principal
Balance, but will be entitled to 100% of the amounts distributed on REMIC
II
Regular Interest II-LTIO.
REMIC
IV
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class CE Interest as a REMIC for federal
income tax
purposes, and such segregated pool of assets will be designated as “REMIC IV.”
The Class R-IV Interest represents the sole class of “residual interests” in
REMIC IV for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Original Class Certificate Principal Balance for the indicated Class
of
Certificates that represents a “regular interest” in REMIC IV created
hereunder:
|
Class
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
Class
CE Certificates
|
Variable(2)
|
$8,714,692.36
|
November
2036
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the
Distribution Date immediately following the maturity date for the Mortgage
Loans
with the latest maturity date has been designated as the “latest possible
maturity date” for the Class CE Certificates.
(2) The
Class
CE Certificates will receive 100% of amounts received in respect of the
Class CE
Interest.
REMIC
V
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class P Interest as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC V.”
The Class R-V Interest represents the sole class of “residual interests” in
REMIC V for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Original Class Certificate Principal Balance for the indicated Class
of
Certificates that represents a “regular interest” in REMIC V created
hereunder:
|
Class
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
Class
P Certificates
|
Variable(2)
|
$100.00
|
November
2036
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the
Distribution Date immediately following the maturity date for the Mortgage
Loans
with the latest maturity date has been designated as the “latest possible
maturity date” for the Class P Certificates.
(2) The
Class
P Certificates will receive 100% of amounts received in respect of the
Class P
Interest.
REMIC
VI
As
provided herein, the Trustee shall make an election to treat the segregated
pool
of assets consisting of the Class SWAP-IO Interest as a REMIC for federal
income
tax purposes, and such segregated pool of assets shall be designated
as “REMIC
VI.” The Class R-VI Interest represents the sole class of “residual interests”
in REMIC VI for purposes of the REMIC Provisions. The following table
irrevocably sets forth the designation, the Pass-Through Rate, the initial
aggregate Certificate Principal Balance and, for purposes of satisfying
Treasury
regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
the indicated REMIC VI Regular Interest SWAP-IO, which will be
uncertificated.
|
Designation
|
Pass-Through
Rate
|
|
Initial
Aggregate
Certificate
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|||
|
SWAP-IO
|
Variable(2)
|
N/A
|
November
2036
|
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury Regulations,
the
Distribution Date immediately following the maturity date for
the Mortgage
Loans with the latest maturity date has been designated as
the “latest
possible maturity date” for REMIC IV Regular Interest
Swap-IO.
|
|
(2)
|
REMIC
IV Regular Interest Swap-IO will receive 100% of amounts received
in
respect of the Class SWAP-IO Interest.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Stated Principal Balance
equal
to $600,639,792.36.
In
consideration of the mutual agreements herein contained, the Depositor,
the
Servicer, the Master Servicer, the Trust Administrator and the Trustee
agree as
follows:
ARTICLE
I
DEFINITIONS
| SECTION 1.01. |
Defined
Terms.
|
Whenever
used in this Agreement, including, without limitation, in the Preliminary
Statement hereto, the following words and phrases, unless the context
otherwise
requires, shall have the meanings specified in this Article. Unless otherwise
specified, all calculations described herein shall be made on the basis
of a
360-day year consisting of twelve 30-day months.
“10-K
Filing Deadline”: The meaning set forth in Section 4.06(a)(iv).
“Accepted
Master Servicing Practices”: With respect to any Mortgage Loan, as applicable,
either (x) those customary mortgage loan master servicing practices of
prudent
mortgage servicing institutions that master service mortgage loans of
the same
type and quality as such Mortgage Loan in the jurisdiction where the
related
Mortgaged Property is located, to the extent applicable to the Master
Servicer
(except in its capacity as successor to either Servicer), or (y) as provided
in
Section 3A.01 hereof, but in no event below the standard set forth in
clause (x).
“Accrual
Period”: With respect to the Class A Certificates and the Mezzanine Certificates
and each Distribution Date, the period commencing on the preceding Distribution
Date (or in the case of the first such Accrual Period, commencing on
the Closing
Date) and ending on the day preceding the current Distribution Date.
With
respect to the Class CE Certificates and the REMIC Regular Interests
and each
Distribution Date, the calendar month prior to the month of such Distribution
Date.
“Additional
Disclosure”: The meaning set forth in Section 4.06(a)(v).
“Additional
Form 10-D Disclosure”: The meaning set forth in Section 4.06(a)(i).
“Additional
Form 10-K Disclosure”: The meaning set forth in Section
4.06(a)(iv).
“Adjustable-Rate
Mortgage Loan”: Each of the Mortgage Loans identified on the Mortgage Loan
Schedule as having a Mortgage Rate that is subject to adjustment.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the applicable Maximum Mortgage Rate for such Mortgage Loan
(or the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the
first day
of the month preceding the month in which the related Distribution Date
occurs
minus
the sum of (i) the Master Servicer Fee Rate, (ii) the Servicing Fee Rate
and
(iii) the Credit Risk Manager Fee Rate.
“Adjusted
Net Mortgage Rate”: With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest
equal
to the applicable Mortgage Rate for such Mortgage Loan as of the first
day of
the month preceding the month in which the related Distribution Date
occurs
minus
the sum of (i) the Master Servicer Fee Rate, (ii) the Servicing Fee Rate
and
(iii) the Credit Risk Manager Fee Rate.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, the first day of
the
month in which the Mortgage Rate of such Mortgage Loan changes pursuant
to the
related Mortgage Note. The first Adjustment Date following the Cut-off
Date as
to each Adjustable-Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
“Advance”:
With respect to any Distribution Date, as to any Mortgage Loan or REO
Property,
any advance made by a Servicer in respect of Monthly Payments due during
the
related Due Period pursuant to Section 4.03 or by the Master Servicer
(in its
capacity as successor Servicer) or any other successor Servicer pursuant
to
Section 4.03.
“Advance
Facility”: As defined in Section 3.26 hereof.
“Advancing
Person”: As defined in Section 3.26 hereof.
“Affiliate”:
With respect to any specified Person, any other Person controlling or
controlled
by or under common control with such specified Person. For the purposes
of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly
or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise, and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Aggregate
Loss Severity Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount
of
Realized Losses incurred on any Mortgage Loans from the Cut-off Date
to the last
day of the preceding calendar month and the denominator of which is the
aggregate Stated Principal Balance of such Mortgage Loans immediately
prior to
the liquidation of such Mortgage Loans.
“Agreement”:
This Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”: With respect to any Distribution Date and any Class of
Mezzanine Certificates, (i) the sum of (a) any Realized Losses allocated
to such
Class of Certificates on such Distribution Date and (b) the amount of
any
Allocated Realized Loss Amount for such Class of Certificates remaining
undistributed from the previous Distribution Date reduced by (ii) the
amount of
any Subsequent Recoveries added to the Certificate Principal Balance
of such
Class of Certificates.
“Assessment
of Compliance”: As defined in Section 3.21.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument,
in
recordable form (excepting therefrom, if applicable, the mortgage recordation
information which has not been required pursuant to Section 2.01 hereof or
returned by the applicable recorder’s office), which is sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located
to
reflect of record the sale of the Mortgage, which assignment, notice
of transfer
or equivalent instrument may be in the form of one or more blanket assignments
covering Mortgages secured by Mortgaged Properties located in the same
county,
if permitted by law.
“Assignment
Agreement”: Each Assignment and Recognition Agreement, dated November 30, 2006,
among the Depositor, the Seller and the related Originator, forms of
which are
attached hereto as Exhibit D, pursuant to which the Seller assigns its
rights
under the related Originator Master Agreement to the Depositor.
“Attestation
Report”: As defined in Section 3.21.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess
of
(i) the sum of (a) the aggregate of the related Monthly Payments received
on the
Mortgage Loans by each Servicer on or prior to the related Determination
Date,
(b) Net Liquidation Proceeds, Insurance Proceeds, Principal Prepayments,
Subsequent Recoveries, proceeds from repurchases of and substitutions
for such
Mortgage Loans and other unscheduled recoveries of principal and interest
in
respect of the Mortgage Loans received by each Servicer during the related
Prepayment Period, (c) the aggregate of any amounts received by each
Servicer in
respect of a related REO Property and withdrawn from any REO Account
and
remitted to the Master Servicer for such Distribution Date, (d) the aggregate
of
any amounts on deposit in the Distribution Account representing Compensating
Interest paid by each Servicer or the Master Servicer in respect of related
Prepayment Interest Shortfalls for such Distribution Date, (e) the aggregate
of
any Advances made by each Servicer for such Distribution Date in respect
of the
Mortgage Loans and (f) the aggregate of any related Advances made by
the Master
Servicer (in its capacity as successor servicer) or other successor servicer
in
respect of the Mortgage Loans for such Distribution Date pursuant to
Section 4.03 over (ii) the sum of (a) amounts reimbursable or payable to
each Servicer pursuant to Section 3.11(a) or to the Master Servicer pursuant
to
Section 3A.21, (b) Extraordinary Trust Fund Expenses reimbursable to the
Trustee, the Servicers, the Master Servicer or the Trust Administrator
pursuant
to Section 3A.12, (c) amounts in respect of the items set forth in clauses
(i)(a) through (i)(f) above deposited in the Collection Account or the
Distribution Account, as the case may be, in error, (d) the amount of
any
Prepayment Charges collected by each Servicer in connection with the
full or
partial prepayment of any of the Mortgage Loans, any Originator Prepayment
Charge Payment Amount and any Servicer Prepayment Charge Payment Amount,
(e) any
indemnification and reimbursement amounts owed to the Trust Administrator,
the
Trustee or the Custodian payable from the Distribution Account pursuant
to
Section 8.05, (f) the Credit Risk Manager Fee, (g) without duplication, any
amounts in respect of the items set forth in clauses (i)(a) and (i)(b)
permitted
hereunder to be retained by the Master Servicer or to be withdrawn by
the Master
Servicer from the Distribution Account pursuant to Section 3A.12, (h)
Servicing Fees retained by each Servicer pursuant to Section 3.11 and
(i) any
Net Swap Payment or Swap Termination Payment owed to the Swap Provider
(other
than any Swap Termination Payment owed to the Swap Provider resulting
from a
Swap Provider Trigger Event). Notwithstanding any of the foregoing, with
respect
to any items that are part of the Available Funds as defined above and
that are
required to be remitted by each Servicer to the Master Servicer, the
Available
Funds shall not be deemed to include any portion of such items that are
not
actually remitted by each Servicer to the Master Servicer.
“Back-Up
Certification”: The meaning set forth in Section 4.06(a)(iv).
“Balloon
Mortgage Loan”: A Mortgage Loan that provides for the payment of the unamortized
principal balance of such Mortgage Loan in a single payment at the maturity
of
such Mortgage Loan that is substantially greater than the preceding monthly
payment.
“Balloon
Payment”: A payment of the unamortized principal balance of a Mortgage Loan in
a
single payment at the maturity of such Mortgage Loan that is substantially
greater than the preceding Monthly Payment.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Basic
Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Principal Remittance Amount for such Distribution Date
over
(ii) the Overcollateralization Release Amount, if any, for such Distribution
Date.
“Book-Entry
Certificate”: The Class A Certificates and the Mezzanine Certificates for so
long as the Certificates of such Class shall be registered in the name
of the
Depository or its nominee.
“Book-Entry
Custodian”: The custodian appointed pursuant to Section 5.01.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings and loan institutions in the State of New Jersey, the State of
California, the State of New York, or in any city in which the Corporate
Trust
Office of the Trustee or the Corporate Trust Office of the Trust Administrator
are located, are authorized or obligated by law or executive order to
be
closed.
“Cap
Account”: The account or accounts created and maintained pursuant to Section
4.10. The Cap Account must be an Eligible Account.
“Certification
Parties”: The meaning set forth in Section 4.06(a)(iv).
“Certificate”:
Any one of the Mortgage Pass-Through Certificates, Series 2006-HE4, Class
A-1,
Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-4, Class M-1, Class M-2, Class M-3, Class
M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10, Class
M-11,
Class CE, Class P, Class R or Class R-X, issued under this
Agreement.
“Certificate
Factor”: With respect to any Class of Regular Certificates as of any
Distribution Date, a fraction, expressed as a decimal carried to at least
six
places, the numerator of which is the aggregate Certificate Principal
Balance
(or the Notional Amount, in the case of the Class CE Certificates) of
such Class
of Certificates on such Distribution Date (after giving effect to any
distributions of principal and allocations of Realized Losses in reduction
of
the Certificate Principal Balance (or the Notional Amount, in the case
of the
Class CE Certificates) of such Class of Certificates to be made on such
Distribution Date), and the denominator of which is the initial aggregate
Certificate Principal Balance (or the Notional Amount, in the case of
the Class
CE Certificates) of such Class of Certificates as of the Closing
Date.
“Certificate
Margin”: With respect to each Class A Certificate and Mezzanine Certificate
and,
for purposes of the Marker Rate, the specified REMIC II Regular Interest,
as
follows:
|
Class
|
REMIC
II Regular Interest
|
Certificate
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
A-1
|
II-LTA1
|
0.050
|
0.100
|
|
▇-▇
|
▇▇-▇▇▇▇
|
▇.▇▇▇
|
▇.▇▇▇
|
|
▇-▇
|
▇▇-▇▇▇▇
|
0.150
|
0.300
|
|
▇-▇
|
▇▇-▇▇▇▇
|
0.210
|
0.420
|
|
M-1
|
II-LTM1
|
0.220
|
0.330
|
|
M-2
|
II-LTM2
|
0.280
|
0.420
|
|
M-3
|
II-LTM3
|
0.320
|
0.480
|
|
M-4
|
II-LTM4
|
0.370
|
0.555
|
|
M-5
|
II-LTM5
|
0.400
|
0.600
|
|
M-6
|
II-LTM6
|
0.470
|
0.705
|
|
M-7
|
II-LTM7
|
0.880
|
1.320
|
|
M-8
|
II-LTM8
|
1.500
|
2.250
|
|
M-9
|
II-LTM9
|
2.500
|
3.750
|
|
M-10
|
II-LTM10
|
2.500
|
3.750
|
|
M-11
|
II-LTM11
|
2.500
|
3.750
|
__________
|
(1)
|
For
the Interest Accrual Period for each Distribution Date on or
prior to the
Optional Termination Date.
|
|
(2)
|
For
the Interest Accrual Period for each Distribution Date after
the Optional
Termination Date.
|
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that a Disqualified Organization or a Non-United
States Person shall not be a Holder of a Residual Certificate for any
purposes
hereof and, solely for the purposes of giving any consent pursuant to
this
Agreement, any Certificate registered in the name of the Depositor, a
Servicer
or the Master Servicer or any Affiliate thereof shall be deemed not to
be
outstanding and the Voting Rights to which it is entitled shall not be
taken
into account in determining whether the requisite percentage of Voting
Rights
necessary to effect any such consent has been obtained, except as otherwise
provided in Section 11.01. The Trust Administrator, the Trustee and the
NIMS
Insurer may conclusively rely upon a certificate of the Depositor, a
Servicer or
the Master Servicer in determining whether a Certificate is held by an
Affiliate
thereof. All references herein to “Holders” or “Certificateholders” shall
reflect the rights of Certificate Owners as they may indirectly exercise
such
rights through the Depository and participating members thereof, except
as
otherwise specified herein; provided, however, that the Trust Administrator,
the
Trustee and the NIMS Insurer shall be required to recognize as a “Holder” or
“Certificateholder” only the Person in whose name a Certificate is registered in
the Certificate Register.
“Certificate
Owner”: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Certificate as reflected on the books of the
Depository
or on the books of a Depository Participant or on the books of an indirect
participating brokerage firm for which a Depository Participant acts
as
agent.
“Certificate
Principal Balance”: With respect to each Class A Certificate, Mezzanine
Certificate or Class P Certificate as of any date of determination, the
Certificate Principal Balance of such Certificate on the Distribution
Date
immediately prior to such date of determination plus any Subsequent Recoveries
added to the Certificate Principal Balance of such Certificate pursuant
to
Section 4.01, minus all distributions allocable to principal made thereon
and Realized Losses allocated thereto on such immediately prior Distribution
Date (or, in the case of any date of determination up to and including
the first
Distribution Date, the initial Certificate Principal Balance of such
Certificate, as stated on the face thereof). With respect to each Class
CE
Certificate as of any date of determination, an amount equal to the Percentage
Interest evidenced by such Certificate times the excess, if any, of (A)
the then
aggregate Uncertificated Balance of the REMIC II Regular Interests over
(B) the
then aggregate Certificate Principal Balance of the Class A Certificates,
the
Mezzanine Certificates and the Class P Certificates then
outstanding.
“Certificate
Register”: The register maintained pursuant to Section 5.02.
“Certifying
Person”: The meaning set forth in Section 4.06(a)(iv).
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“Class
A
Certificates”: Any of the Class A-1 Certificates, Class A-2 Certificates, Class
A-3 Certificates or Class A-4 Certificates.
“Class
A-1 Certificate”: Any one of the Class A-1 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-1 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
A-2 Certificate”: Any one of the Class A-2 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-2 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
A-3 Certificate”: Any one of the Class A-3 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-3 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
A-4 Certificate”: Any one of the Class A-4 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-4 and evidencing (i) a Regular Interest in REMIC III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
CE
Certificate”: Any one of the Class CE Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed
hereto
as Exhibit A-16 and evidencing (i) a Regular Interest in REMIC IV, (ii)
the
obligation to pay Net WAC Rate Carryover Amounts and Swap Termination
Payments
and (iii) the right to receive the Class IO Distribution Amount.
“Class
CE
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class CE Certificates, evidencing a Regular
Interest in REMIC III for purposes of the REMIC Provisions.
“Class
IO
Distribution Amount”: As defined in Section 4.08 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall
equal
the amount payable to the Trust Administrator on such Distribution Date
in
excess of the amount payable on the Class SWAP-IO Interest on such Distribution
Date, all as further provided in Section 4.08 hereof.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-5 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-6 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-7 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-8 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-4 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of the
Class A Certificates (after taking into account the distribution of the
Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates
(after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date) and (iii) the Certificate
Principal Balance of the Class M-4 Certificates immediately prior to
such
Distribution Date over (y) the lesser of (A) the product of (i) 80.20%
and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related
Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period,
to the
extent received or advanced, and unscheduled collections of principal
received
during the related Prepayment Period) over $3,003,198.96.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-9 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-5 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of the
Class A Certificates (after taking into account the distribution of the
Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates
(after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate
Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (iv) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A)
the
product of (i) 83.50% and (ii) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period,
to the
extent received or advanced, and unscheduled collections of principal
received
during the related Prepayment Period) and (B) the excess of the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
over
$3,003,198.96.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-10 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-6 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of the
Class A Certificates (after taking into account the distribution of the
Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates
(after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate
Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (v) the Certificate
Principal
Balance of the Class M-6 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 86.60% and (ii) the
aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of
the related
Due Period (after giving effect to scheduled payments of principal due
during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
and (B)
the excess of the aggregate Stated Principal Balance of the Mortgage
Loans as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent
received
or advanced, and unscheduled collections of principal received during
the
related Prepayment Period) over $3,003,198.96.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-11 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-7 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of the
Class A Certificates (after taking into account the distribution of the
Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates
(after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate
Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (vi) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A)
the
product of (i) 89.50% and (ii) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period,
to the
extent received or advanced, and unscheduled collections of principal
received
during the related Prepayment Period) and (B) the excess of the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
over
$3,003,198.96.
“Class
M-8 Certificate”: Any one of the Class M-8 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-12 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-8 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of the
Class A Certificates (after taking into account the distribution of the
Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates
(after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate
Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and (vii) the Certificate
Principal Balance of the Class M-8 Certificates immediately prior to
such
Distribution Date over (y) the lesser of (A) the product of (i) 92.10%
and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related
Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period,
to the
extent received or advanced, and unscheduled collections of principal
received
during the related Prepayment Period) over $3,003,198.96.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed, authenticated
and delivered by the Trust Administrator, substantially in the form annexed
hereto as Exhibit A-13 and evidencing (i) a Regular Interest in REMIC
III, (ii)
the right to receive the Net WAC Rate Carryover Amount and (iii) the
obligation
to pay the Class IO Distribution Amount.
“Class
M-9 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of the
Class A Certificates (after taking into account the distribution of the
Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates
(after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate
Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate
Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date) and (viii) the Certificate Principal Balance of the Class M-9 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A)
the
product of (i) 93.60% and (ii) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period,
to the
extent received or advanced, and unscheduled collections of principal
received
during the related Prepayment Period) and (B) the excess of the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
over
$3,003,198.96.
“Class
M-10 Certificate”: Any one of the Class M-10 Certificates executed,
authenticated and delivered by the Trust Administrator, substantially
in the
form annexed hereto as Exhibit A-14 and evidencing (i) a Regular Interest
in
REMIC III, (ii) the right to receive the Net WAC Rate Carryover Amount
and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-10 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of the
Class A Certificates (after taking into account the distribution of the
Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates
(after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate
Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate
Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date) and (ix) the Certificate
Principal Balance of the Class M-10 Certificates immediately prior to
such
Distribution Date over (y) the lesser of (A) the product of (i) 95.10%
and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related
Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period,
to the
extent received or advanced, and unscheduled collections of principal
received
during the related Prepayment Period) over $3,003,198.96.
“Class
M-11 Certificate”: Any one of the Class M-11 Certificates executed,
authenticated and delivered by the Trust Administrator, substantially
in the
form annexed hereto as Exhibit A-15 and evidencing (i) a Regular Interest
in
REMIC III, (ii) the right to receive the Net WAC Rate Carryover Amount
and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-11 Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (x) the sum of (i) the aggregate Certificate Principal Balance
of the
Class A Certificates (after taking into account the distribution of the
Senior
Principal Distribution Amount on such Distribution Date), (ii) the aggregate
Certificate Principal Balance of the Sequential Class M Certificates
(after
taking into account the distribution of the Sequential Class M Principal
Distribution Amount on such Distribution Date), (iii) the Certificate
Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate
Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate
Principal
Balance of the Class M-10 Certificates (after taking into account the
distribution of the Class M-10 Principal Distribution Amount on such
Distribution Date) and (x) the Certificate Principal Balance of the Class
M-11
Certificates immediately prior to such Distribution Date over (y) the
lesser of
(A) the product of (i) 97.10% and (ii) the aggregate Stated Principal
Balance of
the Mortgage Loans as of the last day of the related Due Period (after
giving
effect to scheduled payments of principal due during the related Due
Period, to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) and (B) the excess of
the
aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of
the related Due Period (after giving effect to scheduled payments of
principal
due during the related Due Period, to the extent received or advanced,
and
unscheduled collections of principal received during the related Prepayment
Period) over $3,003,198.96.
“Class
P
Certificate”: Any one of the Class P Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed
hereto
as Exhibit A-17 and evidencing a Regular Interest in REMIC V for purposes
of the
REMIC Provisions.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular
Interest
in REMIC III for purposes of the REMIC Provisions.
“Class
R
Certificate”: Any one of the Class R Certificates executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed
hereto
as Exhibit A-18 and evidencing the ownership of the Class R-I Interest,
the
Class R-II Interest and the Class R-III Interest.
“Class
R-X Certificate”: The Class R-X Certificate executed, authenticated and
delivered by the Trust Administrator, substantially in the form annexed
hereto
as Exhibit A-19 and evidencing the ownership of the Class R-IV Interest,
the
Class R-V Interest and the Class R-VI Interest.
“Class
R-I Interest”: The uncertificated Residual Interest in REMIC I.
“Class
R-II Interest”: The uncertificated Residual Interest in REMIC II.
“Class
R-III Interest”: The uncertificated Residual Interest in REMIC III.
“Class
R-IV Interest”: The uncertificated Residual Interest in REMIC IV.
“Class
R-V Interest”: The uncertificated Residual Interest in REMIC V.
“Class
R-VI Interest”: The uncertificated Residual Interest in REMIC VI.
“Class
SWAP-IO Interest”: An uncertificated interest in the Trust Fund evidencing a
Regular Interest in REMIC III.
“Closing
Date”: November 30 2006.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The account or accounts created and maintained, or caused to be
created and maintained, by each Servicer pursuant to Section 3.10(a),
which,
with respect to the Collection Account created and maintained by HomEq,
shall be
entitled “HomEq Servicing, as a Servicer for U.S. Bank National Association, as
Trustee, in trust for the registered holders of MASTR Asset Backed Securities
Trust 2006-HE4, Mortgage Pass-Through Certificates” and with respect to the
Collection Account created and maintained by ▇▇▇▇▇ Fargo, shall be entitled
“▇▇▇▇▇ Fargo Bank, N.A., as a Servicer for U.S. Bank National Association,
as
Trustee, in trust for the registered holders of MASTR Asset Backed Securities
Trust 2006-HE4, Mortgage Pass-Through Certificates.” Each Collection Account
must be an Eligible Account
“Commission”:
The U.S. Securities and Exchange Commission.
“Compensating
Interest”: With respect to each Servicer and any Principal Prepayment, the
amount in respect of Prepayment Interest Shortfalls required to be paid
by the
related Servicer pursuant to Section 3.24 from its own funds without
right of
reimbursement and with respect to the Master Servicer, the amount in
respect of
Prepayment Interest Shortfalls required to be paid by the Master Servicer
pursuant to Section 3A.10 from its own funds without right of reimbursement
except as provided in Section 3A.10, in each case, up to the aggregate
compensation payable to the related Servicer or the Master Servicer,
as
applicable, for the related collection period under this Agreement.
“Compensating
Interest Payment”: As defined in Section 3.24.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee or the Trust
Administrator, as the case may be, at which at any particular time its
corporate
trust business in connection with this Agreement shall be administered,
which
office at the date of the execution of this instrument is located at
(i) with
respect to the Trustee, U.S. Bank National Association, ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇-▇▇-▇▇▇▇,
▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance/MASTR 2006-HE4,
or at such
other address as the Trustee may designate from time to time by notice
to the
Certificateholders, the Depositor, the Servicers, the Master Servicer,
the
Originators, and the Trust Administrator, or (ii) with respect to the
Trust
Administrator, (A) for Certificate transfer and surrender purposes, ▇▇▇▇▇
Fargo
Bank, N.A., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇,
Attention: Corporate Trust Services—MASTR 2006-HE4 and (B) for all other
purposes, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Services—MASTR 2006-HE4, or in each case at
such other address as the Trust Administrator may designate from time
to time by
notice to the Certificateholders, the Depositor, the Servicers, the Master
Servicer, the Originators and the Trustee.
“Corresponding
Certificate”: With respect to each REMIC II Regular Interest set forth below,
the corresponding Regular Certificate set forth in the table below:
|
REMIC
II Regular Interest
|
Regular
Certificate
|
|
II-LTA1
|
Class
A-1
|
|
II-LTA2
|
Class
▇-▇
|
|
▇▇-▇▇▇▇
|
▇▇▇▇▇
▇-▇
|
|
▇▇-▇▇▇▇
|
Class
A-4
|
|
II-LTM1
|
Class
M-1
|
|
II-LTM2
|
Class
M-2
|
|
II-LTM3
|
Class
M-3
|
|
II-LTM4
|
Class
M-4
|
|
II-LTM5
|
Class
M-5
|
|
II-LTM6
|
Class
M-6
|
|
II-LTM7
|
Class
M-7
|
|
II-LTM8
|
Class
M-8
|
|
II-LTM9
|
Class
M-9
|
|
II-LTM10
|
Class
M-10
|
|
II-LTM11
|
Class
M-11
|
|
II-LTP
|
Class
P
|
“Credit
Enhancement Percentage”: For any Distribution Date, the percentage equivalent of
a fraction, the numerator of which is the aggregate Certificate Principal
Balance of the Mezzanine Certificates and the Class CE Certificates,
and the
denominator of which is the aggregate Stated Principal Balance of the
Mortgage
Loans, calculated prior to taking into account distributions of principal
on the
Mortgage Loans and distribution of the Principal Distribution Amount
to the
Certificates then entitled to distributions of principal on such Distribution
Date.
“Credit
Risk Management Agreement”:
The
respective agreements between the Credit Risk Manager and each Servicer
and/or
Master Servicer regarding the loss mitigation and advisory services to
be
provided by the Credit Risk Manager.
“Credit
Risk Manager”: ▇▇▇▇▇▇▇ Fixed Income Services Inc., a Colorado corporation,
formerly known as The Murrayhill Company, and its successors and assigns.
“Credit
Risk Manager Fee”: The amount payable to the Credit Risk Manager on each
Distribution Date as compensation for all services rendered by it in
the
exercise and performance of any of the powers and duties of the Credit
Risk
Manager under the respective Credit Risk Management Agreement and any
other
agreement pursuant to which the Credit Risk Manager is to perform any
duties
with respect to the related Mortgage Loans, which amount shall equal
one twelfth
of the product of (i) the Credit Risk Manager Fee Rate (without regard
to the
words “per annum”) and (ii) the aggregate Stated Principal Balance of the
related Mortgage Loans and any related REO Properties as of the first
day of the
related Due Period.
“Credit
Risk Manager Fee Rate”: 0.0125% per annum.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount
of
Realized Losses incurred from the Cut-off Date to the last day of the
preceding
calendar month and the denominator of which is the sum of the aggregate
Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
“Custodian”:
The
entity acting as custodian of the Mortgage Files on behalf of and for
the
benefit of the Trustee, which as of the Closing Date shall be ▇▇▇▇▇
Fargo.
“Cut-off
Date”: With respect to each Original Mortgage Loan, November 1, 2006. With
respect to all Qualified Substitute Mortgage Loans, their respective
dates of
substitution. References herein to the “Cut-off Date,” when used with respect to
more than one Mortgage Loan, shall be to the respective Cut-off Dates
for such
Mortgage Loans.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid Stated
Principal Balance thereof as of the Cut-off Date of such Mortgage Loan
(or as of
the applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan), after giving effect to scheduled payments due on or before
the
Cut-off Date, whether or not received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount
less than
the then outstanding principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”: As defined in Section 5.01(b).
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by a Qualified
Substitute Mortgage Loan.
“Delinquency
Percentage”: With respect to any Distribution Date, the percentage equivalent to
a fraction, the numerator of which is the aggregate Stated Principal
Balance of
all Mortgage Loans that, as of the close of business on the last day
of the
previous calendar month, are 60 or more days Delinquent (including Mortgage
Loans in foreclosure, have been converted to REO Properties or are in
bankruptcy), taking into account any prepayments received through the
end of the
related Prepayment Period, and the denominator of which is the aggregate
Principal Balance of all Mortgage Loans as of the close of business on
the last
day of such month, taking into account any prepayments received through
the end
of the related Prepayment Period.
“Delinquent”:
A Mortgage Loan is Delinquent if any Monthly Payment due on a Due Date
is not
made by the close of business on the next scheduled Due Date for such
Mortgage
Loan (as determined and reported based on the “OTS” methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans and not
including
any Liquidated Mortgage Loans).
“Depositor”:
Mortgage Asset Securitization Transactions, Inc., a Delaware corporation,
or its
successor in interest.
“Depository”:
The Depository Trust Company, or any successor Depository hereafter named.
The
nominee of the initial Depository, for purposes of registering those
Certificates that are to be Book-Entry Certificates, is Cede & Co. The
Depository shall at all times be a “clearing corporation” as defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York and
a “clearing
agency” registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended.
“Depository
Participant”: A broker, dealer, bank or other financial institution or other
Person for whom from time to time a Depository effects book-entry transfers
and
pledges of securities deposited with the Depository.
“Determination
Date”: With respect to any Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“Directly
Operate”: With respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of such
REO
Property, the holding of such REO Property primarily for sale to customers,
the
performance of any construction work thereon or any use of such REO Property
in
a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicers or
the Master
Servicer on behalf of the Trustee) shall not be considered to Directly
Operate
an REO Property solely because the Trustee (or the Servicers or the Master
Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants,
enters into or renews leases, deals with taxes and insurance, or makes
decisions
as to repairs or capital expenditures with respect to such REO
Property.
“Discount
Factor”: With
respect to each Distribution Date, the product of each Projected Zero
Factor for
each preceding Distribution Date, including such Distribution Date, with
the
Projected Zero Factor for the Significance Percentage Calculation Date
equal to
1.
“Disqualified
Organization”: Any of the following: (i) the United States, any State or
political subdivision thereof, any possession of the United States, or
any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and,
except
for ▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected
by such
governmental unit), (ii) any foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers’ cooperatives described in Section 521 of the
Code) which is exempt from the tax imposed by Chapter 1 of the Code (including
the tax imposed by Section 511 of the Code on unrelated business taxable
income), (iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” and
(vi) any other Person so designated by the Trustee or the Trust Administrator
based upon an Opinion of Counsel that the holding of an Ownership Interest
in a
Residual Certificate by such Person may cause any Trust REMIC or any
Person
having an Ownership Interest in any Class of Certificates (other than
such
Person) to incur a liability for any federal tax imposed under the Code
that
would not otherwise be imposed but for the Transfer of an Ownership Interest
in
a Residual Certificate to such Person. The terms “United States,” “State” and
“international organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
“Distribution
Account”: The trust account or accounts created and maintained by the Trust
Administrator pursuant to Section 3A.11 which shall be entitled “▇▇▇▇▇
Fargo Bank, N.A. as Trust Administrator, in trust for the registered
holders of
MASTR Asset Backed Securities Trust 2006-HE4, Mortgage Pass-Through
Certificates, Series 2006-HE4—Distribution Account.” The Distribution Account
must be an Eligible Account.
“Distribution
Date”: The 25th
day of
any month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in December 2006.
“Due
Date”: With respect to each Distribution Date, the first day of the calendar
month in which such Distribution Date occurs, which is generally the
day of the
month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any
days of grace.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the related Due Date.
“Eligible
Account”: Any of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt
obligations of which (or, in the case of a depository institution or
trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated P-1 by
▇▇▇▇▇’▇ or
A-1+ by S&P (or comparable ratings if ▇▇▇▇▇’▇ and S&P are not the Rating
Agencies) at the time any amounts are held on deposit therein, (ii) with
respect
to any escrow account, an account or accounts the deposits in which are
fully
insured by the FDIC (to the limits established by such corporation),
the
uninsured deposits in which account are otherwise secured such that,
as
evidenced by an Opinion of Counsel delivered to the NIMS Insurer, the
Trust
Administrator, the Trustee and to each Rating Agency, the Certificateholders
will have a claim with respect to the funds in such account or a perfected
first
priority security interest against such collateral (which shall be limited
to
Permitted Investments) securing such funds that is superior to claims
of any
other depositors or creditors of the depository institution with which
such
account is maintained, (iii) a trust account or accounts maintained with
the
trust department of a federal or state chartered depository institution,
national banking association or trust company acting in its fiduciary
capacity
or (iv) an account otherwise acceptable to the NIMS Insurer and to each
Rating
Agency without reduction or withdrawal of their then current ratings
of the
Certificates as evidenced by a letter from each Rating Agency to the
Trust
Administrator, the Trustee and the NIMS Insurer. Eligible Accounts may
bear
interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Estate
in Real Property”: A fee simple estate in a parcel of land.
“Excess
Overcollateralized Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, the excess, if any,
of (i) the
Overcollateralized Amount for such Distribution Date, assuming that 100%
of the
Principal Remittance Amount is applied as a principal distribution on
such
Distribution Date over (ii) the Overcollateralization Target Amount for
such
Distribution Date.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the sum of (i) Monthly Interest Distributable Amount payable
on
the Class CE Certificates on such Distribution Date as reduced by Realized
Losses allocated thereto with respect to such Distribution Date pursuant
to
Section 4.04 and (ii) any amounts received under the Interest Rate Swap
Agreement or the Interest
Rate Cap Agreement
for this
purpose and (y) the Overcollateralization Deficiency Amount for such
Distribution Date.
“Extraordinary
Trust Fund Expense”: Any amounts reimbursable to the Master Servicer pursuant to
Section 3A.03 or Section 6.03, to the Trustee pursuant to Section 3.06
or Section 7.02, to each Servicer, the Trustee or the Trust Administrator,
or
any director, officer, employee or agent of the Trustee or the Trust
Administrator from the Trust Fund pursuant to Section 6.03,
Section 8.05 or Section 10.01(c) and any amounts payable from the
Distribution Account in respect of taxes pursuant to
Section 10.01(g)(iii).
“▇▇▇▇▇▇
▇▇▇”: ▇▇▇▇▇▇ ▇▇▇, formerly known as the Federal National Mortgage Association,
or any successor thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Recovery Determination”: With respect to any defaulted Mortgage Loan or any REO
Property (other than a Mortgage Loan or REO Property purchased or repurchased
by
an Originator, the Seller, the Depositor, a Servicer or the NIMS Insurer
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or Section
9.01), a determination made by the related Servicer that all Insurance
Proceeds,
Liquidation Proceeds and other payments or recoveries which the related
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. Each Servicer
shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
“Fixed-Rate
Mortgage Loans”: Each of the Mortgage Loans identified in the Mortgage Loan
Schedule whose Mortgage Rates remain fixed for the life of the Mortgage
Loan.
“Fixed
Swap Payment”: With respect to any Distribution Date, a fixed amount equal to
the related amount set forth in the Interest Rate Swap Agreement.
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) one-month LIBOR (as determined pursuant to the Interest
Rate
Swap Agreement for such Distribution Date), (ii) the related Base Calculation
Amount (as defined in the Interest Rate Swap Agreement), (iii) 250 and
(iv) a
fraction, the numerator of which is the actual number of days elapsed
from and
including the previous Distribution Date to but excluding the current
Distribution Date (or, for the first Distribution Date, the actual number
of
days elapsed from the Closing Date to but excluding the first Distribution
Date), and the denominator of which is 360.
“Form
8-K
Disclosure Information”: The meaning set forth in Section
4.06(a)(iii).
“Formula
Rate”: For any Distribution Date and the Class A Certificates and the Mezzanine
Certificates, the lesser of (i) One-Month LIBOR plus the related Certificate
Margin and (ii) the Maximum Cap Rate.
“▇▇▇▇▇▇▇
Mac”: ▇▇▇▇▇▇▇ Mac, formerly known as the Federal Home Loan Mortgage Corporation,
or any successor thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the
Index on
each Adjustment Date in accordance with the terms of the related Mortgage
Note
used to determine the Mortgage Rate for such Adjustable-Rate Mortgage
Loan.
“Highest
Priority”: As of any date of determination, the Class of Mezzanine Certificates
then outstanding with a Certificate Principal Balance greater than zero,
with
the highest priority for payments pursuant to Section 4.01, in the
following order: Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5,
Class
M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class M-11
Certificates.
“HomEq”:
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing.
“HomEq
Mortgage Loans”: The Mortgage Loans serviced by HomEq.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class CE
Certificates, the Class P Certificates, the Class R Certificates and/or
the
Class R-X Certificates (or any portion thereof) which may or may not
be
guaranteed by the NIMS Insurer.
“Independent”:
When
used with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a
Person who
(A) is in fact independent of another specified Person and any affiliate
of such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person,
(C) is not
connected with such other Person or any affiliate of such other Person
as an
officer, employee, promoter, underwriter, trustee, partner, director
or Person
performing similar functions and (D) is not a member of the immediate
family of
a Person defined in clause (B) or (C) above.
“Independent
Contractor”: Either (i) any Person (other than a Servicer or the Master
Servicer) that would be an “independent contractor” with respect to REMIC I
within the meaning of Section 856(d)(3) of the Code if REMIC I were a real
estate investment trust (except that the ownership tests set forth in
that
section shall be considered to be met by any Person that owns, directly
or
indirectly, 35% or more of any Class of Certificates), so long as REMIC
I does
not receive or derive any income from such Person and provided that the
relationship between such Person and REMIC I is at arm’s length, all within the
meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including either Servicer and the Master Servicer) if the Trust
Administrator has received an Opinion of Counsel for the benefit of the
Trustee
and the Trust Administrator to the effect that the taking of any action
in
respect of any REO Property by such Person, subject to any conditions
therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a)
of the Code), or cause any income realized in respect of such REO Property
to
fail to qualify as Rents from Real Property.
“Index”:
With respect to each Adjustable Rate Mortgage Loan and with respect to
each
related Adjustment Date, the index specified in the related Mortgage
Note.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance
policy, covering a Mortgage Loan to the extent such proceeds are not
to be
applied to the restoration of the related Mortgaged Property or released
to the
Mortgagor in accordance with the procedures that the related Servicer
would
follow in servicing mortgage loans held for its own account, subject
to the
terms and conditions of the related Mortgage Note and Mortgage.
“Interest
Determination Date”: With respect to the Class A Certificates, the Mezzanine
Certificates, REMIC II Regular Interest II-LTA1, REMIC II Regular Interest
II-LTA2, REMIC II Regular Interest II-LTA3, REMIC II Regular Interest
II-LTA4,
REMIC II Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2,
REMIC II
Regular Interest II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II
Regular
Interest II-LTM5, REMIC II Regular Interest II-LTM6, REMIC II Regular
Interest
II-LTM7, REMIC II Regular Interest II-LTM8, REMIC II Regular Interest
II-LTM9,
REMIC II Regular Interest II-LTM10 and REMIC II Regular Interest II-LTM11
and
any Accrual Period therefor, the second London Business Day preceding
the
commencement of such Accrual Period.
“Interest
Rate Cap Collateral Account”: Shall mean the segregated trust account created
and maintained by the Trust Administrator pursuant to Section 4.11
hereof.
“Interest
Rate Cap Agreement”: The Interest Rate Cap Agreement, dated as of November 30,
2006, between the Trust Administrator and the Interest Rate Cap Provider,
including any schedule, confirmations, credit support annex or other
credit
support document relating thereto, and attached hereto as Exhibit
K.
“Interest
Rate Cap Credit Support Annex”: The credit support annex, dated as of November
30, 2006, between the Trust Administrator and the Interest Rate Cap Provider,
which is annexed to and forms part of the Interest Rate Cap
Agreement.
“Interest
Rate Cap Provider”: The cap provider under the Interest Rate Cap Agreement.
Initially, the Interest Rate Cap Provider shall be Swiss Re Financial
Products
Corporation.
“Interest
Rate Swap Agreement”: The interest rate swap agreement, dated as of November 30,
2006, between the Swap Provider and the Supplemental Interest Trust Trustee,
including any schedule, confirmations, credit support annex and/or other
credit
support documents relating thereto, and attached hereto as Exhibit
M.
“Interest
Remittance Amount”: With respect to any Distribution Date, that portion of the
Available Funds for such Distribution Date attributable to interest received
or
advanced with respect to the Mortgage Loans.
“Late
Collections”: With respect to any Mortgage Loan and any Due Period, all amounts
received by the related Servicer subsequent to the Determination Date
immediately following such Due Period, whether as late payments of Monthly
Payments or as Insurance Proceeds, Liquidation Proceeds or otherwise,
which
represent late payments or collections of principal and/or interest due
(without
regard to any acceleration of payments under the related Mortgage and
Mortgage
Note) but delinquent for such Due Period and not previously
recovered.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the related Servicer has determined, in its reasonable judgment,
as of the
end of the related Prepayment Period, that all Liquidation Proceeds which
it
expects to recover with respect to the liquidation of the Mortgage Loan
or
disposition of the related REO Property have been recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the following events: (i)
such
Mortgage Loan is paid in full; (ii) a Final Recovery Determination is
made as to
such Mortgage Loan; or (iii) such Mortgage Loan is removed from REMIC
I by
reason of its being purchased, repurchased or replaced pursuant to or
as
contemplated by Section 2.03, Section 3.16(c) or Section 9.01. With respect
to
any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property
is
removed from REMIC I by reason of its being purchased pursuant to Section
9.01.
“Liquidation
Proceeds”: The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the related Servicer
in
connection with (i) the taking of all or a part of a Mortgaged Property
by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan through a trustee’s sale, foreclosure sale or
otherwise, or (iii) the purchase, repurchase or substitution of a Mortgage
Loan
or an REO Property pursuant to or as contemplated by Section 2.03, Section
3.16(c) or Section 9.01.
“Loan-to-Value
Ratio”: As of any date of determination, the fraction, expressed as a
percentage, the numerator of which is the principal balance of the related
Mortgage Loan at such date and the denominator of which is the Value
of the
related Mortgaged Property.
“London
Business Day”: Any day on which banks in the City of London and the City of New
York are open and conducting transactions in United States dollars.
“Loss
Severity Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the amount of Realized
Losses incurred on a Mortgage Loan and the denominator of which is the
principal
balance of such Mortgage Loan immediately prior to the liquidation of
such
Mortgage Loan.
“Marker
Rate”: With respect to the Class CE Interest and any Distribution Date, a
per
annum rate equal to two (2) times the weighted average of the REMIC II
Remittance Rate for each of REMIC II Regular Interests ▇▇-▇▇▇▇, ▇▇-▇▇▇▇,
▇▇-▇▇▇▇,
▇▇-▇▇▇▇, II-LTM1, II-LTM2, II-LTM3, II-LTM4, II-LTM5, II-LTM6, II-LTM7,
II-LTM8,
II-LTM9, II-LTM10, II-LTM11 and II-LTZZ, with the rate on each such REMIC
II
Regular Interest (other than REMIC II Regular Interest II-LTZZ) subject
to a cap
equal to the lesser of (a) One-Month LIBOR plus the related Certificate
Margin
and (b) the Net WAC Rate for the purpose of this calculation and with
the rate
on REMIC II Regular Interest II-LTZZ subject to a cap of zero for the
purpose of
this calculation; provided, however, that solely for this purpose, calculations
of the REMIC II Remittance Rate and the related caps with respect to
such REMIC
II Regular Interests (other than REMIC II Regular Interest II-LTZZ) shall
be
multiplied by a fraction, the numerator of which is the actual number
of days
elapsed in the related Accrual Period and the denominator of which is
30.
“Master
Servicer”: As of the Closing Date, ▇▇▇▇▇ Fargo and thereafter, its respective
successors in interest who meet the qualifications of the Master Servicer
under
this Agreement or any successor appointed hereunder. The Master Servicer
and the
Trust Administrator shall at all times be the same Person.
“Master
Servicer Event of Default”: One or more of the events described in
Section 7.01(b).
“Master
Servicing Compensation”: The meaning specified in
Section 3A.09.
“Master
Servicer Fee”: With respect to each Mortgage Loan, the amount of the annual fee
paid to the Master Servicer, which shall, for a period of one full month,
be
equal to one-twelfth of the product of (a) the Master Servicer Fee Rate
(without
regard to the words “per annum”) and (b) the Stated Principal Balance of such
Mortgage Loan as of the first day of the related Due Period. Such fee
shall be
payable monthly, computed on the basis of the same principal amount and
period
respecting which any related interest payment on a Mortgage Loan is received.
“Master
Servicer Fee Rate”: With respect to each Mortgage Loan, the rate of 0.0020% per
annum.
“Master
Servicing Transfer Costs”: Shall mean all reasonable out-of-pocket costs and
expenses incurred by the Trustee in connection with the transfer of master
servicing from a predecessor master servicer, including, without limitation,
any
reasonable costs or expenses associated with the complete transfer of
all
servicing data and master servicing data and the completion, correction
or
manipulation of such servicing data as may be required by the Trustee
to correct
any errors or insufficiencies in the servicing data or otherwise to enable
the
Trustee to master service the Mortgage Loans properly and
effectively.
Maximum
Cap Rate”: For any Distribution Date with respect to the Class A Certificates
and the Mezzanine Certificates, a per annum rate equal to the sum of
(i) the
product of (x) the weighted average of the Adjusted Net Maximum Mortgage
Rates
of the Mortgage Loans, weighted based on their outstanding Stated Principal
Balances as of the first day of the calendar month preceding the month
in which
the Distribution Date occurs and (y) a fraction, the numerator of which
is 30
and the denominator of which is the actual number of days elapsed in
the related
Accrual Period and (ii) (A) an amount, expressed as a percentage, equal
to a
fraction, the numerator of which is equal to the Net Swap Payment made
by the
Swap Provider and the denominator of which is equal to the aggregate
Stated
Principal Balance of the Mortgage Loans, multiplied by 12 and (B) an
amount,
expressed as a percentage, equal to a fraction, the numerator of which
is equal
to payments received under the Interest Rate Cap Agreement and the denominator
of which is equal to the aggregate Stated Principal Balance of the Mortgage
Loans, multiplied by 12 minus (a) an amount, expressed as a percentage,
equal to
the product of (I) the Net Swap Payment, if any, paid by the Trust for
such
Distribution Date divided by the aggregate Stated Principal Balance of
the
Mortgage Loans and (II) 12 and (b) an amount, expressed as a percentage,
equal
to the product of (x) the Swap Termination Payment, if any, due from
the Trust
(other than any Swap Termination Payment resulting from a Swap Provider
Trigger
Event) for such Distribution Date, divided by the aggregate Stated Principal
Balance of the Mortgage Loans and (y) 12.
“Maximum
II-LTZZ Uncertificated Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (i) accrued interest at the REMIC II
Remittance
Rate applicable to REMIC II Regular Interest II-LTZZ for such Distribution
Date
on a balance equal to the Uncertificated Balance of REMIC II Regular
Interest
II-LTZZ minus the REMIC II Overcollateralization Amount, in each case
for such
Distribution Date, over (ii) Uncertificated Interest on REMIC II Regular
Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular
Interest
II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular Interest
II-LTM1,
REMIC II Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3,
REMIC II
Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II
Regular
Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular
Interest
II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular Interest
II-LTM10,
REMIC II Regular Interest II-LTM11 for such Distribution Date, with the
rate on
each such REMIC II Regular Interest subject to a cap equal to the lesser
of
(a) One-Month LIBOR plus the related Certificate Margin and (b) the Net WAC
Rate; provided, however, each cap shall be multiplied by a fraction,
the
numerator of which is the actual number of days elapsed in the related
Accrual
Period and the denominator of which is 30.
“Maximum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage
Rate
thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized
and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Mezzanine
Certificate”: Any Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate, Class M-9
Certificate, Class M-10 Certificate or Class M-11 Certificate.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with
MERS on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage
Rate
thereunder.
“MOM
Loan”: With respect to any Mortgage Loan, MERS acting as the mortgagee of
such
Mortgage Loan, solely as nominee for the originator of such Mortgage
Loan and
its successors and assigns, at the origination thereof.
“Monthly
Interest Distributable Amount”: With respect to the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates and any Distribution
Date,
the amount of interest accrued during the related Accrual Period at the
related
Pass-Through Rate on the Certificate Principal Balance (or Notional Amount
in
the case of the Class CE Certificates) of such Class immediately prior
to such
Distribution Date, calculated on an actual/360 basis, reduced (to not
less than
zero) by any Prepayment Interest Shortfalls (to the extent not covered
by
payments made by the related Servicer or the Master Servicer) and Relief
Act
Interest Shortfalls (allocated to each such Certificate based on its
respective
entitlements to interest irrespective of any Prepayment Interest Shortfalls
and
Relief Act Interest Shortfalls for such Distribution Date).
“Monthly
Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by the
related
Mortgagor from time to time under the related Mortgage Note, determined:
(a)
after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction
with respect to such Mortgage Loan and (ii) any reduction in the amount
of
interest collectible from the related Mortgagor pursuant to the Relief
Act; (b)
without giving effect to any extension granted or agreed to by the related
Servicer pursuant to Section 3.07 and (c) on the assumption that all
other
amounts, if any, due under such Mortgage Loan are paid when due.
“Monthly
Statement”: The statement prepared by the Trust Administrator pursuant to
Section 4.02.
“Moody’s”:
▇▇▇▇▇’▇ Investors Service, Inc. or its successor in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on, or first or second priority security interest in, a Mortgaged Property
securing a Mortgage Note.
“Mortgage
File”: The mortgage documents listed in Section 2.01 pertaining to a
particular Mortgage Loan and any additional documents required to be
added to
the Mortgage File pursuant to this Agreement.
“Mortgage
Loan”: Any Adjustable-Rate Mortgage Loan or Fixed-Rate Mortgage Loan transferred
and assigned to the Trustee and delivered to the Trustee pursuant to
Section
2.01 or Section 2.03(b) of this Agreement as held from time to time as
a part of
the Trust, the Mortgage Loans so held being identified in the Mortgage
Loan
Schedule.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in REMIC I
on such date, attached hereto as Schedule 1. The Mortgage Loan Schedule
shall
set forth the following information with respect to each Mortgage
Loan:
(i) the
Mortgage Loan identifying number;
(ii) [reserved];
(iii) the
state
and zip code of the Mortgaged Property;
(iv) a
code
indicating whether the Mortgaged Property was represented by the borrower,
at
the time of origination, as being owner-occupied;
(v) the
type
of Residential Dwelling constituting the Mortgaged Property;
(vi) the
original months to maturity;
(vii) the
stated remaining months to maturity from the Cut-off Date based on
the original
amortization schedule;
(viii) the
Loan-to-Value Ratio at origination;
(ix) the
Mortgage Rate in effect immediately following the Cut-off Date;
(x) the
date
on which the first Monthly Payment was due on the Mortgage Loan;
(xi) the
stated maturity date;
(xii) the
amount of the Monthly Payment at origination;
(xiii) the
amount of the Monthly Payment due on the first Due Date after the Cut-off
Date;
(xiv) the
last
Due Date on which a Monthly Payment was actually applied to the unpaid
Stated
Principal Balance;
(xv) the
original principal amount of the Mortgage Loan;
(xvi) the
Stated Principal Balance of the Mortgage Loan as of the close of business
on the
Cut-off Date;
(xvii) a
code
indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out refinancing);
(xviii) the
Mortgage Rate at origination;
(xix) a
code
indicating the documentation program (i.e.,
full
documentation, limited documentation, stated income documentation);
(xx) the
risk
grade assigned by the related Originator;
(xxi) the
Value
of the Mortgaged Property;
(xxii) the
sale
price of the Mortgaged Property, if applicable;
(xxiii) the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
(xxiv) the
type
and term of the related Prepayment Charge;
(xxv) the
rounding code;
(xxvi) the
program code;
(xxvii) a
code
indicating the lien priority for Mortgage Loans;
(xxviii)
with
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage
Rate, the
Maximum Mortgage Rate, the Gross Margin, the next Adjustment Date and
the
Periodic Rate Cap;
(xxix) the
credit score (“FICO”) of such Mortgage Loan; and
(xxx) the
total
amount of points and fees charged such Mortgage Loan.
The
Mortgage Loan Schedule shall set forth the following information with
respect to
the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the number
of
Mortgage Loans (separately identifying the number of Fixed-Rate Mortgage
Loans
and the number of Adjustable-Rate Mortgage Loans); (2) the current Stated
Principal Balance of the Mortgage Loans; (3) the weighted average Mortgage
Rate
of the Mortgage Loans and (4) the weighted average maturity of the Mortgage
Loans. The Mortgage Loan Schedule shall be amended from time to time
by the
Depositor in accordance with the provisions of this Agreement. With respect
to
any Qualified Substitute Mortgage Loan, the Cut-off Date shall refer
to the
related Cut-off Date for such Mortgage Loan, determined in accordance
with the
definition of Cut-off Date herein.
“Mortgage
Note”: The original executed note or other evidence of the indebtedness of
a
Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on the Mortgage Loan Schedule
and
existing from time to time thereafter, and any REO Properties acquired
in
respect thereof.
“Mortgage
Rate”: With respect to each Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan from time to time in accordance with the
provisions of the related Mortgage Note, which rate with respect to the
Adjustable-Rate Mortgage Loans, (A) as of any date of determination until
the
first Adjustment Date following the Cut-off Date shall be the rate set
forth in
the Mortgage Loan Schedule as the Mortgage Rate in effect immediately
following
the Cut-off Date and (B) as of any date of determination thereafter shall
be the
rate as adjusted on the most recent Adjustment Date equal to the sum,
rounded to
the nearest or next highest 0.125% as provided in the Mortgage Note,
of the
Index, as most recently available as of a date prior to the Adjustment
Date as
set forth in the related Mortgage Note, plus the related Gross Margin;
provided
that the Mortgage Rate on such Adjustable-Rate Mortgage Loan on any Adjustment
Date shall never be more than the lesser of (i) the sum of the Mortgage
Rate in
effect immediately prior to the Adjustment Date plus the related Periodic
Rate
Cap, if any, and (ii) the related Maximum Mortgage Rate, and shall never
be less
than the greater of (i) the Mortgage Rate in effect immediately prior
to the
Adjustment Date less the Periodic Rate Cap, if any, and (ii) the related
Minimum
Mortgage Rate. With respect to each Mortgage Loan that becomes an REO
Property,
as of any date of determination, the annual rate determined in accordance
with
the immediately preceding sentence as of the date such Mortgage Loan
became an
REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of an Estate in Real Property improved by a Residential
Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan or any other
disposition of the related Mortgaged Property (including REO Property)
the
related Liquidation Proceeds and Insurance Proceeds net of Advances,
Servicing
Advances, Servicing Fees and any other accrued and unpaid servicing fees
received and retained in connection with the liquidation of such Mortgage
Loan
or related Mortgaged Property and any amounts due on such Mortgage Loans
on or
prior to the Cut-off Date.
“Net
Monthly Excess Cashflow”: With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and
(b) the
excess of (x) Available Funds for such Distribution Date over (y) the
sum for
such Distribution Date of (A) the Monthly Interest Distributable Amounts
for the
Class A Certificates and the Mezzanine Certificates, (B) the Unpaid Interest
Shortfall Amounts for the Class A Certificates and (C) the Principal
Remittance
Amount.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property)
as of any date of determination, a per annum rate of interest equal to
the then
applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate and
the Master Servicer Fee Rate.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the
case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: For any Distribution Date with respect to the Class A Certificates
and
the Mezzanine Certificates, a per annum rate equal to the product of
(x) the
weighted average of the Adjusted Net Mortgage Rates of the Mortgage Loans,
weighted based on their outstanding Principal Balances as of the first
day of
the calendar month preceding the month in which the Distribution Date
occurs
minus (i) an amount, expressed as a percentage, equal to the product
of (A) the
Net Swap Payment, if any, paid by the Trust for such Distribution Date
divided
by the aggregate Stated Principal Balance of the Mortgage Loans and (B)
12 and
(ii) an amount, expressed as a percentage, equal to the product of (A)
the Swap
Termination Payment, if any, due from the Trust (other than any Swap
Termination
Payment resulting from a Swap Provider Trigger Event) for such Distribution
Date, divided by the aggregate Stated Principal Balance of the Mortgage
Loans
and (B) 12, and (y) a fraction, the numerator of which is 30 and the
denominator
of which is the actual number of days elapsed in the related Accrual
Period.
“Net
WAC
Rate Carryover Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, the sum of (A) the
positive
excess of (i) the amount of interest accrued on such Class of Certificates
on
such Distribution Date calculated at the related Formula Rate, over (ii)
the
amount of interest accrued on such Class of Certificates at the Net WAC
Rate for
such Distribution Date and (B) the Net WAC Rate Carryover Amount for
the
previous Distribution Date not previously paid, together with interest
thereon
at a rate equal to the Formula Rate for such Class of Certificates for
such
Distribution Date and for such Accrual Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 4.07.
“New
Lease”: Any lease of REO Property entered into on behalf of REMIC I, including
any lease renewed or extended on behalf of REMIC I, if REMIC I has the
right to
renegotiate the terms of such lease.
“NIMS
Insurer”: Any insurer that is guaranteeing certain payments under notes secured
by collateral which includes all or a portion of the Class CE Certificates,
the
Class P Certificates, the Class R Certificates and/or the Class R-X
Certificates.
“Nonrecoverable
Advance”: Any Advance previously made or proposed to be made in respect of a
Mortgage Loan or REO Property that, in the good faith business judgment
of the
related Servicer or the Master Servicer, as applicable, will not or,
in the case
of a proposed Advance, would not be ultimately recoverable from related
Late
Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage
Loan or
REO Property as provided herein.
“Nonrecoverable
Servicing Advance”: Any Servicing Advance previously made or proposed to be made
in respect of a Mortgage Loan or REO Property that, in the good faith
business
judgment of the related Servicer, will not or, in the case of a proposed
Servicing Advance, would not be ultimately recoverable from related Late
Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage
Loan or
REO Property as provided herein.
“Non-United
States Person”: Any Person other than a United States Person.
“Notional
Amount”: With respect to the Class CE Interest and any Distribution Date, the
aggregate Uncertificated Balance of the REMIC II Regular Interests (other
than
REMIC II Regular Interest II-LTP) for such Distribution Date.
“Officer’s
Certificate”: A certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President or a vice president (however denominated),
and by the Treasurer, the Secretary, or one of the assistant treasurers
or
assistant secretaries of a Servicer, the Master Servicer, an Originator,
the
Seller or the Depositor, as applicable.
“One-Month
LIBOR”: With respect to the Class A Certificates, the Mezzanine Certificates,
REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2,
REMIC
II
Regular Interest II-LTA3,
REMIC
II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC
II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC
II
Regular Interest II-LTM6,
REMIC
II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC
II Regular
Interest II-LTM9, REMIC II Regular Interest II-LTM10 and REMIC II Regular
Interest II-LTM11 and any Accrual Period therefor, the rate determined
by the
Trust Administrator on the related Interest Determination Date on the
basis of
the offered rate for one-month U.S. dollar deposits, as such rate appears
on
Telerate Page 3750 as of 11:00 a.m. (London time) on such Interest Determination
Date; provided that if such rate does not appear on Telerate Page 3750,
the rate
for such date will be determined on the basis of the offered rates of
the
Reference Banks for one-month U.S. dollar deposits, as of 11:00 a.m.
(London
time) on such Interest Determination Date. In such event, the Trust
Administrator will request the principal London office of each of the
Reference
Banks to provide a quotation of its rate. If on such Interest Determination
Date, two or more Reference Banks provide such offered quotations, One-Month
LIBOR for the related Accrual Period shall be the arithmetic mean of
such
offered quotations (rounded upwards if necessary to the nearest whole
multiple
of 1/16%). If on such Interest Determination Date, fewer than two Reference
Banks provide such offered quotations, One-Month LIBOR for the related
Accrual
Period shall be the higher of (i) One-Month LIBOR as determined on the
previous
Interest Determination Date and (ii) the Reserve Interest Rate. Notwithstanding
the foregoing, if, under the priorities described above, One-Month LIBOR
for an
Interest Determination Date would be based on One-Month LIBOR for the
previous
Interest Determination Date for the third consecutive Interest Determination
Date, the Trust Administrator shall select, after consultation with the
NIMS
Insurer, an alternative comparable index (over which the Trust Administrator
has
no control), used for determining one-month Eurodollar lending rates
that is
calculated and published (or otherwise made available) by an independent
party.
“One-Year
LIBOR” means the average of interbank offered rates for one-year U.S. dollar
deposits in the London market based on quotations of major banks, and
most
recently available as of a day specified in the related mortgage note
as
published by the Western Edition of The
Wall Street Journal.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be
salaried counsel for the Depositor, the Seller, a Servicer or the Master
Servicer, acceptable to the Trustee, if such opinion is delivered to
the
Trustee, or acceptable to the Trust Administrator, if such opinion is
delivered
to the Trust Administrator, except that any opinion of counsel relating
to (a)
the qualification of any Trust REMIC as a REMIC or (b) compliance with
the REMIC
Provisions must be an opinion of Independent counsel.
“Original
Mortgage Loan”: Any of the Mortgage Loans included in REMIC I as of the Closing
Date.
“Originator”:
First NLC Financial Services, LLC, Meritage Mortgage Corporation, Decision
One
Mortgage Company, EquiFirst Corporation, Ownit Mortgage Solutions, Inc.,
First
Street Financial, Inc. and LIME Financial Services, Ltd.
“Originator
Master Agreements”: With respect to (i) First NLC Financial Services, LLC, the
Master Seller’s Purchase, Warranties and Interim Servicing Agreement, dated as
of February 1, 2006 between the Seller and First NLC Financial Services,
LLC, as
amended (ii) Meritage Mortgage Corporation; the Master Seller’s Purchase,
Warranties and Interim Servicing Agreement, dated as of May 1, 2006,
between the
Seller and Meritage Mortgage Corporation, as amended, (iii) Decision
One
Mortgage Company, the Master Seller’s Purchase, Warranties and Interim Servicing
Agreement, dated as of August 1, 2006, between the Seller and Decision
One
Mortgage Company (iv) EquiFirst Corporation, the Master Seller’s Purchase,
Warranties and Interim Servicing Agreement, dated as of May 1, 2006,
between the
Seller and EquiFirst Corporation, as amended, (v) Ownit Mortgage Solutions,
Inc., the Master Seller’s Purchase, Warranties and Interim Servicing Agreement,
dated as of October 1, 2006, between the Seller and Ownit Mortgage Solutions,
Inc. (vi) First Street Financial, Inc., the Master Seller’s Purchase, Warranties
and Interim Servicing Agreement, dated as of August 1, 2004, between
the Seller
and First Street Financial, Inc., as amended and (vii) LIME Financial
Services,
Ltd., the Master Seller’s Purchase, Warranties and Interim Servicing Agreement,
dated as of August 1, 2006 between the Seller and LIME Financial Services,
Ltd.
“Originator
Prepayment Charge Payment Amount”: The amounts payable by the Originator in
respect of any waived Prepayment Charges pursuant to Section 3.01.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (after giving effect to distributions
in
respect of the Principal Remittance Amount on such Distribution Date).
“Overcollateralization
Release Amount”: With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”: With respect to any Distribution Date, (i) 1.45%
of the Cut-off Date Principal Balance of the Mortgage Loans, (ii) on
or after
the Stepdown Date provided that a Trigger Event is not in effect, the
greater of
(x) 2.90% of the aggregate Stated Principal Balance of the Mortgage Loans
as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent
received
or advanced, and unscheduled collections of principal received during
the
related Prepayment Period) and (y) an amount equal to approximately 0.50%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date,
or (iii) on or after the Stepdown Date if a Trigger Event is in effect,
the
Overcollateralization Target Amount for the immediately preceding Distribution
Date. On and after any Distribution Date following the reduction of the
aggregate Certificate Principal Balance of the Class A Certificates and
the
Mezzanine Certificates to zero, the Overcollateralization Target Amount
shall be
zero.
“Overcollateralized
Amount”: For any Distribution Date, the amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
as of
the related Determination Date minus (ii) the aggregate Certificate Principal
Balance of the Class A Certificates, the Mezzanine Certificates and the
Class P
Certificates as of such Distribution Date after giving effect to distributions
to be made on such Distribution Date.
“Ownership
Interest”: As to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the Holder
thereof
and any other interest therein, whether direct or indirect, legal or
beneficial,
as owner or as pledgee.
“Pass-Through
Rate”: With respect to the Class A Certificates and the Mezzanine Certificates
and any Distribution Date, a rate per annum equal to the lesser of (i)
the
related Formula Rate for such Distribution Date and (ii) the Net WAC
Rate for
such Distribution Date.
With
respect to the Class CE Interest and any Distribution Date, a rate per
annum
equal to the percentage equivalent of a fraction, the numerator of which
is (x)
the sum of (i) 100% of the interest on REMIC II Regular Interest II-LTP
and (ii)
interest on the Uncertificated Balance of each REMIC II Regular Interest
listed
in clause (y) at a rate equal to the related REMIC II Remittance Rate
minus the
Marker Rate and the denominator of which is (y) the aggregate Uncertificated
Balance of REMIC II Regular Interests ▇▇-▇▇▇▇, ▇▇-▇▇▇▇, ▇▇-▇▇▇▇, ▇▇-▇▇▇▇,
▇▇-▇▇▇▇, II-LTM1,
II-LTM2, II-LTM3, II-LTM4, II-LTM5, II-LTM6, II-LTM7, II-LTM8, II-LTM9,
II-LTM10, II-LTM11 and II-LTZZ.
With
respect to the Class CE Certificates, 100% of the interest distributable
to the
Class CE Interest, expressed as a per annum rate.
With
respect to the Class SWAP-IO Interest, the Class SWAP-IO Interest shall
not have
a Pass-Through Rate, but interest for such Regular Interest and each
Distribution Date shall be an amount equal to 100% of the amounts distributable
to REMIC II Regular Interest II-LTIO for such Distribution Date.
“Percentage
Interest”: With respect to any Class of Certificates (other than the Residual
Certificates), the undivided percentage ownership in such Class evidenced
by
such Certificate, expressed as a percentage, the numerator of which is
the
initial Certificate Principal Balance or Notional Amount represented
by such
Certificate and the denominator of which is the aggregate initial Certificate
Principal Balance or Notional Amount of all of the Certificates of such
Class.
The Class A Certificates and the Mezzanine Certificates are issuable
only in
minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $25,000 and integral multiples of $1.00 in excess
thereof.
The Class P Certificates are issuable only in Percentage Interests corresponding
to initial Certificate Principal Balances of $20 and integral multiples
thereof.
The Class CE Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Certificate Principal Balances of $10,000
and
integral multiples of $1.00 in excess thereof; provided, however, that
a single
Certificate of each such Class of Certificates may be issued having a
Percentage
Interest corresponding to the remainder of the aggregate initial Certificate
Principal Balance or Notional Amount of such Class or to an otherwise
authorized
denomination for such Class plus such remainder. With respect to any
Residual
Certificate, the undivided percentage ownership in such Class evidenced
by such
Certificate, as set forth on the face of such Certificate. The Residual
Certificates are issuable in Percentage Interests of 20% and multiples
thereof.
“Periodic
Rate Cap”: With respect to each Adjustable-Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage
Note,
which is the maximum amount by which the Mortgage Rate for such Mortgage
Loan
may increase or decrease (without regard to the Maximum Mortgage Rate
or the
Minimum Mortgage Rate) on such Adjustment Date (other than the first
Adjustment
Date) from the Mortgage Rate in effect immediately prior to such Adjustment
Date.
“Permitted
Investments”: Any one or more of the following obligations or securities
acquired at a purchase price of not greater than par, regardless of whether
issued or managed by the Depositor, either Servicer, the Master Servicer,
the
NIMS Insurer, the Trustee, the Trust Administrator or any of their respective
Affiliates or for which an Affiliate of the NIMS Insurer, the Trustee
or the
Trust Administrator serves as an advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment
of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and
credit of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust
company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America
or any
state thereof and subject to supervision and examination by federal
and/or state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution
or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company,
debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in the highest available
rating
category of ▇▇▇▇▇’▇ and S&P and provided that each such investment has an
original maturity of no more than 365 days; and provided further that,
if the
only Rating Agency is S&P and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations
of such
subsidiary are not separately rated, the applicable rating shall be
that of the
bank holding company; and, provided further that, if the original maturity
of
such short-term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating
of such
institution shall be A-1+ in the case of S&P if S&P is the Rating
Agency; and (B) any other demand or time deposit or deposit which is
fully
insured by the FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated “A-1+” or higher by S&P and “A2”
or higher by ▇▇▇▇▇’▇, provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause
(i) above and
must (A) be valued daily at current market prices plus accrued interest,
(B)
pursuant to such valuation, be equal, at all times, to 105% of the
cash
transferred by the Trustee in exchange for such collateral and (C)
be delivered
to the Trustee or, if the Trustee is supplying the collateral, an agent
for the
Trustee, in such a manner as to accomplish perfection of a security
interest in
the collateral by possession of certificated securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any
State thereof
and that are rated by a Rating Agency in its highest long-term unsecured
rating
category at the time of such investment or contractual commitment providing
for
such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date
not more
than 30 days after the date of acquisition thereof) that is rated by
a Rating
Agency in its highest short-term unsecured debt rating available at
the time of
such investment;
(vi) units
of
money market funds, including those managed or advised by the Trust
Administrator or its Affiliates, that have been rated “AAA” by S&P and “Aaa”
by ▇▇▇▇▇’▇; and
(vii) if
previously confirmed in writing to the Trustee and the Trust Administrator
and
consented to by the NIMS Insurer, any other demand, money market or
time
deposit, or any other obligation, security or investment, as may be
acceptable
to the Rating Agencies in writing as a permitted investment of funds
backing
securities having ratings equivalent to its highest initial rating
of the Class
A Certificates;
provided,
that no instrument described hereunder shall evidence either the right
to
receive (a) only interest with respect to the obligations underlying
such
instrument or (b) both principal and interest payments derived from
obligations
underlying such instrument and the interest and principal payments
with respect
to such instrument provide a yield to maturity at par greater than
120% of the
yield to maturity at par of the underlying obligations.
“Permitted
Transferee”: Any Transferee of a Residual Certificate other than a Disqualified
Organization or Non-United States Person.
“Person”:
Any individual, corporation, partnership, limited liability company,
joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
bank
collective investment funds and insurance company general or separate
accounts
in which such plans, accounts or arrangements are invested, that are
subject to
ERISA or Section 4975 of the Code.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Mortgage and Prepayment Period, any prepayment
premium, fee, penalty or charge payable by a Mortgagor in connection
with any
full or partial Principal Prepayment on a Mortgage Loan pursuant to the
terms of
the related Mortgage Note and any Originator Prepayment Charge Payment
Amount
(other than any Servicer Prepayment Charge Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans provided by the Depositor included in REMIC I on such date, attached
hereto as Schedule 2 (including the Prepayment Charge Summary attached
thereto).
The Prepayment Charge Schedule shall set forth the following information
with
respect to each related Mortgage Loan:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Mortgage Loan; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
The
Prepayment Charge Schedule shall be amended from time to time by the
Depositor
in accordance with the provisions of this Agreement and a copy of such
amended
Prepayment Charge Schedule shall be furnished by the Depositor to the
NIMS
Insurer and the related Servicer.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full during the portion
of the
related Prepayment Period commencing on the first day of the calendar
month in
which the Distribution Date occurs and ending on the last day of the
related
Prepayment Period, an amount equal to interest (to the extent received)
at the
applicable Net Mortgage Rate on the amount of such Principal Prepayment
for the
number of days commencing on the first day of the calendar month in which
such
Distribution Date occurs and ending on the date on which such prepayment
is so
applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a voluntary Principal Prepayment in full
during the
portion of the related Prepayment Period commencing on the first day
of the
related Prepayment Period and ending on the last day of the calendar
month
preceding the month in which such Distribution Date occurs, an amount
equal to
interest on the Mortgage Loan at the applicable Net Mortgage Rate on
the amount
of such Principal Prepayment for the number of days commencing on the
date such
Principal Prepayment was applied and ending on the last day of the calendar
month preceding the month in which such Distribution Date occurs.
“Prepayment
Period”: With respect to any Distribution Date and any Principal Prepayment
in
full and for any Mortgage Loan serviced by HomEq, the period commencing
on the
16th day of the calendar month preceding the calendar month in which
such
Distribution Date occurs (or, in the case of the first Distribution Date,
commencing on November 1, 2006) and ending on the 15th day of the calendar
month
in which such Distribution Date occurs. With respect to any Distribution
Date
and any Principal Prepayment in full and for any Mortgage Loan serviced
by ▇▇▇▇▇
Fargo, the period commencing on the 14th day of the calendar month preceding
the
calendar month in which such Distribution Date occurs (or, in the case
of the
first Distribution Date, commencing on November 1, 2006) and ending on
the 13th
day of the calendar month in which such Distribution Date occurs. With
respect
to any Distribution Date and any Principal Prepayment in part and for
all the
Mortgage Loans, the calendar month preceding the month in which the Distribution
Date occurs.
“Present
Value Maximum Probable Exposure”: With
respect to each Distribution
Date, the sum of each Present Value Probable Cash Flow from, and including,
such
Distribution Date to, and including, the Termination Date in such derivative
confirmation.
“Present
Value Probable Cash Flow”: With
respect to each Distribution
Date, the product of (i) the Probable Cash Flow and (ii) the Discount
Factor
applicable for such Distribution Date.
“Principal
Balance”: As to any Mortgage Loan other than a Liquidated Mortgage Loan, and
any
day, the related Cut-off Date Principal Balance, minus all collections
credited
against the Cut-off Date Principal Balance of any such Mortgage Loan.
For
purposes of this definition, a Liquidated Mortgage Loan shall be deemed
to have
a Principal Balance equal to the Principal Balance of the related Mortgage
Loan
as of the final recovery of related Liquidation Proceeds and a Principal
Balance
of zero thereafter. As to any REO Property and any day, the Principal
Balance of
the related Mortgage Loan immediately prior to such Mortgage Loan becoming
REO
Property minus any REO Principal Amortization received with respect thereto
on
or prior to such day.
“Principal
Distribution Amount”: For any Distribution Date will be the sum of (i) the
principal portion of all scheduled monthly payments on the Mortgage Loans
due
during the related Due Period, whether or not received on or prior to
the
related Determination Date; (ii) the principal portion of all proceeds
received
in respect of the repurchase of a Mortgage Loan (or, in the case of a
substitution, certain amounts representing a principal adjustment) during
the
related Prepayment Period; (iii) the principal portion of all related
Net
Liquidation Proceeds, Insurance Proceeds, Subsequent Recoveries and all
full and
partial principal prepayments, received during the related Prepayment
Period, to
the extent applied as recoveries of principal on the Mortgage Loans and
(iv) any
Extra Principal Distribution Amount for such Distribution Date minus
(v) any
Overcollateralization Release Amount for such Distribution Date. In no
event
will the Principal Distribution Amount with respect to any Distribution
Date be
(x) less than zero or (y) greater than the then outstanding aggregate
Certificate Principal Balance of the Class A and Mezzanine Certificates.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount of
scheduled
interest due on any Due Date in any month or months subsequent to the
month of
prepayment.
“Principal
Remittance Amount”: With respect to any Distribution Date, the sum of the
amounts set forth in clauses (i) through (iii) of the definition of Principal
Distribution Amount.
“Probable
Cash Flow”: With
respect to each Distribution
Date, the product of (i) the Notional Balance in such derivative confirmation
for such Distribution Date, divided by 12, and (ii) the excess, if any,
of (a)
the Projected Forward Rate over (b) the cap rate, as defined in the derivative
confirmation attached hereto as Exhibit K or the fixed rate, as defined
in the
derivative confirmation attached hereto as Exhibit M, as applicable.
The
Probable Cash Flow for each Distribution Date that precedes the Significance
Percentage Calculation Date shall equal zero.
“Projected
Forward Rate”: With
respect to each Distribution
Date,
the
product of (i) One Month LIBOR (expressed as a percentage) for the related
Accrual Period made available at Bloomberg Financial Markets, L.P. ("Bloomberg")
by typing in the following keystrokes: FWCV <go>US<go>3<go>
and inputting “1” as Forwards and Intervals, and (ii) the sum of 1 and the
product of (a) a percentage volatility level, linearly interpolated based
on
"Mid USD Cap" volatility levels as obtained from Bloomberg within 15
calendar
days of such Distribution
Date
by
typing the keystrokes: TTCF <go>, 1 <go>, whose maturity date
corresponds to the Termination Date in such derivative confirmation,
(b) a
factor of 1.3, and (c) the square root of the number of days from the
Significance Percentage Calculation Date to the first day of the Accrual
Period
for each related Distribution Date divided by 360.
“Projected
Zero Factor”: With
respect to each Distribution
Date, a fraction, the numerator of which is 1 and the denominator of
which is
the sum of (i) 1 and (ii) the Projected Forward Rate divided by 12.
“Prospectus
Supplement”: That certain Prospectus Supplement dated November 15, 2006 relating
to the public offering of the Class A Certificates and the Mezzanine
Certificates (other than the Class M-11 Certificates).
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 9.01, and as confirmed by an
Officer’s Certificate from the related Servicer to
the
Trustee an amount equal to the sum of (i) 100% of the Stated Principal
Balance
thereof as of the date of purchase (or such other price as provided in
Section 9.01), (ii) in the case of (x) a Mortgage Loan, accrued interest on
such Stated Principal Balance at the applicable Net Mortgage Rate in
effect from
time to time from the Due Date as to which interest was last covered
by a
payment by the Mortgagor or an Advance, which payment or Advance had
as of the
date of purchase been distributed pursuant to Section 4.01, through the end
of the calendar month in which the purchase is to be effected and (y)
an REO
Property, the sum of (1) accrued interest on such Stated Principal Balance
at
the applicable Net Mortgage Rate in effect from time to time from the
Due Date
as to which interest was last covered by a payment by the Mortgagor or
an
Advance by the related Servicer through the end of the calendar month
immediately preceding the calendar month in which such REO Property was
acquired, plus (2) REO Imputed Interest for such REO Property for each
calendar
month commencing with the calendar month in which such REO Property was
acquired
and ending with the calendar month in which such purchase is to be effected,
net
of the total of all net rental income, Insurance Proceeds, Liquidation
Proceeds
and Advances that as of the date of purchase had been distributed as
or to cover
REO Imputed Interest pursuant to Section 4.01, (iii) any unreimbursed
Advances and Servicing Advances (including Nonrecoverable Advances and
Nonrecoverable Servicing Advances) and any unpaid Servicing Fees and
Master
Servicer Fee allocable to such Mortgage Loan or REO Property, (iv) any
amounts
previously withdrawn from the Collection Account pursuant to Section
3.11(a)(ix)
and Section 3.16(b) or the Distribution Account in respect of such Mortgage
Loan
or REO Property, and (v) in the case of a Mortgage Loan required to be
purchased
pursuant to Section 2.03, expenses reasonably incurred or to be incurred by
the related Servicer, the Master Servicer, the NIMS Insurer, the Trust
Administrator or the Trustee in respect of the breach or defect giving
rise to
the purchase obligation including any costs and damages incurred by the
Trust in
connection with any violation with respect to such loan of any predatory
or
abusive lending law. With respect to each Originator and any Mortgage
Loan or
REO Property to be purchased pursuant to or as contemplated by Section 2.03
or 10.01, an amount equal to the amount set forth pursuant to the terms
of the
related Originator Master Agreement.
“Qualified
Substitute Mortgage Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan by the Seller or the Originator, as applicable, pursuant to the
terms of
this Agreement which must, on the date of such substitution, (i) have
an
outstanding Stated Principal Balance, after application of all scheduled
payments of principal and interest due during or prior to the month of
substitution, not in excess of, and not more than 5% less than, the Stated
Principal Balance of the Deleted Mortgage Loan as of the Due Date in
the
calendar month during which the substitution occurs, (ii) have a Mortgage
Rate
not less than (and not more than one percentage point in excess of) the
Mortgage
Rate of the Deleted Mortgage Loan, (iii) with respect to any Adjustable-Rate
Mortgage Loan, have a Maximum Mortgage Rate not less than the Maximum
Mortgage
Rate of the Deleted Mortgage Loan, (iv) with respect to any Adjustable-Rate
Mortgage Loan, have a Minimum Mortgage Rate not less than the Minimum
Mortgage
Rate of the Deleted Mortgage Loan, (v) with respect to any Adjustable-Rate
Mortgage Loan, have a Gross Margin equal to or greater than the Gross
Margin of
the Deleted Mortgage Loan, (vi) with respect to any Adjustable-Rate Mortgage
Loan, have a next Adjustment Date not more than two months later than
the next
Adjustment Date on the Deleted Mortgage Loan, (vii) have a remaining
term to
maturity not greater than (and not more than one year less than) that
of the
Deleted Mortgage Loan, (viii) have the same Due Date as the Due Date
on the
Deleted Mortgage Loan, (ix) have a Loan-to-Value Ratio as of the date
of
substitution equal to or lower than the Loan-to-Value Ratio of the Deleted
Mortgage Loan as of such date, (x) have a risk grading determined by
the
Originator at least equal to the risk grading assigned on the Deleted
Mortgage
Loan, (xi) have a Prepayment Charge provision at least equal to the Prepayment
Charge provision in the Deleted Mortgage Loan, (xii) [reserved] and (xiii)
conform to each representation and warranty set forth in the related
Originator
Master Agreement and related Assignment Agreement applicable to the Deleted
Mortgage Loan. In the event that one or more mortgage loans are substituted
for
one or more Deleted Mortgage Loans, the amounts described in clause (i)
hereof
shall be determined on the basis of aggregate principal balances, the
Mortgage
Rates described in clause (ii) hereof shall be determined on the basis
of
weighted average Mortgage Rates, the terms described in clause (vii)
hereof
shall be determined on the basis of weighted average remaining term to
maturity,
the Loan-to-Value Ratios described in clause (ix) hereof shall be satisfied
as
to each such mortgage loan, the risk gradings described in clause (x)
hereof
shall be satisfied as to each such mortgage loan and, except to the extent
otherwise provided in this sentence, the representations and warranties
described in clause (xiii) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be.
“Rating
Agency” or “Rating Agencies”: ▇▇▇▇▇’▇ and S&P or their successors. If such
agencies or their successors are no longer in existence, “Rating Agencies” shall
be such nationally recognized statistical rating agencies, or other comparable
Persons, designated by the Depositor, notice of which designation shall
be given
to the Trustee and the Master Servicer.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan or any Mortgage Loan charged
off by a Servicer pursuant to this Agreement, the amount of loss realized
equal
to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage
Loan. If
a Servicer receives Subsequent Recoveries with respect to any Mortgage
Loan, the
amount of the Realized Loss with respect to that Mortgage Loan will be
reduced
to the extent such recoveries are applied to principal distributions
on any
Distribution Date.
“Record
Date”: With respect to each Distribution Date and any Book-Entry Certificate,
the Business Day immediately preceding such Distribution Date. With respect
to
each Distribution Date and any other Certificates, including any Definitive
Certificates, the last Business Day of the month immediately preceding
the month
in which such Distribution Date occurs.
“Reference
Banks”: Deutsche Bank AG, ▇▇▇▇▇▇▇’▇ Bank PLC, The Tokyo Mitsubishi Bank and
National Westminster Bank PLC and their successors in interest; provided,
however, that if any of the foregoing banks are not suitable to serve
as a
Reference Bank, then any leading banks selected by the Trust Administrator
(after consultation with the NIMS Insurer) which are engaged in transactions
in
Eurodollar deposits in the international Eurocurrency market (i) with
an
established place of business in London, (ii) not controlling, under
the control
of or under common control with the Depositor or any Affiliate thereof
and (iii)
which have been designated as such by the Trust Administrator.
“Refinanced
Mortgage Loan”: A Mortgage Loan the proceeds of which were not used to purchase
the related Mortgaged Property.
“Regular
Certificate”: Any Class A Certificate, Mezzanine Certificate, Class CE
Certificate or Class P Certificate.
“Regular
Interest”: A “regular interest” in a REMIC within the meaning of
Section 860G(a)(1) of the Code.
“Regulation
AB”: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100 - 229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release
No.
33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005)) or by the staff of
the
Commission, or as may be provided by the Commission or its staff from
time to
time.
“Relevant
Servicing Criteria”: The Servicing Criteria applicable to the various parties,
as set forth on Exhibit O attached hereto. For clarification purposes,
multiple
parties can have responsibility for the same Relevant Servicing
Criteria.
“Relief
Act”: The Servicemembers Civil Relief Act and any similar state
laws.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date and any Mortgage
Loan, any reduction in the amount of interest collectible on such Mortgage
Loan
for the most recently ended calendar month as a result of the application
of the
Relief Act or any similar state or local law.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
“REMIC
I”: The segregated pool of assets subject hereto, constituting the primary
trust
created hereby and to be administered hereunder, with respect to which
a REMIC
election is to be made, consisting of: (i) such Mortgage Loans and Prepayment
Charges as from time to time are subject to this Agreement, together
with the
Mortgage Files relating thereto, and together with all collections thereon
and
proceeds thereof; (ii) any REO Property, together with all collections
thereon
and proceeds thereof; (iii) the Trustee’s rights with respect to the Mortgage
Loans under all insurance policies, required to be maintained pursuant
to this
Agreement and any proceeds thereof; (iv) the Depositor’s rights under the
Originator Master Agreements (including any security interest created
thereby);
and (v) the Collection Account, the Distribution Account (other than
any amounts
representing any Servicer Prepayment Charge Payment Amount or
any
Originator Prepayment Charge Payment Amount)
and any
REO Account, and such assets that are deposited therein from time to
time and
any investments thereof, together with any and all income, proceeds and
payments
with respect thereto. Notwithstanding the foregoing, however, REMIC I
specifically excludes the Net WAC Rate Carryover Reserve Account, the
Interest
Rate Swap Agreement, the Swap Account, the Cap Account, the Interest
Rate Cap
Agreement, the Supplemental Interest Trust, any Servicer Prepayment Charge
Payment Amounts or any Originator Prepayment Charge Payment Amounts,
all
payments and other collections of principal and interest due on the Mortgage
Loans on or before the Cut-off Date and all Prepayment Charges payable
in
connection with Principal Prepayments made before the Cut-off Date.
“REMIC
I
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof,
in an
aggregate amount equal to its initial Uncertificated Principal Balance
as set
forth in the Preliminary Statement hereto. The designations for the respective
REMIC I Regular Interests are set forth in the Preliminary Statement
hereto.
“REMIC
I
Remittance Rate”: With respect to REMIC I Regular Interest I and REMIC I Regular
Interest I-LTP, a per annum rate equal to the weighted average Adjusted
Net
Mortgage Rate of the Mortgage Loans. With respect to each REMIC I Regular
Interest ending with the designation “A”, a per annum rate equal to the weighted
average Adjusted Net Mortgage Rate of the Mortgage Loans multiplied by
2,
subject to a maximum rate of 10.900%. With respect to each REMIC I Regular
Interest ending with the designation “B”, the greater of (x) a per annum rate
equal to the excess, if any, of (i) 2 multiplied by the weighted average
Net
Mortgage Rate of the Mortgage Loans over (ii) 10.900% and (y) 0.00%.
“REMIC
II”: The segregated pool of assets consisting of all of the REMIC I Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC
II
Certificateholders pursuant to Section 2.07, and all amounts deposited
therein,
with respect to which a separate REMIC election is to be made.
“REMIC
II
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount (subject to adjustment based on the actual number of days elapsed
in the
respective Accrual Periods for the indicated Regular Interests for such
Distribution Date) equal to (a) the product of the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties then outstanding and
(ii) the
REMIC II Remittance Rate for REMIC II Regular Interest II-LTAA minus
the Marker
Rate, divided by (b) 12.
“REMIC
II
Overcollateralized Amount”: With respect to any date of determination, (i) 1% of
the aggregate Uncertificated Balance of the REMIC II Regular Interests
(other
than REMIC II Regular Interest II-LTP and REMIC II Regular Interest II-LTIO)
minus (ii) the aggregate Uncertificated Balance of REMIC II Regular Interest
II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular Interest
II-LTA3,
REMIC II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1,
REMIC II
Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II
Regular
Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular
Interest
II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular Interest
II-LTM8,
REMIC II Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10
and REMIC
II Regular Interest II-LTM11, in each case as of such date of
determination.
“REMIC
II
Principal Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to the product of (i) the aggregate Stated Principal Balance
of the
Mortgage Loans and REO Properties then outstanding and (ii) 1 minus a
fraction,
the numerator of which is two times the aggregate Uncertificated Balance
of
REMIC II Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2,
REMIC II
Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II
Regular
Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular
Interest
II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular Interest
II-LTM5,
REMIC II Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7,
REMIC II
Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II
Regular
Interest II-LTM10, REMIC II Regular Interest II-LTM11 and the denominator
of
which is the aggregate Uncertificated Balance of REMIC II Regular Interest
II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II Regular Interest
II-LTA3,
REMIC II Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1,
REMIC II
Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II
Regular
Interest II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular
Interest
II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II Regular Interest
II-LTM8,
REMIC II Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10,
REMIC II
Regular Interest II-LTM11 and REMIC II Regular Interest II-LTZZ.
“REMIC
II
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a “regular interest” in
REMIC II. Each REMIC II Regular Interest shall accrue interest at the
related
REMIC II Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal (other than REMIC II Regular Interest II-LTIO),
subject to the terms and conditions hereof, in an aggregate amount equal
to its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
The REMIC II Regular Interests are as follows: REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTA1, REMIC II Regular Interest
II-LTA2,
REMIC II Regular Interest II-LTA3, REMIC II Regular Interest II-LTA4,
REMIC II
Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II
Regular
Interest II-LTM3, REMIC II Regular Interest II-LTM4, REMIC II Regular
Interest
II-LTM5, REMIC II Regular Interest II-LTM6, REMIC II Regular Interest
II-LTM7,
REMIC II Regular Interest II-LTM8, REMIC II Regular Interest II-LTM9,
REMIC II
Regular Interest II-LTM10, REMIC II Regular Interest II-LTM11, REMIC
II Regular
Interest II-LTP and REMIC II Regular Interest I-TLZZ and REMIC II Regular
Interest II-LTIO. REMIC II Regular Interest II-LTP shall also be entitled
to any
Prepayment Charges received by the Trust Fund.
“REMIC
II
Remittance Rate”: With respect to REMIC II Regular Interest II-LTAA, REMIC II
Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC II
Regular
Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular
Interest
II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3,
REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5,
REMIC II
Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC II
Regular
Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular
Interest
II-LTM10, REMIC II Regular Interest II-LTM11, REMIC II Regular Interest
II-LTZZ
and REMIC II Regular Interest II-LTP, a per annum rate (but not less
than zero)
equal to the weighted average of (v) with respect to REMIC I Regular
Interest I,
and REMIC I Regular Interest I-LTP, the REMIC I Remittance Rate for such
REMIC I
Regular Interest for each such Distribution Date, (w) with respect to
REMIC I
Regular Interests ending with the designation “B”, the weighted average of the
REMIC I Remittance Rates for such REMIC I Regular Interests, weighted
on the
basis of the Uncertificated Principal Balance of such REMIC I Regular
Interests
for each such Distribution Date and (x) with respect to REMIC I Regular
Interests ending with the designation “A”, for each Distribution Date listed
below, the weighted average of the rates listed below for each such REMIC
I
Regular Interest listed below, weighted on the basis of the Uncertificated
Principal Balance of each such REMIC I Regular Interest for each such
Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
2
|
I-2-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
3
|
I-3-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
4
|
I-4-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
5
|
I-5-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
6
|
I-6-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
7
|
I-7-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
8
|
I-8-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
9
|
I-9-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
10
|
I-10-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
11
|
I-11-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
12
|
I-12-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
13
|
I-13-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
14
|
I-14-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
15
|
I-15-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
16
|
I-16-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
17
|
I-17-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
18
|
I-18-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
19
|
I-19-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
20
|
I-20-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
21
|
I-21-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
22
|
I-22-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
23
|
I-23-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
24
|
I-24-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
25
|
I-25-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
26
|
I-26-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
27
|
I-27-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
28
|
I-28-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
29
|
I-29-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
30
|
I-30-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
31
|
I-31-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
32
|
I-32-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
33
|
I-33-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
34
|
I-34-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
35
|
I-35-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
36
|
I-36-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
37
|
I-37-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
38
|
I-38-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
39
|
I-39-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
40
|
I-40-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
41
|
I-41-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
42
|
I-42-A
and I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
43
|
I-43-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
44
|
I-44-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
45
|
I-45-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
46
|
I-46-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-45-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
47
|
I-47-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-46-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
48
|
I-48-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-47-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
49
|
I-49-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-48-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
50
|
I-50-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-49-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
51
|
I-51-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-50-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
52
|
I-52-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
53
|
I-53-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-52-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
54
|
I-54-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-53-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
55
|
I-55-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-54-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
56
|
I-56-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-55-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
57
|
I-57-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-56-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
58
|
I-58-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-57-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
59
|
I-59-A
through I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-58-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
60
|
I-60-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Remittance Rate
|
|
I-1-A
through I-59-A
|
Uncertificated
REMIC 1 Remittance Rate
|
|
|
thereafter
|
I-1-A
through I-60-A
|
Uncertificated
REMIC 1 Remittance Rate
|
With
respect to REMIC II Regular Interest II-LTIO, and (a) the first 60 Distribution
Dates, the excess of (i) the weighted average of the REMIC I Remittance
Rates
for REMIC I Regular Interests ending with the designation “A”, over (ii) 2
multiplied by Swap LIBOR, and (b) thereafter, 0.00%.
“REMIC
II
Required Overcollateralized Amount”: 1.00% of the Overcollateralization Target
Amount.
“REMIC
III”: The segregated pool of assets consisting of all of the REMIC II Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC
III
Certificateholders pursuant to Section 2.07, and all amounts deposited
therein,
with respect to which a separate REMIC election is to be made.
“REMIC
III Certificate”: Any Regular Certificate (other than a Class CE Certificate or
Class P Certificate) or Class R Certificate.
“REMIC
III Certificateholder”: The Holder of any REMIC III Certificate.
“REMIC
III Regular Interest”: Any Class A Certificate, Mezzanine Certificate, the Class
CE Interest, the Class P Interest or the Class Swap-IO Interest.
“REMIC
IV”: The segregated pool of assets consisting of all of the Class CE Interest
conveyed in trust to the Trustee, for the benefit of the Holders of the
Class CE
Certificates and the Class R-X Certificate (in respect of the Class R-IV
Interest), pursuant to Article II hereunder, and all amounts deposited
therein,
with respect to which a separate REMIC election is to be made.
“REMIC
V”: The segregated pool of assets consisting of all of the Class P Interest
conveyed in trust to the Trustee, for the benefit of the Holders of the
Class P
Certificates and the Class R-X Certificate (in respect of the Class R-V
Interest), pursuant to Article II hereunder, and all amounts deposited
therein,
with respect to which a separate REMIC election is to be made.
“REMIC
VI”: The segregated pool of assets consisting of all of the Class Swap-IO
Interest conveyed in trust to the Trustee, for the benefit of the Holders
of the
REMIC VI Regular Interest SWAP-IO and the Class R-X Certificate (in respect
of
the Class R-VI Interest), pursuant to Article II hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is
to be
made.
“REMIC
Provisions”: Provisions of the federal income tax law relating to REMICs, which
appear at Section 860A through 860G of the Code, and related provisions,
and
proposed, temporary and final regulations and published rulings, notices
and
announcements promulgated thereunder, as the foregoing may be in effect
from
time to time.
“REMIC
Regular Interest”: Any REMIC I Regular Interest, REMIC II Regular Interest,
REMIC III Regular Interest or REMIC VI Regular Interest SWAP-IO.
“REMIC
Remittance Rate”: The REMIC I Remittance Rate or the REMIC II Remittance
Rate.
“Remittance
Report”: A report prepared by each Servicer and delivered to the Trust
Administrator and the NIMS Insurer pursuant to Section 4.03.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code as being included in the
term “rents from real property.”
“REO
Account”: The account or accounts maintained, or caused to be maintained, by
each Servicer in respect of an REO Property pursuant to Section
3.23.
“REO
Disposition”: The sale or other disposition of an REO Property on behalf of
REMIC I.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of REMIC I, one month’s interest at the
applicable Net Mortgage Rate on the Stated Principal Balance of such
REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan, if appropriate) as of the close of business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received
in
respect of such REO Property during such calendar month, whether in the
form of
rental income, sale proceeds (including, without limitation, that portion
of the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 9.01 that is allocable to
such REO
Property) or otherwise, net of any portion of such amounts (i) payable
pursuant
to Section 3.23(c) in respect of the proper operation, management and
maintenance of such REO Property or (ii) payable or reimbursable to the
related
Servicer pursuant to Section 3.23(d) for unpaid Servicing Fees or Master
Servicer Fees in respect of the related Mortgage Loan and unreimbursed
Advances
and Servicing Advances in respect of such REO Property or the related
Mortgage
Loan, over (b) the REO Imputed Interest in respect of such REO Property
for such
calendar month.
“REO
Property”: A Mortgaged Property acquired by a Servicer on behalf of REMIC I
through foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23.
“Reportable
Event”: The meaning set forth in Section 4.06(a)(iii).
“Request
for Release”: A request for release in such electronic or other format as shall
be mutually agreed to by the Custodian and the related Servicer, in
substantially the form of Exhibit E attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trust Administrator determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of 1/16%)
of
the one-month U.S. dollar lending rates which New York City banks selected
by
the Trust Administrator are quoting on the relevant Interest Determination
Date
to the principal London offices of leading banks in the London interbank
market
or (ii) in the event that the Trust Administrator can determine no such
arithmetic mean, the lowest one-month U.S. dollar lending rate which
New York
City banks selected by the Trust Administrator are quoting on such Interest
Determination Date to leading European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii)
a
detached two- to four-family dwelling, (iii) a one-family dwelling unit
in a
▇▇▇▇▇▇ ▇▇▇ eligible condominium project, (iv) a manufactured home, or
(v) a
detached one-family dwelling in a planned unit development, none of which
is a
co-operative or mobile home.
“Residual
Certificate”: Any one of the Class R Certificates and the Class R-X
Certificates.
“Residual
Interest”: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
“Responsible
Officer”: When used with respect to the Trustee or the Trust Administrator, the
Chairman or Vice Chairman of the Board of Directors or Trustees, the
Chairman or
Vice Chairman of the Executive or Standing Committee of the Board of
Directors
or Trustees, the President, the Chairman of the Committee on Trust Matters,
any
vice president, any assistant vice president, the Secretary, any assistant
secretary, the Treasurer, any assistant treasurer, the Cashier, any assistant
cashier, any trust officer or assistant trust officer, the Controller
and any
assistant controller or any other officer of the Trustee or the Trust
Administrator, as applicable, customarily performing functions similar
to those
performed by any of the above designated officers, in each case, having
direct
responsibility for the administration of this Agreement, and, with respect
to a
particular matter relating to this Agreement, to whom such matter is
referred
because of such officer’s knowledge of and familiarity with the particular
subject.
“Rolling
Three Month Delinquency Percentage”: With respect to any Distribution Date, the
average of the Delinquency Percentages for each of the three (or one
or two,
with respect to the first or second Distribution Date, respectively)
immediately
preceding months.
“S&P”:
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., or its successor in interest.
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”: The ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the
Commission promulgated thereunder (including any interpretations thereof
by the
Commission’s staff).
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”: The meaning set forth in Section 4.06(a)(iv).
“Securities
Act”: The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Seller”:
UBS Real Estate Securities Inc. or its successor in interest, in its
capacity as
Seller under the Assignment Agreements.
“Senior
Principal Distribution Amount”: The excess of (x) the aggregate Certificate
Principal Balance of the Class A Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 58.50%
and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related
Prepayment
Period) and (B) the excess of the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to scheduled payments of principal due during the related Due Period,
to the
extent received or advanced, and unscheduled collections of principal
received
during the related Prepayment Period) over $3,003,198.96.
“Sequential
Class M Certificates”: the Class M-1 Certificates, the Class M-2 Certificates
and the Class M-3 Certificates.
“Sequential
Class M Principal Distribution Amount”: With respect to any Distribution Date,
the excess of (x) the sum of (i) the aggregate Certificate Principal
Balance of
the Class A Certificates (after taking into account the distribution
of the
Senior Principal Distribution Amount on such Distribution Date), (ii)
the
aggregate Certificate Principal Balance of the Sequential Class M Certificates
over (y) the lesser of (A) the product of (i) 76.60% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of
the related
Due Period (after giving effect to scheduled payments of principal due
during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
and (B)
the excess of the aggregate Stated Principal Balance of the Mortgage
Loans as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent
received
or advanced, and unscheduled collections of principal received during
the
related Prepayment Period) over $3,003,198.96.
“Servicer”:
Either HomEq Servicing, with respect to the HomEq Mortgage Loans or ▇▇▇▇▇
Fargo,
with respect to the ▇▇▇▇▇ Fargo Mortgage Loans, or any successor Servicer
appointed as herein provided, each in its capacity as a Servicer
hereunder.
“Servicer
Event of Default”: One or more of the events described in Section
7.01(a).
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by a Servicer in respect
of any waived Prepayment Charges pursuant to Section 3.01.
“Servicer
Remittance Date”: With respect to any Distribution Date, the 18th
day of
the calendar month in which such Distribution Date occurs or, if such
18th
day is
not a Business Day, the Business Day immediately following.
“Servicing
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Servicing
Advances”: The reasonable “out-of-pocket” costs and expenses incurred by the
related Servicer in connection with a default, delinquency or other
unanticipated event by the related Servicer in the performance of its
servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration, inspection and protection of a Mortgaged Property, (ii)
any
enforcement, administration or judicial proceedings, including foreclosures,
in
respect of a particular Mortgage Loan, including any expenses incurred
in
relation to any such proceedings that result from the Mortgage Loan being
registered on the MERS System, (iii) the management (including reasonable
fees
in connection therewith) and liquidation of any REO Property, (iv) taxes,
assessments, water rates, sewer rents and other charges which are or
may become
a lien upon the Mortgage Property and (v) the performance of its obligations
under Section 3.01, Section 3.09, Section 3.13, Section 3.14, Section
3.16 and
Section 3.23. Servicing Advances shall also include any reasonable
“out-of-pocket” costs and expenses (including legal fees) incurred by the
related Servicer in connection with executing and recording instruments
of
satisfaction, deeds of reconveyance or Assignments of Mortgage in connection
with any foreclosure in respect of any Mortgage Loan to the extent not
recovered
from the related Mortgagor or otherwise payable under this Agreement.
No
Servicer shall be required to make any Servicing Advance in respect of
a
Mortgage Loan or REO Property that, in the good faith business judgment
of the
related Servicer would not be ultimately recoverable from related Insurance
Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as
provided herein. No Servicer shall be required to make any Servicing
Advance
that would be a Nonrecoverable Advance.
“Servicing
Criteria” means the criteria set forth in paragraph (d) of Item 1122 of
Regulation AB, as such may be amended from time to time.
“Servicing
Fee”: With respect to each Mortgage Loan, the amount of the annual fee paid
to
each Servicer, which shall, for a period of one full month, be equal
to
one-twelfth of the product of (a) the Servicing Fee Rate (without regard
to the
words “per annum”) and (b) the Stated Principal Balance of such Mortgage Loan as
of the first day of the related Due Period. Such fee shall be payable
monthly,
computed on the basis of the same principal amount and period respecting
which
any related interest payment on a Mortgage Loan is received. The obligation
for
payment of the Servicing Fee is limited to, and the Servicing Fee is
payable
solely from, the interest portion (including recoveries with respect
to interest
from Liquidation Proceeds) of such Monthly Payment collected by the related
Servicer, or as otherwise provided under Section 3.11.
“Servicing
Fee Rate”: With respect to each Mortgage Loan, the rate of 0.5000% per
annum.
“Servicing
Function Participant” means any Sub-Servicer or Subcontractor of a Servicer,
determined by the Servicer to be participating in the servicing function,
the
Master Servicer, the Custodian or the Trust Administrator, respectively.
For the
avoidance of doubt, the Custodian shall be considered a Servicing Function
Participant without regard to the threshold percentage set forth in instruction
2 of Item 1122 of Regulation AB.
“Servicing
Officer”: Any employee of a Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name appear
on a list
of Servicing Officers furnished by a Servicer to the Master Servicer,
the Trust
Administrator, the Trustee and the Depositor, upon request, as such list
may
from time to time be amended. With respect to the Master Servicer, any
officer
of the Master Servicer involved in or responsible for, the administration
and
master servicing of the Mortgage Loans whose name appears on a list of
master
Servicing Officers furnished by the Master Servicer to the Trustee, the
Trust
Administrator and the Depositor upon request, as such list may from time
to time
be amended.
“Servicing
Transfer Costs”: Shall mean all reasonable out-of-pocket costs and expenses
incurred by the Trustee or the Master Servicer in connection with the
transfer
of servicing from a predecessor servicer, including, without limitation,
any
reasonable costs or expenses associated with the complete transfer of
all
servicing data and the completion, correction or manipulation of such
servicing
data as may be required by the Trustee, the Master Servicer to correct
any
errors or insufficiencies in the servicing data or otherwise to enable
the
Trustee or the Master Servicer to service the Mortgage Loans properly
and
effectively.
“Significance
Percentage”: The percentage equivalent of a fraction, the numerator of which is
the highest of each Present Value Maximum Probable Exposure and the denominator
of which is the aggregate Certificate Principal Balance of the Class
A and
Mezzanine Certificates that are supported by the derivatives (after giving
effect to all distributions on such Distribution
Date
in such
derivative confirmation).
“Significance
Percentage Calculation Date”: Shall mean no later than the respective
Distribution Date.
“Single
Certificate”: With respect to any Class of Certificates (other than the Class P
Certificates and the Residual Certificates), a hypothetical Certificate
of such
Class evidencing a Percentage Interest for such Class corresponding to
an
initial Certificate Principal Balance of $1,000. With respect to the
Class P
Certificates and the Residual Certificates, a hypothetical Certificate
of such
Class evidencing a 100% Percentage Interest in such Class.
“Startup
Day”: With respect to each Trust REMIC, the day designated as such pursuant
to
Section 10.01(b) hereof.
“Stated
Principal Balance”: With respect to any Mortgage Loan: (a) as of any date of
determination up to but not including the Distribution Date on which
the
proceeds, if any, of a Liquidation Event with respect to such Mortgage
Loan
would be distributed, the Cut-off Date Principal Balance of such Mortgage
Loan,
as shown in the Mortgage Loan Schedule, minus the sum of (i) the principal
portion of each Monthly Payment due on a Due Date subsequent to the Cut-off
Date, to the extent received from the Mortgagor or advanced by the related
Servicer and distributed pursuant to Section 4.01 on or before such date of
determination, (ii) all Principal Prepayments received after the Cut-off
Date,
to the extent distributed pursuant to Section 4.01 on or before such date
of determination, (iii) all Liquidation Proceeds and Insurance Proceeds
applied
by the related Servicer as recoveries of principal in accordance with
the
provisions of Section 3.16, to the extent distributed pursuant to
Section 4.01 on or before such date of determination, and (iv) any Realized
Loss incurred with respect thereto as a result of a Deficient Valuation
made
during or prior to the Prepayment Period for the most recent Distribution
Date
coinciding with or preceding such date of determination; and (b) as of
any date
of determination coinciding with or subsequent to the Distribution Date
on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage
Loan
would be distributed, zero. With respect to any REO Property: (a) as
of any date
of determination up to but not including the Distribution Date on which
the
proceeds, if any, of a Liquidation Event with respect to such REO Property
would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO
Property
was acquired on behalf of REMIC I, minus the sum of (i) if such REO Property
was
acquired before the Distribution Date in any calendar month, the principal
portion of the Monthly Payment due on the Due Date in the calendar month
of
acquisition, to the extent advanced by the Servicer and distributed pursuant
to
Section 4.01 on or before such date of determination, and (ii) the
aggregate amount of REO Principal Amortization in respect of such REO
Property
for all previously ended calendar months, to the extent distributed pursuant
to
Section 4.01 on or before such date of determination; and (b) as of any
date of determination coinciding with or subsequent to the Distribution
Date on
which the proceeds, if any, of a Liquidation Event with respect to such
REO
Property would be distributed, zero.
“Stepdown
Date”: The earlier to occur of (i) the first Distribution Date immediately
succeeding the Distribution Date on which the aggregate Certificate Principal
Balance of the Class A Certificates has been reduced to zero and (ii)
the later
to occur of (x) the Distribution Date occurring in December 2009 and
(y) the
first Distribution Date on which the Credit Enhancement Percentage (calculated
for this purpose only after taking into account payments of principal
on the
Mortgage Loans) for the Class A Certificates is equal to or greater than
41.50%.
“Subcontractor”
means any vendor, subcontractor or other Person that is not responsible
for the
overall servicing of Mortgage Loans but performs one or more discrete
functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage
Loans under
the direction or authority of any Servicer (or a Sub-Servicer of any
Servicer),
the Master Servicer, the Custodian or the Trust Administrator.
“Subordinate
Certificates”: The Mezzanine Certificates and the Class CE Certificates.
“Sub-Servicer”
means any Person that services Mortgage Loans on behalf of a Servicer,
and is
responsible for the performance (whether directly or through sub-servicers
or
Subcontractors) of a substantial portion of the material servicing functions
required to be performed under this Agreement, any related Servicing
Agreement
or any sub-servicing agreement that are identified in Item 1122(d) of
Regulation
AB.
“Sub-Servicing
Account”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the related
Servicer.
“Sub-Servicing
Agreement”: The written contract between the related Servicer and a
Sub-Servicer, relating to servicing and administration of certain Mortgage
Loans, which meets the requirements set forth in Section 3.02.
“Subsequent
Recoveries”: As of any Distribution Date, unexpected amounts received by the
Servicer (net of any related expenses permitted to be reimbursed to the
Servicer
or the Master Servicer) specifically related to a Mortgage Loan that
was the
subject of a liquidation or an REO Disposition prior to the related Prepayment
Period that resulted in a Realized Loss.
“Substitution
Adjustment Amount”: As defined in Section 2.03(b).
“Supplemental
Interest Trust”: As defined in Section 4.08(a).
“Supplemental
Interest Trust Trustee”: ▇▇▇▇▇ Fargo Bank, N. A., a national banking
association, not in its individual capacity but solely in its capacity
as
supplemental interest trust trustee, and any successor thereto.
“Swap
Account”: The account or accounts created and maintained pursuant to Section
4.08. The Swap Account must be an Eligible Account.
“Swap
Administration Agreement”: As defined in Section 4.08(b).
“Swap
Administrator”: ▇▇▇▇▇
Fargo,
a
national banking association, or any successor in interest not in its
individual
capacity but solely as swap administrator under the Swap Administration
Agreement, or any successor swap administrator appointed pursuant to
the Swap
Administration Agreement.
“Swap
Collateral Account”: Shall mean the segregated trust account created and
maintained by the Swap Administrator pursuant to Section 4.11
hereof.
“Swap
Credit Support Annex”: The credit support annex dated the closing date between
the Swap Provider and the Supplemental Interest Trust Trustee, which
is annexed
to and forms part of the Interest Rate Swap Agreement.
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due
to a
discrepancy between the Uncertificated Notional Amounts of the Class
SWAP-IO
Interest and the scheduled notional amount pursuant to the Swap Administration
Agreement.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by either Swap Provider
under the Interest Rate Swap Agreement.
“Swap
Provider”: The swap provider under the Interest Rate Swap Agreement. Initially,
the Swap Provider shall be Swiss Re Financial Products Corporation.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect
to which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate
Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined
in the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event
under the
Interest Rate Swap Agreement with respect to which the Swap Provider
is the sole
Affected Party (as defined in the Interest Rate Swap Agreement).
“Swap
Termination Payment”: The payment due under the Interest Rate Swap Agreement
upon the early termination of the Interest Rate Swap Agreement.
“Tax
Returns”: The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be
filed on
behalf of the Trust Fund due to the classification of portions thereof
as REMICs
under the REMIC Provisions, together with any and all other information
reports
or returns that may be required to be furnished to the Certificateholders
or
filed with the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or local
tax
laws.
“Telerate
Page 3750”: The display designated as page “3750” on the Dow ▇▇▇▇▇ Telerate
Capital Markets Report (or such other page as may replace page 3750 on
that
report for the purpose of displaying London interbank offered rates of
major
banks).
“Termination
Price”: As defined in Section 9.01.
“Terminator”:
As defined in Section 9.01.
“Transfer”:
Any direct or indirect transfer, sale, pledge, hypothecation, or other
form of
assignment of any Ownership Interest in a Certificate.
“Transferee”:
Any Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”:
Any Person who is disposing by Transfer of any Ownership Interest in
a
Certificate.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date
on or
after the Stepdown Date if:
the
Rolling-Three Month Delinquency Percentage exceeds 38.55% of the Credit
Enhancement Percentage; or
the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (reduced by the aggregate amount of
Subsequent Recoveries received since the Cut-off Date through the last
day of
the related Due Period) divided by the aggregate Stated Principal Balance
of the
Mortgage Loans as of the Cut-off Date exceeds the applicable percentages
set
forth below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
December
2008 through November 2009
|
1.40%
for the first month, plus an additional 1/12th of 1.70% for
each month
thereafter
|
|
December
2009 through November 2010
|
3.10%
for the first month, plus an additional 1/12th of 1.75% for
each month
thereafter
|
|
December
2010 through November 2011
|
4.85%
for the first month, plus an additional 1/12th of 1.40% for
each month
thereafter
|
|
December
2011 through November 2012
|
6.25%
for the first month, plus an additional 1/12th of 0.75% for
each month
thereafter
|
|
December
2012 and thereafter
|
7.00%
|
“Trust
Administrator”: ▇▇▇▇▇ Fargo, or any successor in interest, or any successor
trust administrator appointed as herein provided.
“Trust
Fund”: Collectively, all of the assets of REMIC I, REMIC II, REMIC III, REMIC
IV, REMIC V and REMIC VI, the Net WAC Rate Carryover Reserve Account,
distributions made to the Trust Administrator by the Swap Administrator
under
the Swap Administration Agreement to the Swap Account and the other assets
conveyed by the Depositor to the Trustee pursuant to Section 2.01.
“Trust
REMIC”: Any of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V and REMIC
VI.
“Trustee”:
U.S. Bank National Association, a national banking association, or its
successor
in interest, or any successor trustee appointed as herein provided.
“Uncertificated
Balance”: The amount of any REMIC Regular Interest (other than REMIC II Regular
Interest II-LTIO) outstanding as of any date of determination. As of
the Closing
Date, the Uncertificated Balance of each REMIC Regular Interest (other
than
REMIC II Regular Interest II-LTIO) shall equal the amount set forth in
the
Preliminary Statement hereto as its initial uncertificated balance. On
each
Distribution Date, the Uncertificated Balance of each REMIC Regular Interest
(other than REMIC II Regular Interest II-LTIO) shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.01 and, if and to the extent
necessary and appropriate, shall be further reduced on such Distribution
Date by
Realized Losses as provided in Section 4.04. The Uncertificated Balance of
REMIC II Regular Interest II-LTZZ shall be increased by interest deferrals
as
provided in Section 4.01(a)(1). The Uncertificated Balance of each REMIC
Regular Interest (other than REMIC II Regular Interest II-LTIO) shall
never be
less than zero. With respect to the Class CE Interest as of any date
of
determination, an amount equal to the excess, if any, of (A) the then
aggregate
Uncertificated Principal Balance of the REMIC II Regular Interests over
(B) the
then aggregate Certificate Principal Balances of the Class A Certificates,
Mezzanine Certificates and the Class P Interest then outstanding.
“Uncertificated
Interest”: With respect to any REMIC Regular Interest for any Distribution Date,
one month’s interest at the REMIC Remittance Rate applicable to such REMIC
Regular Interest for such Distribution Date, accrued on the Uncertificated
Balance or Uncertificated Notional Amount thereof immediately prior to
such
Distribution Date. Uncertificated Interest in respect of any REMIC I
Regular
Interest shall accrue on the basis of a 360-day year consisting of twelve
30-day
months. Uncertificated Interest with respect to each Distribution Date,
as to
any REMIC Regular Interest, shall be reduced by an amount equal to the
sum of
(a) the aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date to the extent not covered by Compensating Interest and (b) the aggregate
amount of any Relief Act Interest Shortfall, if any allocated, in each
case, to
such REMIC Regular Interest pursuant to Section 1.02. In addition,
Uncertificated Interest with respect to each Distribution Date, as to
any REMIC
Regular Interest shall be reduced by Realized Losses, if any, allocated
to such
REMIC Regular Interest pursuant to Section 1.02 and
Section 4.04.
“Uncertificated
Notional Amount”: With respect to REMIC II Regular Interest II-LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal
Balance
of the REMIC I Regular Interests ending with the designation “A” listed below:
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
1
|
I-1-A
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through I-60-A
|
|
10
|
I-10-A
through I-60-A
|
|
11
|
I-11-A
through I-60-A
|
|
12
|
I-12-A
through I-60-A
|
|
13
|
I-13-A
through I-60-A
|
|
14
|
I-14-A
through I-60-A
|
|
15
|
I-15-A
through I-60-A
|
|
16
|
I-16-A
through I-60-A
|
|
17
|
I-17-A
through I-60-A
|
|
18
|
I-18-A
through I-60-A
|
|
19
|
I-19-A
through I-60-A
|
|
20
|
I-20-A
through I-60-A
|
|
21
|
I-21-A
through I-60-A
|
|
22
|
I-22-A
through I-60-A
|
|
23
|
I-23-A
through I-60-A
|
|
24
|
I-24-A
through I-60-A
|
|
25
|
I-25-A
through I-60-A
|
|
26
|
I-26-A
through I-60-A
|
|
27
|
I-27-A
through I-60-A
|
|
28
|
I-28-A
through I-60-A
|
|
29
|
I-29-A
through I-60-A
|
|
30
|
I-30-A
through I-60-A
|
|
31
|
I-31-A
through I-60-A
|
|
32
|
I-32-A
through I-60-A
|
|
33
|
I-33-A
through I-60-A
|
|
34
|
I-34-A
through I-60-A
|
|
35
|
I-35-A
through I-60-A
|
|
36
|
I-36-A
through I-60-A
|
|
37
|
I-37-A
through I-60-A
|
|
38
|
I-38-A
through I-60-A
|
|
39
|
I-39-A
through I-60-A
|
|
40
|
I-40-A
through I-60-A
|
|
41
|
I-41-A
through I-60-A
|
|
42
|
I-42-A
through I-60-A
|
|
43
|
I-43-A
through I-60-A
|
|
44
|
I-44-A
through I-60-A
|
|
45
|
I-45-A
through I-60-A
|
|
46
|
I-46-A
through I-60-A
|
|
47
|
I-47-A
through I-60-A
|
|
48
|
I-48-A
through I-60-A
|
|
49
|
I-49-A
through I-60-A
|
|
50
|
I-50-A
through I-60-A
|
|
51
|
I-51-A
through I-60-A
|
|
52
|
I-52-A
through I-60-A
|
|
53
|
I-53-A
through I-60-A
|
|
54
|
I-54-A
through I-60-A
|
|
55
|
I-55-A
through I-60-A
|
|
56
|
I-56-A
through I-60-A
|
|
57
|
I-57-A
through I-60-A
|
|
58
|
I-58-A
through I-60-A
|
|
59
|
I-59-A
and I-60-A
|
|
60
|
I-60-A
|
|
thereafter
|
$0.00
|
With
respect to the Class Swap-IO Interest and any Distribution Date, an amount
equal
to the Uncertificated Notional Amount of the REMIC II Regular Interest
II-LTIO.
“Uninsured
Cause”: Any cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the hazard
insurance
policies required to be maintained pursuant to Section 3.14.
“United
States Person”: A citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws
of, the
United States, any state thereof or, the District of Columbia (except,
in the
case of a partnership, to the extent provided in regulations) provided
that, for
purposes solely of the restrictions on the transfer of Class R Certificates
and
Class R-X Certificates, no partnership or other entity treated as a partnership
for United States federal income tax purposes shall be treated as a United
States Person unless all persons that own an interest in such partnership
either
directly or through any entity that is not a corporation for United States
federal income tax purposes are required by the applicable operative
agreement
to be United States Persons or an estate whose income is subject to United
States federal income tax regardless of its source, or a trust if a court
within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have
the
authority to control all substantial decisions of the trust. To the extent
prescribed in regulations by the Secretary of the Treasury, a trust which
was in
existence on August 20, 1996 (other than a trust treated as owned by
the grantor
under subpart E of part I of subchapter J of chapter 1 of the Code),
and which
was treated as a United States person on August 20, 1996 may elect to
continue
to be treated as a United States person notwithstanding the previous
sentence.
The term “United States” shall have the meaning set forth in Section 7701
of the Code.
“Unpaid
Interest Shortfall Amount”: With respect to the Class A Certificates and the
Mezzanine Certificates and (i) the first Distribution Date, zero, and
(ii) any
Distribution Date after the first Distribution Date, the amount, if any,
by
which (a) the sum of (1) the Monthly Interest Distributable Amount for
such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such
Class in
respect of interest pursuant to clause (a) of this definition on such
preceding
Distribution Date, plus interest on the amount of interest due but not
paid on
the Certificates of such Class on such preceding Distribution Date, to
the
extent permitted by law, at the Pass-Through Rate for such Class for
the related
Accrual Period.
“Value”:
With respect to any Mortgage Loan, and the related Mortgaged Property,
the
lesser of:
(i)
the
lesser of (a) the value thereof as determined by an appraisal made for
the
Originator at the time of origination of the Mortgage Loan by an appraiser
who
met the minimum requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac, and (b) the
value
thereof as determined by a review appraisal conducted by the Originator
in the
event any such review appraisal determines an appraised value more than
10%
lower than the value thereof, in the case of a Mortgage Loan with a
Loan-to-Value Ratio less than or equal to 80%, or more than 5% lower
than the
value thereof, in the case of a Mortgage Loan with a Loan-to-Value Ratio
greater
than 80%, as determined by the appraisal referred to in clause (i)(a)
above;
and
(ii)
the
purchase price paid for the related Mortgaged Property by the Mortgagor
with the
proceeds of the Mortgage Loan; provided, however, that in the case of
a
Refinanced Mortgage Loan or a Mortgage Loan originated in connection
with a
“lease option purchase” if the “lease option purchase price” was set 12 months
or more prior to origination, such value of the Mortgaged Property is
based
solely upon clause (i) above.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. With respect to any date of determination,
98% of
all Voting Rights will be allocated among the holders of the Class A
Certificates, the Mezzanine Certificates and the Class CE Certificates
in
proportion to the then outstanding Certificate Principal Balances of
their
respective Certificates, 1% of all Voting Rights will be allocated to
the
holders of the Class P Certificates and 1% of all Voting Rights will
be
allocated among the holders of the Residual Certificates. The Voting
Rights
allocated to each Class of Certificate shall be allocated among Holders
of each
such Class in accordance with their respective Percentage Interests as
of the
most recent Record Date.
“▇▇▇▇▇
Fargo”: ▇▇▇▇▇ Fargo Bank, N.A.
“▇▇▇▇▇
Fargo Mortgage Loans”: The Mortgage Loans serviced by ▇▇▇▇▇ Fargo.
| SECTION 1.02. |
Allocation
of Certain Interest Shortfalls.
|
For
purposes of calculating the amount of the Monthly Interest Distributable
Amount
for the Class A Certificates, the Mezzanine Certificates and the Class
CE
Certificates for any Distribution Date, (1) the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by Compensating
Interest Payments by the Servicer or the Master Servicer) and any Relief
Act
Interest Shortfall incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to the Class CE Certificates
based
on, and to the extent of, one month’s interest at the then applicable respective
Pass-Through Rate on the respective Notional Amount of each such Certificate
and, thereafter, among the Class A Certificates and the Mezzanine Certificates
on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal
Balance of
each such Certificate and (2) the aggregate amount of any Realized Losses
and
Net WAC Rate Carryover Amounts incurred for any Distribution Date shall
be
allocated to the Class CE Certificates based on, and to the extent of,
one
month’s interest at the then applicable respective Pass-Through Rate on the
respective Notional Amount of each such Certificate.
For
purposes of calculating the amount of Uncertificated Interest for the
REMIC I
Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls (to the extent not covered by payments
by the
Servicer pursuant to Section 3.24) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to
REMIC I
Regular Interest I and to the REMIC I Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Balances of
each such
REMIC I Regular Interest, and then, to REMIC I Regular Interests ending
with the
designation “A”, pro rata based on, and to the extent of, one month’s interest
at the then applicable respective REMIC I Remittance Rates on the respective
Uncertificated Balances of each such REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Interest for the
REMIC II
Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred
in respect of the Mortgage Loans for any Distribution Date shall be allocated
among REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTA1,
REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3,
REMIC II
Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II
Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest
II-LTM6,
REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8,
REMIC II
Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC II
Regular
Interest II-LTM11 and REMIC II Regular Interest II-LTZZ, pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC II Remittance Rates on the respective Uncertificated Balances of
each such
REMIC II Regular Interest.
| SECTION 1.03. |
Rights
of the NIMS Insurer.
|
Each
of
the rights of the NIMS Insurer set forth in this Agreement shall exist
so long
as (i) the NIMS Insurer has undertaken to guarantee certain payments
of notes
issued pursuant to the Indenture and (ii) the notes issued pursuant to
the
Indenture remain outstanding or the NIMS Insurer is owed amounts in respect
of
its guarantee of payment on such notes; provided, however, the NIMS Insurer
shall not have any rights hereunder (except pursuant to Section 11.01 and
any rights to indemnification hereunder in the case of clause (ii) below)
so
long as (i) the NIMS Insurer has not undertaken to guarantee certain
payments of
notes issued pursuant to the Indenture or (ii) any default has occurred
and is
continuing under the insurance policy issued by the NIMS Insurer with
respect to
such notes.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
| SECTION 2.01. |
Conveyance
of the Mortgage Loans.
|
The
Depositor, concurrently with the execution and delivery hereof, does
hereby
transfer, assign, set over and otherwise convey to the Trustee without
recourse,
for the benefit of the Certificateholders, all the right, title and interest
of
the Depositor, including any security interest therein for the benefit
of the
Depositor, in and to the Mortgage Loans identified on the Mortgage Loan
Schedule, the rights of the Depositor under the Assignment Agreements,
payments
made to the Trust Administrator by the Swap Administrator under the Swap
Administration Agreement and the Swap Account and all other assets included
or
to be included in REMIC I. Such assignment includes all interest and
principal
received by the Depositor or the Servicer on or with respect to the Mortgage
Loans (other than payments of principal and interest due on such Mortgage
Loans
on or before the Cut-off Date). Any payments received on the Mortgage
Loans
after the Cut-off Date, whether in the form of Monthly Payments, Liquidation
Proceeds, Insurance Proceeds, Principal Prepayments, Subsequent Recoveries
or
any other amounts collected on such Mortgage Loan, shall be used first
to
satisfy any amounts due on such Mortgage Loan on or prior to the Cut-off
Date,
to the Person and in the amount certified by the Servicer to the Depositor
on
the Closing Date. The Depositor herewith delivers to the Trustee executed
originals of each Assignment Agreement.
In
connection with such transfer and assignment, the Depositor does hereby
deliver
to, and deposit with, to the Custodian (on behalf of the Trustee), with
respect
the Mortgage Loans, the following documents or instruments with respect
to each
Mortgage Loan so transferred and assigned (a “Mortgage File”):
(i) the
original Mortgage Note, endorsed in blank or in the following form:
“Pay to the
order of U.S. Bank National Association, as Trustee under the applicable
agreement, without recourse,” with all prior and intervening endorsements
showing a complete chain of endorsement from the related Originator
to the
Person so endorsing to the Trustee;
(ii) the
original Mortgage, noting the presence of the MIN of the Mortgage Loan
and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is
a MOM Loan, with evidence of recording thereon, and the original recorded
power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon;
(iii) unless
the Mortgage Loan is registered on the MERS® System, an original Assignment in
blank;
(iv) the
original recorded Assignment or Assignments showing a complete chain
of
assignment from the related Originator to the Person assigning the
Mortgage to
the Trustee (or to MERS, if the Mortgage Loan is registered on the
MERS® System
and noting the presence of the MIN) as contemplated by the immediately
preceding
clause (iii);
(v) the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any; and
(vi) the
original lender’s title insurance policy, together with all endorsements or
riders that were issued with or subsequent to the issuance of such
policy,
insuring the priority of the Mortgage as a first or second lien on
the Mortgaged
Property represented therein as a fee interest vested in the Mortgagor,
or in
the event such original title policy is unavailable, a written commitment
or
uniform binder or preliminary report of title issued by the title insurance
or
escrow company.
With
respect to a maximum of 1.0% of the Mortgage Loans, by outstanding Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, if any
original
Mortgage Note referred to in Section 2.01(i) above cannot be located,
the
obligations of the Depositor to deliver such documents shall be deemed
to be
satisfied upon delivery to the Trustee (or the Custodian on behalf of
the
Trustee) of a photocopy of such Mortgage Note, if available, with a lost
note
affidavit substantially in the form of Exhibit I attached hereto. If
any of the
original Mortgage Notes for which a lost note affidavit was delivered
to the
Trustee (or the Custodian on behalf of the Trustee) with respect to the
related
Mortgage Files, is subsequently located, such original Mortgage Note
shall be
delivered to the Trustee (or the Custodian on behalf of the Trustee)
within
three Business Days.
Except
with respect to any Mortgage Loan for which MERS is identified on the
Mortgage
or on a properly recorded assignment of the Mortgage as the mortgagee
of record,
the Trustee (upon receipt of notice from the Custodian) shall promptly
(within
sixty Business Days following the later of the Closing Date and the date
of
receipt by the Trustee or the Custodian on behalf of the Trustee of the
recording information for a Mortgage, but in no event later than ninety
days
following the Closing Date) enforce the obligations of the related Originator
pursuant to the terms of the related Originator Master Agreement to submit
or
cause to be submitted for recording, at no expense to the Trust Fund,
the
Trustee, the Trust Administrator, the Custodian, the Servicer, the Master
Servicer or the Depositor, in the appropriate public office for real
property
records, each Assignment referred to in Sections 2.01(iii) and (iv) above
and in
connection therewith, the Trustee (upon receipt of notice from the Custodian)
shall enforce the obligation of each Originator pursuant to the terms
of the
related Originator Master Agreement to execute each original Assignment
in the
following form: “U.S. Bank National Association, as Trustee under the applicable
agreement.” In the event that any such Assignment is lost or returned unrecorded
because of a defect therein, the Trustee (upon receipt of notice from
the
Custodian) shall enforce the obligation of each Originator pursuant to
the
related Originator Master Agreement to promptly prepare or cause to be
prepared
a substitute Assignment or cure or cause to be cured such defect, as
the case
may be, and thereafter cause each such Assignment to be duly
recorded.
In
connection with the assignment of any Mortgage Loan registered on the
MERS®
System, the Depositor further agrees that it will cause, within 30 Business
Days
after the Closing Date, the MERS® System to indicate that such Mortgage Loans
have been assigned by the Depositor to the Trustee in accordance with
this
Agreement for the benefit of the Certificateholders by including (or
deleting,
in the case of Mortgage Loans which are repurchased in accordance with
this
Agreement) in such computer files (a) the code in the field which identifies
the
specific Trustee and (b) the code in the field “Pool Field” which identifies the
series of the Certificates issued in connection with such Mortgage Loans.
The
Depositor further agrees that it will not, and will not permit the Servicer
to,
and the Servicer agrees that it will not, alter the codes referenced
in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with
the terms
of this Agreement.
If
any of
the documents referred to in Sections 2.01(ii), (iii) or (iv) has, as
of the
Closing Date, been submitted for recording but either (x) has not been
returned
from the applicable public recording office or (y) has been lost or such
public
recording office has retained the original of such document, the obligations
of
the Depositor to deliver such documents shall be deemed to be satisfied
upon (1)
delivery to the Trustee (or the Custodian on behalf of the Trustee) of
a copy of
each such document certified by the related Originator in the case of
(x) above
or the applicable public recording office in the case of (y) above to
be a true
and complete copy of the original that was submitted for recording and
(2) if
such copy is certified by the related Originator, delivery to the Trustee
(or
the Custodian on behalf of the Trustee) promptly upon receipt thereof
of either
the original or a copy of such document certified by the applicable public
recording office to be a true and complete copy of the original.
If
the
original lender’s title insurance policy was not delivered pursuant to Section
2.01(vi) above, the Depositor shall deliver or cause to be delivered to the
Trustee (or the Custodian on behalf of the Trustee), promptly after receipt
thereof, the original lender’s title insurance policy with a copy thereof to the
Servicer. The Depositor shall deliver or cause to be delivered to the
Trustee
(or the Custodian on behalf of the Trustee) promptly upon receipt thereof
any
other original documents constituting a part of a Mortgage File received
with
respect to any Mortgage Loan, including, but not limited to, any original
documents evidencing an assumption or modification of any Mortgage Loan
with a
copy thereof to the Servicer.
The
Depositor shall deliver or cause each Originator, the Trustee or the
Custodian
on behalf of the Trustee to deliver to the Servicer copies of all trailing
documents required to be included in the servicing file at the same time
the
originals or certified copies thereof are delivered to the Trustee or
the
Custodian, such documents including but not limited to the mortgagee
policy of
title insurance and any mortgage loan documents upon return from the
recording
office. The Servicer shall not be responsible for any custodian fees
or other
costs incurring in obtaining such documents and the Depositor shall cause
the
Servicer to be reimbursed for any such costs it may incur in connection
with
performing its obligations under this Agreement. Subject to Section 6.03(a),
the
Servicer shall have no liability as a result of an inability to service
any
Mortgage Loan due to its failure to receive any documents missing from
the
Mortgage File or servicing file.
All
original documents relating to the Mortgage Loans that are not delivered
to the
Trustee (or the Custodian on behalf of the Trustee) are and shall be
held by or
on behalf of the related Originator, the Seller, the Depositor or the
Servicer,
as the case may be, in trust for the benefit of the Trustee on behalf
of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section 2.01 to be a part of a Mortgage
File, such
document shall be delivered promptly to the Trustee (or the Custodian
on behalf
of the Trustee). Any such original document delivered to or held by the
Depositor that is not required pursuant to the terms of this Section
to be a
part of a Mortgage File, shall be delivered promptly to the
Servicer.
The
Depositor and the Trustee hereto understand and agree that it is not
intended
that any Mortgage Loan be included in the Trust that is a “High-Cost Home Loan”
as defined by the Homeownership and Equity Protection Act of 1994 or
any other
applicable predatory or abusive lending laws.
| SECTION 2.02. |
Acceptance
of REMIC I by Trustee.
|
The
Trustee acknowledges receipt (or receipt by the Custodian on behalf of
the
Trustee), subject to the provisions of Section 2.01 and subject to any
exceptions noted on the exception report described in the next paragraph
below,
of the documents referred to in Section 2.01 (other than such documents
described in Section 2.01(v)) above and all other assets included in the
definition of “REMIC I” under clauses (i), (iii), (iv) and (v) (to the extent of
amounts deposited into the Distribution Account) and declares that it
holds and
will hold such documents and the other documents delivered to it constituting
a
Mortgage File, and that it holds or will hold all such assets and such
other
assets included in the definition of “REMIC I” in trust for the exclusive use
and benefit of all present and future Certificateholders.
The
Trustee (or the Custodian on behalf of the Trustee) agrees to execute
and
deliver to the Depositor and the NIMS Insurer on or prior to the Closing
Date an
acknowledgment of receipt of the original Mortgage Notes (with any exceptions
noted), substantially in the form attached as Exhibit C-3 hereto.
The
Trustee (or the Custodian on behalf of the Trustee) agrees, for the benefit
of
the Certificateholders and the NIMS Insurer, to review each Mortgage
File and,
within 45 days of the Closing Date, to deliver to the Depositor, the
NIMS
Insurer, the Trustee, the Servicer and the Master Servicer a certification
in
substantially the form attached hereto as Exhibit C-1 that, as to each
Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in
full or any Mortgage Loan specifically identified in the exception report
annexed thereto as not being covered by such certification), (i) all
documents
constituting part of such Mortgage File (other than such documents described
in
Section 2.01(v)) required to be delivered to it pursuant to this Agreement
are
in its possession, (ii) such documents have been reviewed by it and appear
regular on their face and relate to such Mortgage Loan and (iii) based
on its
examination and only as to the foregoing, the information set forth in
the
Mortgage Loan Schedule that corresponds to items (1), (3), (12), (15)
and (18)
of the definition of “Mortgage Loan Schedule” accurately reflects information
set forth in the Mortgage File. It is herein acknowledged that, in conducting
such review, the Trustee (or the Custodian on behalf of the Trustee)
is under no
duty or obligation (i) to inspect, review or examine any such documents,
instruments, certificates or other papers to determine whether they are
genuine,
enforceable, or appropriate for the represented purpose or whether they
have
actually been recorded or that they are other than what they purport
to be on
their face or (ii) to determine whether any Mortgage File should include
any of
the documents specified in clause (v) of Section 2.01.
Prior
to
the first anniversary date of this Agreement, the Trustee (or the Custodian
on
behalf of the Trustee) shall deliver to the Depositor, the NIMS Insurer,
the
Trustee, the Servicer and the Master Servicer a final certification in
the form
annexed hereto as Exhibit C-2 evidencing the completeness of the Mortgage
Files,
with any applicable exceptions noted thereon, and the Servicer shall
forward a
copy thereof to any Sub-Servicer.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the
case may
be, the certifications referred to above, the Trustee (or the Custodian
on
behalf of the Trustee) finds any document or documents constituting a
part of a
Mortgage File to be missing or defective in any material respect, at
the
conclusion of its review the Trustee (or the Custodian on behalf of the
Trustee)
shall so notify the Depositor, the NIMS Insurer, the Trustee, the Servicer
and
the Master Servicer. In addition, upon the discovery by the Depositor,
the NIMS
Insurer, the Servicer or the Master Servicer of a breach of any of the
representations and warranties made by an Originator under the related
Originator Master Agreement or the Seller in an Assignment Agreement
in respect
of any Mortgage Loan which materially adversely affects such Mortgage
Loan or
the interests of the related Certificateholders in such Mortgage Loan,
the party
discovering such breach shall give prompt written notice to the other
parties.
The
Trustee (or the Custodian on behalf of the Trustee) shall, at the written
request and expense of any Certificateholder, provide a written report
to the
Trust Administrator for forwarding to such Certificateholder of all related
Mortgage Files released to the Servicer for servicing purposes.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear
of any
liens and encumbrances, from the Depositor to the Trustee in trust for
the
benefit of the Certificateholders and that such property not be part
of the
Depositor’s estate or property of the Depositor in the event of any insolvency
by the Depositor. In the event that such conveyance is deemed to be,
or to be
made as security for, a loan, the parties intend that the Depositor shall
be
deemed to have granted and does hereby grant to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in and to the Mortgage Loans, the related Mortgage Notes and the related
documents, and that this Agreement shall constitute a security agreement
under
applicable law.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge
that
the functions of the Trustee with respect to the custody, acceptance,
inspection, receipt and release of the Mortgage Files and other documentation
pursuant to Section 2.01, 2.02 and 2.03 and preparation and delivery
of the
acknowledgements of receipt and the certifications required under such
sections
shall be performed by the Custodian pursuant to the terms and conditions
of this
Agreement.
| SECTION 2.03. |
Repurchase
or Substitution of Mortgage Loans by an Originator or the
Seller.
|
(a) Upon
receipt of written notice from the Custodian of any materially defective
document in, or that a document is missing from, a Mortgage File or
from the
Depositor, a Servicer, the Master Servicer, the Trust Administrator
or the
Custodian of the breach by an Originator or the Seller of any representation,
warranty or covenant under the related Originator Master Agreement
or Assignment
Agreement, as applicable (including any representation, warranty or
covenant
regarding the Prepayment Charge Schedule), in respect of any Mortgage
Loan that
materially adversely affects the value of such Mortgage Loan or the
interest
therein of the Certificateholders, the Trustee shall promptly notify
such
Originator, the Trust Administrator, the NIMS Insurer, the Seller,
the Servicer
and the Master Servicer of such defect, missing document or breach
and request
that the related Originator or the Seller, as applicable, deliver such
missing
document or cure such defect or breach within 90 days from the date
such
Originator or the Seller, as applicable, was notified of such missing
document,
defect or breach, and if the Trustee receives written notice from the
Depositor,
a Servicer, the Master Servicer, the Trust Administrator or the Custodian,
that
the related Originator or the Seller, as applicable, has not delivered
such
missing document or cured such defect or breach in all material respects
during
such period, the Trustee shall enforce the obligations of such Originator
or the
Seller, as applicable, under the related Master Agreement or Assignment
Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase
Price
The Purchase Price for the repurchased Mortgage Loan shall be remitted
to the
Servicer for deposit in the Collection Account and the Trustee (or
the Custodian
on behalf of the Trustee), upon receipt of written certification from
the
Servicer of such deposit, shall release to the related Originator or
the Seller,
as applicable, the related Mortgage File and the Trustee shall execute
and
deliver such instruments of transfer or assignment, in each case without
recourse, as the related
Originator or
the
Seller, as applicable, shall furnish to it and as shall be necessary
to vest in
such Originator or the Seller, as applicable, any Mortgage Loan released
pursuant hereto. In furtherance of the foregoing, if an Originator
or the
Seller, as applicable, is not a member of MERS and repurchases a Mortgage
Loan
which is registered on the MERS® System, the related Originator or the Seller,
as applicable, at its own expense and without any right of reimbursement,
shall
cause MERS to execute and deliver an assignment of the Mortgage in
recordable
form to transfer the Mortgage from MERS to the related Originator or
the Seller,
as applicable, and shall cause such Mortgage to be removed from registration
on
the MERS® System in accordance with MERS’ rules and regulations. Neither the
Trustee nor the Custodian shall have any further responsibility with
regard to
such Mortgage File. In lieu of repurchasing any such Mortgage Loan
as provided
above, if so provided in the related Originator Master Agreement or
Assignment
Agreement, an Originator or the Seller, as applicable, may cause such
Mortgage
Loan to be removed from REMIC I (in which case it shall become a Deleted
Mortgage Loan) and substitute one or more Qualified Substitute Mortgage
Loans in
the manner and subject to the limitations set forth in Section 2.03(b);
provided, however, the related Originator or the Seller, as applicable,
may not
substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage
Loan
that violates any predatory or abusive lending law. It is understood
and agreed
that the obligation of the Originators or the Seller, as applicable,
to cure or
to repurchase (or to substitute for) any Mortgage Loan as to which
a document is
missing, a material defect in a constituent document exists or as to
which such
a breach has occurred and is continuing shall constitute the sole remedy
respecting such omission, defect or breach available to the Trustee
and the
Certificateholders.
(b) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage
Loans
made pursuant to Section 2.03(a) must be effected prior to the date which
is two years after the Startup Day for REMIC I.
As
to any
Deleted Mortgage Loan for which an Originator or the Seller, as applicable,
substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution
shall be effected by such Originator or the Seller, as applicable,
delivering to
the Trustee (or the Custodian on behalf of the Trustee), for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the
Assignment in blank or to the Trustee (or the Custodian on behalf of
the
Trustee), and such other documents and agreements, with all necessary
endorsements thereon, as are required by Section 2.01, together with
an
Officers’ Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution
Adjustment
Amount (as described below), if any, in connection with such substitution.
The
Trustee (or the Custodian on behalf of the Trustee) shall acknowledge
receipt
for such Qualified Substitute Mortgage Loan or Loans and, within ten
Business
Days thereafter, review such documents as specified in Section 2.02
and deliver
to the Depositor, the NIMS Insurer and the Servicer, with respect to
such
Qualified Substitute Mortgage Loan or Loans, a certification substantially
in
the form attached hereto as Exhibit C-1, with any applicable exceptions
noted
thereon. Within one year of the date of substitution, the Trustee (or
the
Custodian on behalf of the Trustee) shall deliver to the Depositor,
the NIMS
Insurer and the Servicer a certification substantially in the form
of Exhibit
C-2 hereto with respect to such Qualified Substitute Mortgage Loan
or Loans,
with any applicable exceptions noted thereon. Monthly Payments due
with respect
to Qualified Substitute Mortgage Loans in the month of substitution
are not part
of REMIC I and will be retained by the related Originator or the Seller,
as
applicable. For the month of substitution, distributions to Certificateholders
will reflect the Monthly Payment due on such Deleted Mortgage Loan
on or before
the Due Date in the month of substitution, and the related Originator
or the
Seller, as applicable, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The
Depositor
shall give or cause to be given written notice to the Certificateholders
and the
NIMS Insurer that such substitution has taken place, shall amend the
Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan
from the
terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage
Loan
Schedule to the Master Servicer, the Trust Administrator, the Trustee,
the
Custodian, the Servicer and the NIMS Insurer. Upon such substitution,
such
Qualified Substitute Mortgage Loan or Loans shall constitute part of
the
Mortgage Pool and shall be subject in all respects to the terms of
this
Agreement and the related Originator Master Agreement or Assignment
Agreement,
as applicable, including, all applicable representations and warranties
thereof
included therein.
For
any
month in which an Originator or the Seller, as applicable, substitutes
one or
more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage
Loans,
the Servicer will determine the amount (the “Substitution Adjustment Amount”),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage
Loans
exceeds the aggregate of, as to each such Qualified Substitute Mortgage
Loan,
the Stated Principal Balance thereof as of the date of substitution,
together
with one month’s interest on such Stated Principal Balance at the applicable Net
Mortgage Rate, plus all outstanding Advances and Servicing Advances
(including
Nonrecoverable Advances and Nonrecoverable Servicing Advances) related
thereto.
On the date of such substitution, the related Originator or the Seller,
as
applicable, will deliver or cause to be delivered to the Servicer for
deposit in
the Collection Account an amount equal to the Substitution Adjustment
Amount if
any, and the Trustee (or the Custodian on behalf of the Trustee), upon
receipt
of the related Qualified Substitute Mortgage Loan or Loans and written
notice by
the Servicer of such deposit, shall release to the related Originator
or the
Seller, as applicable, the related Mortgage File or Files and the Trustee
shall
execute and deliver such instruments of transfer or assignment, in
each case
without recourse, the related Originator or the Seller, as applicable,
shall
deliver to it and as shall be necessary to vest therein any Deleted
Mortgage
Loan released pursuant hereto.
In
addition, the related Originator or the Seller, as applicable, shall
obtain at
its own expense and deliver to the Trustee, the Trust Administrator
and the NIMS
Insurer an Opinion of Counsel to the effect that such substitution
will not
cause (a) any federal tax to be imposed on any Trust REMIC, including
without
limitation, any federal tax imposed on “prohibited transactions” under Section
860F(a)(1) of the Code or on “contributions after the startup date” under
Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to qualify
as a
REMIC at any time that any Certificate is outstanding.
(c) Upon
discovery by the Depositor, the Servicer, the NIMS Insurer, any Originator,
the
Seller, the Master Servicer or the Trust Administrator that any Mortgage
Loan
does not constitute a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall within
two
Business Days give written notice thereof to the other parties hereto
and the
Trustee shall give written notice to the related Originator and the
Seller. In
connection therewith, the related Originator, the Seller or the Depositor
shall
repurchase or, subject to the limitations set forth in Section 2.03(b),
substitute one or more Qualified Substitute Mortgage Loans for the
affected
Mortgage Loan within 90 days of the earlier of discovery or receipt
of such
notice with respect to such affected Mortgage Loan. Such repurchase
or
substitution shall be made by (i) the related Originator or the Seller,
as the
case may be, if the affected Mortgage Loan’s status as a non-qualified mortgage
is or results from a breach of any representation, warranty or covenant
made by
such Originator or the Seller, as the case may be, under the related
Originator
Master Agreement or Assignment Agreement, or (ii) the Depositor, if
the affected
Mortgage Loan’s status as a non-qualified mortgage is a breach of no
representation or warranty. Any such repurchase or substitution shall
be made in
the same manner as set forth in Section 2.03(a). The Trustee shall
reconvey to
the Depositor, the related Originator or the Seller, as the case may
be, the
Mortgage Loan to be released pursuant hereto in the same manner, and
on the same
terms and conditions, as it would a Mortgage Loan repurchased for breach
of a
representation or warranty.
| SECTION 2.04. |
Reserved.
|
| SECTION 2.05. |
Representations,
Warranties and Covenants of the Servicer and the Master
Servicer.
|
(a) HomEq
hereby represents, warrants and covenants to the Trust Administrator
and the
Trustee, for the benefit of each of the Trustee, the Trust Administrator,
the
Certificateholders and to the Depositor that as of the Closing Date
or as of
such date specifically provided herein:
(i) HomEq
is
duly organized, validly existing, and in good standing under the laws
of the
jurisdiction of its formation and has all licenses necessary to carry
on its
business as now being conducted and is licensed, qualified and in good
standing
in the states where the Mortgaged Property is located if the laws of
such state
require licensing or qualification in order to conduct business of
the type
conducted by HomEq or to ensure the enforceability or validity of each
Mortgage
Loan; HomEq has the power and authority to execute and deliver this
Agreement
and to perform in accordance herewith; the execution, delivery and
performance
of this Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement) by HomEq and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of HomEq, subject
to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar
laws affecting the enforcement of creditors’ rights generally; and all requisite
corporate action has been taken by HomEq to make this Agreement valid
and
binding upon HomEq in accordance with its terms;
(ii) The
consummation of the transactions contemplated by this Agreement are
in the
ordinary course of business of HomEq and will not result in the material
breach
of any term or provision of the charter or by-laws of HomEq or result
in the
breach of any term or provision of, or conflict with or constitute
a default
under or result in the acceleration of any obligation under, any material
agreement, indenture or loan or credit agreement or other instrument
to which
HomEq or its property is subject, or result in the violation of any
law, rule,
regulation, order, judgment or decree to which HomEq or its property
is
subject;
(iii) The
execution and delivery of this Agreement by HomEq and the performance
and
compliance with its obligations and covenants hereunder do not require
the
consent or approval of any governmental authority or, if such consent
or
approval is required, it has been obtained;
(iv) This
Agreement, and all documents and instruments contemplated hereby which
are
executed and delivered by HomEq, constitute and will constitute valid,
legal and
binding obligations of HomEq, enforceable in accordance with their
respective
terms, except as the enforcement thereof may be limited by applicable
bankruptcy
laws and general principles of equity;
(v) HomEq
does not believe, nor does it have any reason or cause to believe,
that it
cannot perform each and every covenant contained in this Agreement;
(vi) There
is
no action, suit, proceeding or investigation pending or, to its knowledge,
threatened against HomEq that, either individually or in the aggregate,
(A) may
result in any change in the business, operations, financial condition,
properties or assets of HomEq that might prohibit or materially and
adversely
affect the performance by HomEq of its obligations under, or validity
or
enforceability of, this Agreement, or (B) may result in any material
impairment
of the right or ability of HomEq to carry on its business substantially
as now
conducted, or (C) would draw into question the validity or enforceability
of
this Agreement or of any action taken or to be taken in connection
with the
obligations of HomEq contemplated herein, or (D) would otherwise be
likely to
impair materially the ability of HomEq to perform under the terms of
this
Agreement;
(vii) No
information, certificate of an officer, statement furnished in writing
or report
delivered to the Trustee or the Trust Administrator by HomEq in connection
with
the transactions contemplated hereby contains any untrue statement
of a material
fact;
(viii) HomEq
covenants that its computer and other systems used in servicing the
Mortgage
Loans operate in a manner such that HomEq can service the Mortgage
Loans in
accordance with the terms of this Agreement;
(ix) HomEq
will not waive any Prepayment Charge unless it is waived in accordance
with the
standard set forth in Section 3.01;
(x) HomEq
has
accurately and fully reported, and will continue to accurately and
fully report
on a monthly basis, its borrower credit files to each of the three
national
credit repositories in a timely manner;
(xi) HomEq
is
a member of MERS in good standing, and will comply in all material
respects with
the rules and procedures of MERS in connection with the servicing of
the
Mortgage Loans that are registered with MERS; and
(xii) HomEq
will transmit full-file credit reporting data for each Mortgage Loan
pursuant to
▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and that for each Mortgage Loan,
HomEq
agrees to report one of the following statuses each month as follows:
new
origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed
or
charged off.
▇▇▇▇▇
Fargo, in its capacity as a Servicer, hereby represents, warrants and
covenants
to the Trust Administrator and the Trustee, for the benefit of each
of the
Trustee, the Trust Administrator, the Certificateholders and to the
Depositor
that as of the Closing Date or as of such date specifically provided
herein:
(xiii) ▇▇▇▇▇
Fargo is a national banking association duly formed, validly existing
and in
good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated
by this
Agreement to be conducted by ▇▇▇▇▇ Fargo;
(xiv) ▇▇▇▇▇
Fargo has the full power and authority to conduct its business as presently
conducted by it and to execute, deliver and perform, and to enter into
and
consummate, all transactions contemplated by this Agreement. ▇▇▇▇▇
Fargo has
duly authorized the execution, delivery and performance of this Agreement,
has
duly executed and delivered this Agreement, and this Agreement, assuming
the due
authorization, execution and delivery thereof by the Trustee, the Depositor,
the
Master Servicer and the Trust Administrator, constitutes a legal, valid
and
binding obligation of ▇▇▇▇▇ Fargo, enforceable against ▇▇▇▇▇ Fargo
in accordance
with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement
of creditors' rights generally, laws affecting the contract obligations
of
insured banks and by general principles of equity;
(xv) The
execution and delivery of this Agreement by ▇▇▇▇▇ Fargo, the servicing
of the
related Mortgage Loans by ▇▇▇▇▇ Fargo hereunder, the consummation by
▇▇▇▇▇ Fargo
of any other of the transactions herein contemplated, and the fulfillment
of or
compliance with the terms hereof are in the ordinary course of business
of ▇▇▇▇▇
Fargo and will not (A) result in a breach of any term or provision
of the
charter of by-laws of ▇▇▇▇▇ Fargo or (B) conflict with, result in a
breach,
violation or acceleration of, or result in a default under, the terms
of any
other material agreement or instrument to which ▇▇▇▇▇ Fargo is a party
or by
which it may be bound, or any statute, order or regulation applicable
to ▇▇▇▇▇
Fargo of any court, regulatory body, administrative agency or governmental
body
having jurisdiction over ▇▇▇▇▇ Fargo; and ▇▇▇▇▇ Fargo is not a party
to, bound
by, or in breach or violation of any indenture or other agreement or
instrument,
or subject to or in violation of any statute, order or regulation of
any court,
regulatory body, administrative agency or governmental body having
jurisdiction
over it, which materially and adversely affects or, to ▇▇▇▇▇ Fargo's
knowledge,
would in the future materially and adversely affect, (x) the ability
of ▇▇▇▇▇
Fargo to perform its obligations under this Agreement, (y) the business,
operations, financial condition, properties or assets of ▇▇▇▇▇ Fargo
taken as a
whole or (z) the legality, validity or enforceability of this
Agreement;
(xvi) ▇▇▇▇▇
Fargo is a HUD approved mortgagee pursuant to Section 203 and Section
211 of the
National Housing Act and is an approved seller/servicer for ▇▇▇▇▇▇
Mae or
▇▇▇▇▇▇▇ Mac in good standing. No event has occurred, including but
not limited
to a change in insurance coverage, that would make ▇▇▇▇▇ Fargo unable
to comply
with HUD eligibility requirements or that would require notification
to
HUD;
(xvii) ▇▇▇▇▇
Fargo does not believe, nor does it have any reason or cause to believe,
that it
cannot perform each and every covenant made by it and contained in
this
Agreement;
(xviii) No
litigation is pending against ▇▇▇▇▇ Fargo that would materially and
adversely
affect the execution, delivery or enforceability of this Agreement
or the
ability of ▇▇▇▇▇ Fargo to service the Mortgage Loans serviced by it
or to
perform any of its other obligations hereunder in accordance with the
terms
hereof
(xix) There
are
no actions or proceedings against, or investigations known to it of,
▇▇▇▇▇ Fargo
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the consummation
of the
transactions contemplated by this Agreement or (C) that might prohibit
or
materially and adversely affect the performance by ▇▇▇▇▇ Fargo of its
obligations under, or the validity or enforceability of, this
Agreement;
(xx) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by ▇▇▇▇▇
Fargo of,
or compliance by ▇▇▇▇▇ Fargo with, this Agreement or the consummation
by it of
the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained
prior to
the Closing Date; and
(xxi) ▇▇▇▇▇
Fargo is a member of MERS in good standing, and will comply in all
material
respects with the rules and procedures of MERS in connection with the
servicing
of the Mortgage Loans that are registered with MERS.
It
is
understood and agreed that the representations, warranties and covenants
set
forth in this Section 2.05 shall survive delivery of the Mortgage Files
to the
Trustee or to the Custodian on its behalf and shall inure to the benefit
of the
Trustee, the Trust Administrator, the Depositor and the Certificateholders.
Upon
discovery by any of the Depositor, the Servicer, the NIMS Insurer,
the Trust
Administrator or the Trustee of a breach of any of the foregoing
representations, warranties and covenants which materially and adversely
affects
the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt
written
notice (but in no event later than two Business Days following such
discovery)
to the Servicer, the NIMS Insurer, the Trustee and the Trust Administrator.
Subject to Section 7.01(a), the obligation of the Servicer set forth
in Section
2.03(c) to cure breaches shall constitute the sole remedies against
the Servicer
available to the Certificateholders, the Depositor, the Trust Administrator
or
the Trustee on behalf of the Certificateholders respecting a breach
of the
representations, warranties and covenants contained in this Section
2.05.
(b) The
Master Servicer hereby represents, warrants and covenants to the Trustee,
for
the benefit of each of the Trustee and the Certificateholders, and
to the
Servicer, the NIMS Insurer and the Depositor that as of the Closing
Date or as
of such date specifically provided herein:
(i) The
Master Servicer is a national banking association duly formed, validly
existing
and in good standing under the laws of the United States of America
and is duly
authorized and qualified to transact any and all business contemplated
by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business
as
presently conducted by it and to execute, deliver and perform, and
to enter into
and consummate, all transactions contemplated by this Agreement. The
Master
Servicer has duly authorized the execution, delivery and performance
of this
Agreement, has duly executed and delivered this Agreement, and this
Agreement,
assuming due authorization, execution and delivery by the Depositor
and the
Trustee, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with its terms except
as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions
herein
contemplated, and the fulfillment of or compliance with the terms hereof
are in
the ordinary course of business of the Master Servicer and will not
(A) result
in a breach of any term or provision of charter and by-laws of the
Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement
or
instrument to which the Master Servicer is a party or by which it may
be bound,
or any statute, order or regulation applicable to the Master Servicer
of any
court, regulatory body, administrative agency or governmental body
having
jurisdiction over the Master Servicer; and the Master Servicer is not
a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or
regulation of
any court, regulatory body, administrative agency or governmental body
having
jurisdiction over it, which materially and adversely affects or, to
the Master
Servicer’s knowledge, would in the future materially and adversely affect, the
ability of the Master Servicer to perform its obligations under this
Agreement;
(iv) The
Master Servicer or an Affiliate thereof is an approved seller/servicer
for
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac in good standing and is a HUD approved mortgagee
pursuant to Section 203 of the National Housing Act;
(v) The
Master Servicer does not believe, nor does it have any reason or cause
to
believe, that it cannot perform each and every covenant made by it
and contained
in this Agreement;
(vi) No
litigation is pending against the Master Servicer that would materially
and
adversely affect the execution, delivery or enforceability of this
Agreement or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof,
(vii) There
are
no actions or proceedings against, or investigations known to it of,
the Master
Servicer before any court, administrative or other tribunal (A) that
might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or
(C) that
might prohibit or materially and adversely affect the performance by
the Master
Servicer of its obligations under, or validity or enforceability of,
this
Agreement; and
(viii) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the
Master
Servicer of, or compliance by the Master Servicer with, this Agreement
or the
consummation of the transactions contemplated by this Agreement, except
for such
consents, approvals, authorizations or orders, if any, that have been
obtained
prior to the Closing Date.
It
is
understood and agreed that the representations, warranties and covenants
set
forth in this Section 2.05 shall survive delivery of the Mortgage Files to
the Trust Administrator, the Trustee or the Custodian, as applicable
and shall
inure to the benefit of the Trustee, the Depositor and the Certificateholders.
Upon discovery by any of the Depositor, the Servicer, the Master Servicer,
the
NIMS Insurer or the Trustee of a breach of any of the foregoing representations,
warranties and covenants which materially and adversely affects the
value of any
Mortgage Loan or the interests therein of the Certificateholders, the
party
discovering such breach shall give prompt written notice (but in no
event later
than two Business Days following such discovery) to other parties to
this
Agreement.
| SECTION 2.06. |
Conveyance
of REMIC Regular Interests and Acceptance of REMIC I, REMIC II, REMIC
III, REMIC IV, REMIC V and REMIC VI by the Trustee; Issuance
of
Certificates.
|
(a) The
Depositor, concurrently with the execution and delivery hereof, does
hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and
to the assets
described in the definition of REMIC I for the benefit of the Holders
of the
REMIC I Regular Interests (which are uncertificated) and the Class
R
Certificates (in respect of the Class R-I Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC I and declares
that
it holds and will hold the same in trust for the exclusive use and
benefit of
the holders of the REMIC I Regular Interests and the Class R Certificates
(in
respect of the Class R-I Interest). The interests evidenced by the
Class R-I
Interest, together with the REMIC I Regular Interests, constitute the
entire
beneficial ownership interest in REMIC I.
(b) The
Depositor, concurrently with the execution and delivery hereof, does
hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and
to the REMIC
I Regular Interests (which are uncertificated) for the benefit of the
Holders of
the REMIC II Regular Interests (which are uncertificated) and the Class
R
Certificates (in respect of the Class R-II Interest). The Trustee acknowledges
receipt of the REMIC I Regular Interests and declares that it holds
and will
hold the same in trust for the exclusive use and benefit of the Holders
of the
REMIC II Regular Interests and the Class R Certificates (in respect
of the Class
R-II Interest). The interests evidenced by the Class R-II Interest,
together
with the REMIC II Regular Interests, constitute the entire beneficial
ownership
interest in REMIC II.
(c) The
Depositor, concurrently with the execution and delivery hereof, does
hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and
to the REMIC
II Regular Interests (which are uncertificated) for the benefit of
the Holders
of the REMIC III Regular Interests and the Class R Certificates (in
respect of
the Class R-III Interest). The Trustee acknowledges receipt of the
REMIC II
Regular Interests and declares that it holds and will hold the same
in trust for
the exclusive use and benefit of the Holders of the REMIC III Regular
Interests
and the Class R Certificates (in respect of the Class R-III Interest).
The
interests evidenced by the Class R-III Interest, together with the
Regular
Certificates (other than the Class CE Certificates and the Class P
Certificates), the Class CE Interest, the Class P Interest and the
Class Swap-IO
Interest constitute the entire beneficial ownership interest in REMIC
III.
(d) The
Depositor, concurrently with the execution and delivery hereof, does
hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and
to the Class
CE Interest (which is uncertificated) for the benefit of the Holders
of the
Class CE Certificates and the Class R-X Certificates (in respect of
the Class
R-IV Interest). The Trustee acknowledges receipt of the Class CE Interest
and
declares that it holds and will hold the same in trust for the exclusive
use and
benefit of the Holders of the Class CE Certificates and the Class R-X
Certificates (in respect of the Class R-IV Interest). The interests
evidenced by
the Class R-IV Interest, together with the Class CE Certificates, constitute
the
entire beneficial ownership interest in REMIC IV.
(e) The
Depositor, concurrently with the execution and delivery hereof, does
hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and
to the Class
P Interest (which is uncertificated) for the benefit of the Holders
of the Class
P Certificates and the Class R-X Certificates (in respect of the Class
R-V
Interest). The Trustee acknowledges receipt of the Class P Interest
and declares
that it holds and will hold the same in trust for the exclusive use
and benefit
of the Holders of the Class P Certificates and the Class R-X Certificates
(in
respect of the Class R-V Interest). The interests evidenced by the
Class R-V
Interest, together with the Class P Certificates, constitute the entire
beneficial ownership interest in REMIC V.
(f) The
Depositor, concurrently with the execution and delivery hereof, does
hereby
transfer, assign, set over and otherwise convey in trust to the Trustee
without
recourse all the right, title and interest of the Depositor in and
to the Class
Swap-IO Interest (which is uncertificated) for the benefit of the Holders
of
REMIC VI Regular Interest SWAP-IO and the Class R-X Certificates (in
respect of
the Class R-VI Interest). The Trustee acknowledges receipt of the Class
Swap-IO
Interest and declares that it holds and shall hold the same in trust
for the
exclusive use and benefit of the Holders of REMIC VI Regular Interest
SWAP-IO
and the Class R-X Certificates (in respect of the Class R-VI Interest). The
interests evidenced by the Class R-VI Interest, together with REMIC
VI Regular
Interest SWAP-IO, constitute the entire beneficial ownership interest
in REMIC
VI.
| SECTION 2.07. |
Issuance
of Class R Certificates and Class R-X
Certificates.
|
(a) The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and
REMIC II Regular Interests and, concurrently therewith and in exchange
therefor,
pursuant to the written request of the Depositor executed by an officer
of the
Depositor, the Trustee has executed, authenticated and delivered to
or upon the
order of the Depositor, the Class R Certificates in authorized denominations.
The interests evidenced by the Class R Certificates (in respect of
the Class
R-III Interest), together with the REMIC III Certificates, the Class
CE
Interest, the Class P Interest and the Class Swap-IO Interest, constitute
the
entire beneficial ownership interest in REMIC III.
(b) The
Trustee acknowledges the assignment to it of the Class CE Interest,
the Class P
Interest and the Class Swap-IO Interest, concurrently therewith and
in exchange
therefor, pursuant to the written request of the Depositor executed
by an
officer of the Depositor, the Trustee has executed, authenticated and
delivered
to or upon the order of the Depositor, the Class R-X Certificates in
authorized
denominations. The interests evidenced by the Class R-X Certificates,
together
with the Class CE Certificates, the Class P Certificates and the REMIC
VI
Regular Interest SWAP-IO constitute the entire beneficial ownership
interest in
REMIC IV, REMIC V and REMIC VI.
| SECTION 2.08. |
Authorization
to Enter into Interest Rate Cap Agreement and Interest Rate
Swap
Agreement.
|
(a) The
Trust
Administrator is hereby directed to execute and deliver the Interest
Rate Cap
Agreement on behalf of Party B (as defined therein) and to exercise
the rights,
perform the obligations, and make the representations of Party B thereunder,
solely in its capacity as Trust Administrator on behalf of Party B
(as defined
therein) and not in its individual capacity. The Servicer, the Depositor
and the
Certificateholders (by acceptance of their Certificates) acknowledge
and agree
that (i) the Trust Administrator shall execute and deliver the Interest
Rate Cap
Agreement on behalf of Party B (as defined therein), (ii) the Trust
Administrator shall exercise the rights, perform the obligations, and
make the
representations of Party B thereunder, solely in its capacity as Trust
Administrator on behalf of Party B, as defined therein) and not in
its
individual capacity, and (iii) the Trust Administrator shall be entitled
to
exercise the rights and is obligated to perform the obligations of
Party B under
the Interest Rate Cap Agreement. Every provision of this Agreement
relating to
the conduct or affecting the liability of or affording protection to
the Trust
Administrator shall apply to the Trust Administrator’s execution of the Interest
Rate Cap Agreement, and the performance of its duties and satisfaction
of its
obligations thereunder.
(b) The
Trust
Administrator (in its capacity as Supplemental Interest Trust Trustee)
is hereby
directed to execute and deliver the Interest Rate Swap Agreement on
behalf of
Party B (as defined therein) and to exercise the rights, perform the
obligations, and make the representations of Party B thereunder, solely
in its
capacity as Supplemental Interest Trust Trustee on behalf of Party
B (as defined
therein) and not in its individual capacity. The Servicer, the Depositor
and the
Certificateholders (by acceptance of their Certificates) acknowledge
and agree
that (i) the Trust Administrator (in its capacity as Supplemental Interest
Trust
Trustee) shall execute and deliver the Interest Rate Swap Agreement
on behalf of
Party B (as defined therein), (ii) the Trust Administrator (in its
capacity as
Supplemental Interest Trust Trustee) shall exercise the rights, perform
the
obligations, and make the representations of Party B thereunder, solely
in its
capacity as Supplemental Interest Trust Trustee on behalf of Party
B as defined
therein) and not in its individual capacity, and (iii) the Trust Administrator
(in its capacity as Supplemental Interest Trust Trustee) shall be entitled
to
exercise the rights and is obligated to perform the obligations of
Party B under
the Interest Rate Swap Agreement. Every provision of this Agreement
relating to
the conduct or affecting the liability of or affording protection to
the Trust
Administrator shall apply to the Trust Administrator’s execution (in its
capacity as Supplemental Interest Trust Trustee) of the Interest Rate
Swap
Agreement, and the performance of its duties and satisfaction of its
obligations
thereunder.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
| SECTION 3.01. |
Servicer
to Act as Servicer.
|
Unless
otherwise specified, all references to actions to be taken or previously
taken
by “the Servicer” under this Article III or any other provision of this
Agreement with respect to a Mortgage Loan or Mortgage Loans or with
respect to
an REO Property or REO Properties shall be to actions to be taken or
previously
taken by the related Servicer with respect to a Mortgage Loan or Mortgage
Loans
serviced thereby or with respect to an REO Property or REO Properties
administered thereby. Furthermore, unless otherwise specified, all
references to
actions to be taken or previously taken by “the Servicer” under this Article III
or any other provision of this Agreement with respect to “the Collection
Account” or “the Servicing Account” shall be to actions to be taken or
previously taken by each Servicer with respect to the Collection Account
or the
Escrow Account to be established and maintained thereby. Consistent
with the
foregoing, but only insofar as the context so permits, this Article
III is to be
read with respect to each Servicer as if such Servicer alone was servicing
and
administering its respective Mortgage Loans hereunder.
The
Servicer shall service and administer the Mortgage Loans on behalf
of the Trust
Fund and in the best interests of and for the benefit of the Certificateholders
(as determined by the Servicer in its reasonable judgment) in accordance
with
the terms of this Agreement and the Mortgage Loans and, to the extent
consistent
with such terms, in the same manner in which it services and administers
similar
mortgage loans for its own portfolio, giving due consideration to customary
and
usual standards of practice of mortgage lenders and loan servicers
administering
similar mortgage loans but without regard to:
(i) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of
the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any
Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make Advances or Servicing Advances; or
(iv) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer (a) shall seek to
maximize
the timely and complete recovery of principal and interest on the Mortgage
Notes
and (b) may waive (or permit a Sub-Servicer to waive) a Prepayment
Charge only
under the following circumstances: (i) such waiver is standard and
customary in
servicing similar Mortgage Loans and such waiver relates to a default
or a
reasonably foreseeable default and would, in the reasonable judgment
of the
Servicer, maximize recovery of total proceeds taking into account the
value of
such Prepayment Charge and the related Mortgage Loan, (ii) the collection
of
such Prepayment Charge would be in violation of applicable laws, (iii)
the
amount of the Prepayment Charge set forth on the Prepayment Charge
Schedule is
not consistent with the related Mortgage Note or is otherwise unenforceable,
(iv) the collection of such Prepayment Charge would be considered “predatory”
pursuant to written guidance published or issued by any applicable
federal,
state or local regulatory authority acting in its official capacity
and having
jurisdiction over such matters or (v) the Servicer has not received
information
and documentation sufficient to confirm the existence or amount of
such
Prepayment Charge. If a Prepayment Charge is waived as permitted by
meeting the
standard described in clauses (ii), (iii), (iv) or (v) above, then
the Trustee
(upon receipt of written notice from the Servicer that such waiver
has occurred)
shall enforce the obligation of the related Originator to pay the amount
of such
waived Prepayment Charge to the Trust Administrator for deposit in
the
Distribution Account for the benefit of the Holders of the Class P
Certificates
(the “Originator Prepayment Charge Payment Amount”). If a Prepayment Charge is
waived other than in accordance with (i), (ii), (iii), (iv) or (v)
above, the
Servicer shall pay the amount of such waived Prepayment Charge to the
Trust
Administrator for deposit in the Distribution Account for the benefit
of the
Holders of the Class P Certificates (the “Servicer Prepayment Charge Payment
Amount”).
To
the
extent consistent with the foregoing, the Servicer shall seek to maximize
the
timely and complete recovery of principal and interest on the Mortgage
Notes.
Subject only to the above-described servicing standards and the terms
of this
Agreement and of the Mortgage Loans, the Servicer shall have full power
and
authority, acting alone or through Sub-Servicers as provided in Section
3.02, to
do or cause to be done any and all things in connection with such servicing
and
administration which it may deem necessary or desirable. Without limiting
the
generality of the foregoing, the Servicer in its own name or in the
name of a
Sub-Servicer or in the name of the Trustee, solely in its capacity
as Trustee of
the Trust, is hereby authorized and empowered by the Trustee when the
Servicer
believes it appropriate in its best judgment in accordance with the
servicing
standards set forth above, to execute and deliver, on behalf of the
Certificateholders and the Trustee, any and all instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans and the
Mortgaged
Properties and to institute foreclosure proceedings or obtain a deed-in-lieu
of
foreclosure so as to convert the ownership of such properties, and
to hold or
cause to be held title to such properties, on behalf of the Trustee
and
Certificateholders. The Servicer shall service and administer the Mortgage
Loans
in accordance with applicable state and federal law and shall provide
to the
Mortgagors any reports required to be provided to them thereby. The
Servicer
shall also comply in the performance of this Agreement with all reasonable
rules
and requirements of each insurer under any standard hazard insurance
policy.
Subject to Section 3.17, within fifteen (15) days of the Closing Date,
the
Trustee shall execute, at the written request of the Servicer, and
furnish to
the Servicer and any Sub-Servicer any special or limited powers of
attorney and
other documents necessary or appropriate to enable the Servicer or
any
Sub-Servicer to carry out their servicing and administrative duties
hereunder;
provided,
such
limited powers of attorney or other documents shall be prepared by
the Servicer
and submitted to the Trustee for execution. The Trustee shall not be
liable for
the actions of the Servicer or any Sub-Servicers under such powers
of
attorney.
The
Servicer further is authorized and empowered by the Trustee, on behalf
of the
Certificateholders and the Trustee, in its own name or in the name
of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may
be,
believes it is appropriate in its best judgment to register any Mortgage
Loan on
the MERS® System, or cause the removal from the registration of any Mortgage
Loan on the MERS® System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment
and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and
its
successors and assigns. Any reasonable expenses incurred in connection
with the
actions described in the preceding sentence or as a result of MERS
discontinuing
or becoming unable to continue operations in connection with the MERS® System,
shall be reimbursable to the Servicer by withdrawal from the Collection
Account
pursuant to Section 3.11.
Subject
to Section 3.09 hereof, in accordance with the standards of the preceding
paragraph, the Servicer, on escrowed accounts, shall advance or cause
to be
advanced funds as necessary for the purpose of effecting the payment
of taxes
and assessments on the Mortgaged Properties, which advances shall be
Servicing
Advances reimbursable in the first instance from related collections
from the
Mortgagors pursuant to Section 3.09, and further as provided in Section
3.11.
Any cost incurred by the Servicer or by Sub-Servicers in effecting
the payment
of taxes and assessments on a Mortgaged Property shall not, for the
purpose of
calculating distributions to Certificateholders, be added to the unpaid
Stated
Principal Balance of the related Mortgage Loan, notwithstanding that
the terms
of such Mortgage Loan so permit, provided, however, that the Servicer
may
capitalize the amount of any Servicing Advances incurred pursuant to
this
Section 3.01 in connection with the modification of a Mortgage Loan,
subject to
Section 3.07.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make
any future
advances with respect to a Mortgage Loan (except as provided in Section
4.03)
and the Servicer shall not (i) permit any modification with respect
to any
Mortgage Loan (except with respect to a Mortgage Loan that is in default
or, in
the judgment of the Servicer, such default is reaonsably foreseeable)
that would
change the Mortgage Rate, reduce or increase the Stated Principal Balance
(except for reductions resulting from actual payments of principal)
or change
the final maturity date on such Mortgage Loan (unless, as provided
in Section
3.07, the Mortgagor is in default with respect to the Mortgage Loan
or such
default is, in the judgment of the Servicer, reasonably foreseeable)
or (ii)
permit any modification, waiver or amendment of any term of any Mortgage
Loan
that would both (A) effect an exchange or reissuance of such Mortgage
Loan under
Section 1001 of the Code (or Treasury regulations promulgated thereunder)
and
(B) cause any REMIC created hereunder to fail to qualify as a REMIC
under the
Code or the imposition of any tax on “prohibited transactions” or “contributions
after the startup date” under the REMIC Provisions.
Notwithstanding
anything in this Agreement to the contrary and notwithstanding its
ability to do
so pursuant to the terms of the related mortgage note, the Servicer
shall not be
required to enforce any provision in any mortgage note the enforcement
of which
would violate federal, state or local laws or ordinances designed to
discourage
predatory lending practices.
| SECTION 3.02. |
Sub-Servicing
Agreements Between Servicer and
Sub-Servicers.
|
(a) The
Servicer may enter into Sub-Servicing Agreements with Sub-Servicers,
which may
be Affiliates of the Servicer, for the servicing and administration
of the
Mortgage Loans; provided, however, that (i) such sub-servicing arrangement
and
the terms of the related Sub-Servicing Agreement must provide for the
servicing
of the Mortgage Loans in a manner consistent with the servicing arrangement
contemplated hereunder and (ii) the NIMS Insurer shall have consented
to such
Sub-Servicing Agreement. The Trustee is hereby authorized to acknowledge,
at the
request of the Servicer, any Sub-Servicing Agreement that the Servicer
certifies
in writing to the Trustee meets the requirements applicable to Sub-Servicing
Agreements set forth in this Agreement and that is otherwise permitted
under
this Agreement..
Each
Sub-Servicer shall be (i) authorized to transact business in the state
or states
where the related Mortgaged Properties it is to service are situated,
if and to
the extent required by applicable law to enable the Sub-Servicer to
perform its
obligations hereunder and under the Sub-Servicing Agreement and (ii)
a ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇ Mae approved mortgage servicer. Each Sub-Servicing Agreement
must
impose on the Sub-Servicer requirements conforming to the provisions
set forth
in Section 3.08, 3.20, 3.21 and 4.06 and provide for servicing of the
Mortgage
Loans consistent with the terms of this Agreement. The Servicer will
examine
each Sub-Servicing Agreement and will be familiar with the terms thereof.
The
terms of any Sub-Servicing Agreement will not be inconsistent with
any of the
provisions of this Agreement. Any material variations in any Sub-Servicing
Agreements from the provisions set forth in Section 3.08 relating to
insurance
or priority requirements of Sub-Servicing Accounts, or credits and
charges to
the Sub- Servicing Accounts or the timing and amount of remittances
by the
Sub-Servicers to the Servicer, Section 3.20 or Section 3.21, are conclusively
deemed to be inconsistent with this Agreement and therefore prohibited.
The
Servicer shall deliver to the Trust Administrator, the Master Servicer,
the NIMS
Insurer and the Trustee copies of all Sub-Servicing Agreements, and
any
amendments or modifications thereof, promptly upon the Servicer’s execution and
delivery of such instruments.
(b) As
part
of its servicing activities hereunder, the Servicer, for the benefit
of the
Trustee and the Certificateholders, shall enforce the obligations of
each
Sub-Servicer under the related Sub-Servicing Agreement, including,
without
limitation, any obligation to make advances in respect of delinquent
payments as
required by a Sub-Servicing Agreement. Such enforcement, including,
without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements, and the pursuit of other appropriate remedies, shall be
in such form
and carried out to such an extent and at such time as the Servicer,
in its good
faith business judgment, would require were it the owner of the related
Mortgage
Loans. The Servicer shall pay the costs of such enforcement at its
own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting
from
such enforcement, to the extent, if any, that such recovery exceeds
all amounts
due in respect of the related Mortgage Loans, or (ii) from a specific
recovery
of costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
| SECTION 3.03. |
Successor
Sub-Servicers.
|
The
Servicer, with the consent of the NIMS Insurer, shall be entitled to
terminate
any Sub-Servicing Agreement and the rights and obligations of any Sub-Servicer
pursuant to any Sub-Servicing Agreement in accordance with the terms
and
conditions of such Sub-Servicing Agreement. In the event of termination
of any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall
be assumed
simultaneously by the Servicer without any act or deed on the part
of such
Sub-Servicer or the Servicer, and the Servicer either shall service
directly the
related Mortgage Loans or shall enter into a Sub-Servicing Agreement
with a
successor Sub-Servicer which qualifies under Section 3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement
may be
immediately terminated by the Master Servicer or the Trustee (if the
Master
Servicer or the Trustee is acting as Servicer) without fee, in accordance
with
the terms of this Agreement, in the event that the Servicer (or the
Master
Servicer, if it is then acting as Servicer) shall, for any reason,
no longer be
the Servicer (including termination due to a Servicer Event of
Default).
| SECTION 3.04. |
Liability
of the Servicer.
|
Notwithstanding
any Sub-Servicing Agreement, any of the provisions of this Agreement
relating to
agreements or arrangements between the Servicer and a Sub-Servicer
or reference
to actions taken through a Sub-Servicer or otherwise, the Servicer
shall remain
obligated and primarily liable to the Trustee and the Certificateholders
for the
servicing and administering of the Mortgage Loans in accordance with
the
provisions of Section 3.01 without diminution of such obligation or
liability by
virtue of such Sub-Servicing Agreements or arrangements or by virtue
of
indemnification from the Sub-Servicer and to the same extent and under
the same
terms and conditions as if the Servicer alone were servicing and administering
the Mortgage Loans. The Servicer shall be entitled to enter into any
agreement
with a Sub- Servicer for indemnification of the Servicer by such Sub-Servicer
and nothing contained in this Agreement shall be deemed to limit or
modify such
indemnification.
| SECTION 3.05. |
No
Contractual Relationship Between Sub-Servicers and the Trustee,
the Trust
Administrator, the NIMS Insurer or
Certificateholders.
|
Any
Sub-Servicing Agreement that may be entered into and any transactions
or
services relating to the Mortgage Loans involving a Sub-Servicer in
its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer
alone,
and the Trustee, the Master Servicer, the Trust Administrator, the
NIMS Insurer
and the Certificateholders shall not be deemed parties thereto and
shall have no
claims, rights, obligations, duties or liabilities with respect to
the
Sub-Servicer except as set forth in Section 3.06. The Servicer shall
be solely
liable for all fees owed by it to any Sub-Servicer, irrespective of
whether the
Servicer’s compensation pursuant to this Agreement is sufficient to pay such
fees.
| SECTION 3.06. |
Assumption
or Termination of Sub-Servicing Agreements by Master
Servicer.
|
In
the
event the Servicer shall for any reason no longer be the Servicer (including
by
reason of the occurrence of a Servicer Event of Default), the Master
Servicer
or, if the Master Servicer is the Servicer, the Trustee (or the successor
servicer appointed pursuant to Section 7.02), as applicable, shall
thereupon
assume all of the rights and obligations of the Servicer under each
Sub-Servicing Agreement that the Servicer may have entered into, unless
the
Master Servicer or the Trustee, as applicable, elects to terminate
any
Sub-Servicing Agreement in accordance with its terms as provided in
Section
3.03. Upon such assumption, the Master Servicer or the Trustee (or
the successor
servicer appointed pursuant to Section 7.02), as applicable, shall
be deemed,
subject to Section 3.03, to have assumed all of the departing Servicer’s
interest therein and to have replaced the departing Servicer as a party
to each
Sub-Servicing Agreement to the same extent as if each Sub-Servicing
Agreement
had been assigned to the assuming party, except that (i) the departing
Servicer
shall not thereby be relieved of any liability or obligations under
any
Sub-Servicing Agreement that arose before it ceased to be the Servicer
and (ii)
none of the Trust Administrator nor any successor Servicer shall be
deemed to
have assumed any liability or obligation of the Servicer that arose
before it
ceased to be the Servicer.
The
Servicer at its expense shall, upon request of the Master Servicer
or the
Trustee, as applicable, deliver to the assuming party all documents
and records
relating to each Sub-Servicing Agreement and the Mortgage Loans then
being
serviced and an accounting of amounts collected and held by or on behalf
of it,
and otherwise use its best efforts to effect the orderly and efficient
transfer
of the Sub-Servicing Agreements to the assuming party.
| SECTION 3.07. |
Collection
of Certain Mortgage Loan Payments.
|
The
Servicer shall make reasonable efforts, in accordance with the servicing
standards set forth in Section 3.01, to collect all payments called
for under
the terms and provisions of the Mortgage Loans and the provisions of
any
applicable insurance policies provided to the Servicer. Consistent
with the
foregoing, the Servicer may in its discretion (i) waive any late payment
charge
or, if applicable, any penalty interest, (ii) waive any provisions
of any
Mortgage Loan requiring the related Mortgagor to submit to mandatory
arbitration
with respect to disputes arising thereunder or (iii) extend the due
dates for
the Monthly Payments due on a Mortgage Note for a period of not greater
than 180
days; provided, however, that any extension pursuant to clause (iii)
above shall
not affect the amortization schedule of any Mortgage Loan for purposes
of any
computation hereunder, except as provided below. In the event of any
such
arrangement pursuant to clause (iii) above, the Servicer shall make
timely
Advances on such Mortgage Loan during such extension pursuant to Section
4.03
and in accordance with the amortization schedule of such Mortgage Loan
without
modification thereof by reason of such arrangement. Notwithstanding
the
foregoing, in the event that any Mortgage Loan is in default or, in
the judgment
of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section 3.01, may also waive,
modify
or vary any term of such Mortgage Loan (including, but not limited
to,
modifications that would change the Mortgage Rate, forgive the payment
of
principal or interest or extend the final maturity date of such Mortgage
Loan),
accept payment from the related Mortgagor of an amount less than the
Stated
Principal Balance in final satisfaction of such Mortgage Loan, or consent
to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications,
variances,
forgiveness of principal or interest, postponements, or indulgences
collectively
referred to herein as “forbearance”). The Servicer’s analysis supporting any
forbearance and the conclusion that any forbearance meets the standards
of
Section 3.01 shall be reflected in writing in the Mortgage File or
the
Servicer’s books and records.
| SECTION 3.08. |
Sub-Servicing
Accounts.
|
In
those
cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to
a Sub-
Servicing Agreement, the Sub-Servicer will be required to establish
and maintain
one or more accounts (collectively, the “Sub-Servicing Account”). The
Sub-Servicing Account shall be an Eligible Account and shall comply
with all
requirements of this Agreement relating to the Collection Account.
The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with
its
mortgage loan servicing activities on a daily basis, and in no event
more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more
than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Collection Account or remit
such
proceeds to the Servicer for deposit in the Collection Account not
later than
two Business Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Servicer shall be deemed
to have
received payments on the Mortgage Loans when the Sub-Servicer receives
such
payments.
| SECTION 3.09. |
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
The
Servicer shall establish and maintain, or cause to be established and
maintained, one or more accounts (the “Servicing Accounts”), into which
all
collections from the Mortgagors (or related advances from Sub-Servicers)
for the
payment of taxes, assessments, fire, flood, and hazard insurance premiums,
hazard insurance proceeds (to the extent such amounts are to be applied
to the
restoration or repair of the property) and comparable items for the
account of
the Mortgagors (“Escrow Payments”) shall
be
deposited and retained. Servicing Accounts shall be Eligible Accounts.
The
Servicer shall deposit in the clearing account in which it customarily
deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one
Business
Day after the Servicer’s receipt thereof, all Escrow Payments collected on
account of the Mortgage Loans and shall thereafter deposit such Escrow
Payments
in the Servicing Accounts, in no event more than two Business Days
after the
receipt of such Escrow Payments, all Escrow Payments collected on account
of the
Mortgage Loans for the purpose of effecting the payment of any such
items as
required under the terms of this Agreement. Withdrawals of amounts
from a
Servicing Account may be made only to (i) effect payment of taxes,
assessments,
hazard insurance premiums, and comparable items in a manner and at
a time that
assures that the lien priority of the Mortgage is not jeopardized (or,
with
respect to the payment of taxes, in a manner and at a time that avoids
the loss
of the Mortgaged Property due to a tax sale or the foreclosure as a
result of a
tax lien); (ii) reimburse the Servicer (or a Sub-Servicer to the extent
provided
in the related Sub-Servicing Agreement) out of related collections
for any
Servicing Advances made pursuant to Section 3.01 (with respect to taxes
and
assessments) and Section 3.14 (with respect to hazard insurance); (iii)
refund
to Mortgagors any sums as may be determined to be overages; (iv) pay
interest,
if required and as described below, to Mortgagors on balances in the
Servicing
Account; or (v) clear and terminate the Servicing Account at the termination
of
the Servicer’s obligations and responsibilities in respect of the Mortgage Loans
under this Agreement in accordance with Article IX. In the event the
Servicer
shall deposit in a Servicing Account any amount not required to be
deposited
therein or any amount previously deposited therein is unpaid by the
related
Mortgagor’s banking institution, it may at any time withdraw such amount from
such Servicing Account, any provision herein to the contrary notwithstanding.
The Servicer will be responsible for the administration of the Servicing
Accounts and will be obligated to make Servicing Advances to such accounts
when
and as necessary to avoid the lapse of insurance coverage on the Mortgaged
Property, or which the Servicer knows, or in the exercise of the required
standard of care of the Servicer hereunder should know, is necessary
to avoid
the loss of the Mortgaged Property due to a tax sale or the foreclosure
as a
result of a tax lien. If any such payment has not been made and the
Servicer
receives notice of a tax lien with respect to the Mortgage being imposed,
the
Servicer will, within 10 Business Days of receipt of such notice, advance
or
cause to be advanced funds necessary to discharge such lien on the
Mortgaged
Property. As part of its servicing duties, the Servicer or Sub-Servicers
shall
pay to the Mortgagors interest on funds in the Servicing Accounts,
to the extent
required by law and, to the extent that interest earned on funds in
the
Servicing Accounts is insufficient, to pay such interest from its or
their own
funds, without any reimbursement therefor. The Servicer may pay to
itself any
excess interest on funds in the Servicing Accounts, to the extent such
action is
in conformity with the servicing standard set forth in Section 3.01,
is
permitted by law and such amounts are not required to be paid to Mortgagors
or
used for any of the other purposes set forth above.
| SECTION 3.10. |
Collection
Account.
|
(a) On
behalf
of the Trust Fund, the Servicer shall establish and maintain, or cause
to be
established and maintained, one or more accounts (such account or accounts,
the
“Collection Account”), held in trust for the benefit
of the Trust Administrator, the Trustee and the Certificateholders.
On
behalf of the Trust Fund, the Servicer shall deposit or cause to be
deposited in
the clearing account in which it customarily deposits payments and
collections
on mortgage loans in connection with its mortgage loan servicing activities
on a
daily basis, and in no event more than one Business Day after the Servicer’s
receipt thereof, and shall thereafter deposit in the Collection Account,
in no
event more than two Business Days after the Servicer’s receipt thereof, as and
when received or as otherwise required hereunder, the following payments
and
collections received or made by it subsequent to the Cut-off Date (other
than in
respect of principal or interest on the Mortgage Loans due on or before
the
Cut-off Date) or payments (other than Principal Prepayments) received
by it on
or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all
payments on account of principal, including Principal Prepayments (but
not
Prepayment Charges), on the Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee and any Prepayment
Interest Excess) on each Mortgage Loan;
(iii) all
Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and
condemnation
proceeds (other than proceeds collected in respect of any particular
REO
Property and amounts paid in connection with a purchase of Mortgage
Loans and
REO Properties pursuant to Section 9.01);
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection
with any
losses realized on Permitted Investments with respect to funds held
in the
Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.14(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance
with
Section 2.03, Section 3.16(c) or Section 9.01;
(vii) all
amounts required to be deposited in connection with Substitution Adjustments
pursuant to Section 2.03; and
(viii) all
Prepayment Charges collected by the Servicer, and any Servicer Prepayment
Charge
Payment Amounts in connection with the Principal Prepayment of any
of the
Mortgage Loans.
The
foregoing requirements for deposit in the Collection Account shall
be exclusive,
it being understood and agreed that, without limiting the generality
of the
foregoing, payments in the nature of Servicing Fees, late payment charges,
Prepayment Interest Excess, assumption fees, insufficient funds charges
and
ancillary income (other than Prepayment Charges) need not be deposited
by the
Servicer in the Collection Account and may be retained by the Servicer
as
additional compensation. In the event the Servicer shall deposit in
the
Collection Account any amount not required to be deposited therein,
it may at
any time withdraw such amount from the Collection Account, any provision
herein
to the contrary notwithstanding.
(b) On
behalf
of the Trust Fund, the Servicer shall deliver to the Trust Administrator
in
immediately available funds for deposit in the Distribution Account
(i) on the
Servicer Remittance Date, that portion of the Available Funds (calculated
without regard to the references in the definition thereof to amounts
that may
be withdrawn from the Distribution Account) for the related Distribution
Date
then on deposit in the Collection Account, the amount of all Prepayment
Charges
or any Originator Prepayment Charge Payment Amounts collected during
the
applicable Prepayment Period by the Servicer and Servicer Prepayment
Charge
Payment Amounts in connection with the Principal Prepayment of any
of the
Mortgage Loans then on deposit in the Collection Account, the amount
of any
funds reimbursable to an Advancing Person pursuant to Section 3.26
(unless such
amounts are to be remitted in another manner as specified in the documentation
establishing the related Advance Facility) and (ii) on each Business
Day as of
the commencement of which the balance on deposit in the Collection
Account
exceeds $75,000 following any withdrawals pursuant to the next succeeding
sentence, the amount of such excess, but only if the Collection Account
constitutes an Eligible Account solely pursuant to clause (ii) of the
definition
of “Eligible Account.” If the balance on deposit in the Collection Account
exceeds $75,000 as of the commencement of business on any Business
Day and the
Collection Account does not qualify as an Eligible Account pursuant
to clauses
(i), (iii) or (iv) of the definition of “Eligible Account,” the Servicer shall,
on or before 4:00 p.m. New York time on such Business Day, withdraw
from the
Collection Account any and all amounts payable or reimbursable to the
Servicer,
the Advancing Person, the Trustee, the Trust Administrator or any Sub-Servicer
pursuant to Section 3.11 and shall pay such amounts to the Persons
entitled
thereto.
(c) Funds
in
the Collection Account may be invested in Permitted Investments in
accordance
with the provisions set forth in Section 3.12. ▇▇▇▇▇ Fargo, in its
capacity as a
Servicer, shall give written notice to the Trust Administrator (who
shall
provide notice to the Depositor, the Master Servicer and the NIMS Insurer)
of
the location of the Collection Account maintained by it when established
and
prior to any change thereof and HomEq, in its capacity as a Servicer,
shall give
written notice to the Trust Administrator, the Depositor, the Master
Servicer
and the NIMS Insurer) of the location of the Collection Account maintained
by it
when established and prior to any change thereof. The Trust Administrator
shall
give notice to the NIMS Insurer, the Servicer and the Depositor of
the location
of the Distribution Account when established and prior to any change
thereof.
(d) Funds
held in the Collection Account at any time may be delivered by the
Servicer to
the Trust Administrator for deposit in an account (which may be the
Distribution
Account and must satisfy the standards for the Distribution Account
as set forth
in the definition thereof) and for all purposes of this Agreement shall
be
deemed to be a part of the Collection Account; provided, however, that
the Trust
Administrator shall have the sole authority to withdraw any funds held
pursuant
to this subsection (d). In the event the Servicer shall deliver to
the Trust
Administrator for deposit in the Distribution Account any amount not
required to
be deposited therein, it may at any time request in writing that the
Trust
Administrator withdraw such amount from the Distribution Account and
remit to it
any such amount, any provision herein to the contrary notwithstanding.
In
addition, the Servicer, with respect to items (i) through (iv) below,
shall
deliver to the Trust Administrator from time to time for deposit, and
the Trust
Administrator, with respect to items (i) through (iv) below, shall
so deposit,
in the Distribution Account:
(i) any
Advances, as required pursuant to Section 4.03;
(ii) any
amounts required to be deposited pursuant to Section 3.23(d) or (f)
in
connection with any REO Property;
(iii) any
amounts to be paid by the Servicer in connection with a purchase of
Mortgage
Loans and REO Properties pursuant to Section 9.01;
(iv)
any
Compensating Interest to be deposited pursuant to Section 3.24 in connection
with any Prepayment Interest Shortfall; and
(v)
any
amounts required to be paid to the Trustee pursuant to the Agreement,
including,
but not limited to Section 3.06 and Section 7.02.
(e) The
Servicer shall deposit in the Collection Account any amounts required
to be
deposited pursuant to Section 3.12(b) in connection with losses realized
on
Permitted Investments with respect to funds held in the Collection
Account.
| SECTION 3.11. |
Withdrawals
from the Collection Account
|
(a) The
Servicer shall, from time to time, make withdrawals from the Collection
Account
for any of the following purposes, without priority, or as described
in Section
4.04:
(i) to
remit
to the Trust Administrator for deposit in the Distribution Account
the amounts
required to be so remitted pursuant to Section 3.10(b) or permitted
to be so
remitted pursuant to the first sentence of Section 3.10(d) and paid
to the Trust
Administrator in accordance with Section 3.10(d)(v);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for (a) any unreimbursed
Advances
to the extent of amounts received which represent Late Collections
(net of the
related Servicing Fees), Liquidation Proceeds and Insurance Proceeds
on Mortgage
Loans or REO Properties with respect to which such Advances were made
in
accordance with the provisions of Section 4.04; or (b) without limiting
any
right of withdrawal set forth in clause (vi) below, any unreimbursed
Advances
that, upon a Final Recovery Determination with respect to such Mortgage
Loan,
are Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to
such
Mortgage Loan are insufficient to reimburse the Servicer for such unreimbursed
Advances;
(iii) subject
to Section 3.16(d), to pay the Servicer or any Sub-Servicer (a) any
unpaid
Servicing Fees, (b) any unreimbursed Servicing Advances with respect
to each
Mortgage Loan, but only to the extent of any Late Collections, Liquidation
Proceeds and Insurance Proceeds received with respect to such Mortgage
Loan or
REO Property, and (c) without limiting any right of withdrawal set
forth in
clause (vi) below, any Servicing Advances made with respect to a Mortgage
Loan
that, upon a Final Recovery Determination with respect to such Mortgage
Loan are
Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to
such
Mortgage Loan are insufficient to reimburse the Servicer or any Sub-Servicer
for
Servicing Advances;
(iv) to
pay to
the Servicer as additional servicing compensation (in addition to the
Servicing
Fee) on the Servicer Remittance Date any interest or investment income
earned on
funds deposited in the Collection Account;
(v) to
pay
itself or the Originator or the Seller with respect to each Mortgage
Loan that
has previously been purchased or replaced pursuant to Section 2.03
or Section
3.16(c) all amounts received thereon subsequent to the date of purchase
or
substitution, as the case may be;
(vi) to
reimburse the Servicer for (a) any Advance or Servicing Advance previously
made
which the Servicer has determined to be a Nonrecoverable Advance in
accordance
with the provisions of Section 4.03 and (b) following the liquidation
of a
second lien Mortgage Loan, any unpaid Servicing Fees for the six-month
period
immediately following the last paid through date with respect to such
Mortgage
Loan, to the extent not recoverable from Liquidation Proceeds, Insurance
Proceeds or other amounts received with respect to the related second
lien
Mortgage Loan;
(vii) to
pay,
or to reimburse the Servicer for Servicing Advances in respect of,
expenses
incurred in connection with any Mortgage Loan pursuant to Section
3.16(b);
(viii) to
reimburse the Servicer or the Depositor for expenses incurred by or
reimbursable
to the Servicer or the Depositor pursuant to Section 6.03;
(ix) to
reimburse the NIMS Insurer, the Servicer, the Trust Administrator,
the Master
Servicer or the Trustee, as the case may be, for expenses reasonably
incurred in
respect of the breach or defect giving rise to the purchase obligation
under
Section 2.03 of this Agreement that were included in the Purchase Price
of the
Mortgage Loan, including any expenses arising out of the enforcement
of the
purchase obligation;
(x) to
pay
itself any Prepayment Interest Excess (to the extent not otherwise
retained);
(xi) to
reimburse the Servicer for any Advance or Servicing Advance made with
respect to
a delinquent Mortgage Loan which has been modified by the Servicer
in accordance
with the terms of this Agreement but only after receipt by the Servicer
of three
(3) consecutive payments following such modification;
(xii) to
invest
funds in Permitted Investments in accordance with Section 3.12;
(xiii) to
clear
and terminate the Collection Account pursuant to Section 9.01; and
(xiv) to
make
reimbursements for amounts owed on Mortgage Loans on or prior to the
Cut-off
Date pursuant to Section 2.01 of this Agreement.
(b) The
foregoing requirements for withdrawal from the Collection Account shall
be
exclusive. In the event the Servicer shall deposit in the Collection
Account any
amount not required to be deposited therein or any amount previously
deposited
therein is unpaid by the related Mortgagor’s banking institution, it may at any
time withdraw such amount from the Collection Account, any provision
herein to
the contrary notwithstanding.
(c) The
Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from
the
Collection Account, to the extent held by or on behalf of it, pursuant
to
subclauses (ii), (iii), (iv), (v), (vi) and (vii) above. The Servicer
shall
provide written notification to the NIMS Insurer and the Trust Administrator,
on
or prior to the next succeeding Servicer Remittance Date, upon making
any
withdrawals from the Collection Account pursuant to subclause (vi)
above;
provided that a Servicing Officer’s certification in the form described under
Section 4.03(d) shall suffice for such written notification to the
Trust
Administrator in respect hereof.
| SECTION 3.12. |
Investment
of Funds in the Collection Account.
|
(a) The
Servicer may direct any depository institution maintaining the Collection
Account and REO Account to invest the funds on deposit in such accounts
or to
hold such funds uninvested (each such account, for the purposes of
this Section
3.12, an “Investment Account”). All investments pursuant to this Section 3.12
shall be in one or more Permitted Investments bearing interest or sold
at a
discount, and maturing, unless payable on demand, (i) no later than
the Business
Day immediately preceding the date on which such funds are required
to be
withdrawn from such account pursuant to this Agreement, if a Person
other than
the Trust Administrator is the obligor thereon or if such investment
is managed
or advised by a Person other than the Trust Administrator or an Affiliate
of the
Trust Administrator, and (ii) no later than the date on which such
funds are
required to be withdrawn from such account pursuant to this Agreement,
if the
Trust Administrator is the obligor thereon or if such investment is
managed or
advised by the Trust Administrator or any Affiliate. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any
investment
of funds in an Investment Account shall be made in the name of the
Trust
Administrator (in its capacity as such), or in the name of a nominee
of the
Trust Administrator. The Trust Administrator shall be entitled to sole
possession (except with respect to investment direction of funds held
in the
Collection Account and REO Account and any income and gain realized
thereon)
over each such investment, and any certificate or other instrument
evidencing
any such investment shall be delivered directly to the Trust Administrator
or
its agent, together with any document of transfer necessary to transfer
title to
such investment to the Trust Administrator or its nominee. In the event
amounts
on deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trust Administrator shall:
(x)
consistent
with any notice required to be given thereunder, demand that payment
thereon be
made on the last day such Permitted Investment may otherwise mature
hereunder in
an amount equal to the lesser of (1) all amounts then payable thereunder
and (2)
the amount required to be withdrawn on such date; and
(y)
demand
payment of all amounts due thereunder promptly upon determination by
a
Responsible Officer of the Trust Administrator that such Permitted
Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in
the
Collection Account and any REO Account held by or on behalf of the
Servicer
shall be for the benefit of the Servicer and shall be subject to its
withdrawal
in accordance with Section 3.11 or Section 3.23, as applicable. The
Servicer
shall deposit in the Collection Account or any REO Account, as applicable,
the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such Account immediately upon realization
of such
loss.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs
in the
making of a payment due under any Permitted Investment, or if a default
occurs
in any other performance required under any Permitted Investment, the
Trust
Administrator may and, subject to Section 8.01 and Section 8.02(a)(v),
upon the
request of the NIMS Insurer or the Holders of Certificates representing
more
than 50% of the Voting Rights allocated to any Class of Certificates,
shall take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
| SECTION 3.13. |
[Reserved].
|
| SECTION 3.14. |
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
(a) The
Servicer shall cause to be maintained for each Mortgage Loan hazard
insurance
with extended coverage on the Mortgaged Property in an amount which
is at least
equal to the least of (i) the current Principal Balance of such Mortgage
Loan,
(ii) the amount necessary to fully compensate for any damage or loss
to the
improvements that are a part of such property on a replacement cost
basis and
(iii) the maximum insurable value of the improvements which are part
of such
Mortgaged Property, in each case in an amount not less than such amount
as is
necessary to avoid the application of any coinsurance clause contained
in the
related hazard insurance policy. The Servicer shall also cause to be
maintained
hazard insurance with extended coverage on each REO Property in an
amount which
is at least equal to the least of (i)
the
outstanding Principal Balance of the related Mortgage Loan at the time
it became
an REO Property, (ii) the maximum insurable value of the improvements
which are
part of such REO Property and (iii) solely with respect to the Mortage
Loans
serviced by ▇▇▇▇▇ Fargo, 100%
of the insurable value on a replacement cost basis of the improvements
securing
such Mortgage Loan.
The
Servicer will comply in the performance of this Agreement with all
reasonable
rules and requirements of each insurer under any such hazard policies.
Any
amounts to be collected by the Servicer under any such policies (other
than
amounts to be applied to the restoration or repair of the property
subject to
the related Mortgage or amounts to be released to the Mortgagor in
accordance
with the procedures that the Servicer would follow in servicing loans
held for
its own account, subject to the terms and conditions of the related
Mortgage and
Mortgage Note) shall be deposited in the Collection Account, subject
to
withdrawal pursuant to Section 3.11, if received in respect of a Mortgage
Loan,
or in the REO Account, subject to withdrawal pursuant to Section 3.23,
if
received in respect of an REO Property. Any cost incurred by the Servicer
in
maintaining any such insurance shall not, for the purpose of calculating
distributions to Certificateholders, be added to the unpaid Principal
Balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage
Loan
so permit; provided, however, that the Servicer may capitalize the
amount of any
Servicing Advances incurred pursuant to this Section 3.14 in connection
with the
modification of a Mortgage Loan. It is understood and agreed that no
earthquake
or other additional insurance is to be required of any Mortgagor other
than
pursuant to such applicable laws and regulations as shall at any time
be in
force and as shall require such additional insurance. If at any time
during the
term of the Mortgage Loan, the Servicer determines, in accordance with
applicable law, that a Mortgaged Property is located in a special flood
hazard
area and is not covered by flood insurance or is covered in an amount
less than
the amount required by the Flood Disaster Protection Act of 1973, as
amended,
the Servicer shall notify the related Mortgagor that the Mortgagor
must obtain
such flood insurance coverage, and if said Mortgagor fails to obtain
the
required flood insurance coverage within forty-five (45) days after
such
notification, the Servicer shall immediately force place the required
flood
insurance on the Mortgagor’s behalf. Such flood insurance shall be in an amount
equal to the least of (i) the unpaid Principal Balance of the related
Mortgage
Loan, (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program (assuming
that the
area in which such Mortgaged Property is located is participating in
such
program) and (iii) the maximum insurable value of the improvements
which are
part of such Mortgaged Property.
In
the
event that the Servicer shall obtain and maintain a blanket policy
with an
insurer having a General Policy Rating of B:VI or better in Best’s Key Rating
Guide insuring against hazard losses on all of the Mortgage Loans,
it shall
conclusively be deemed to have satisfied its obligations as set forth
in the
first two sentences of this Section 3.14, it being understood and agreed
that
such policy may contain a deductible clause on terms substantially
equivalent to
those commercially available and maintained by competent servicers,
in which
case the Servicer shall, in the event that there shall not have been
maintained
on the related Mortgaged Property or REO Property a policy complying
with the
first two sentences of this Section 3.14, and there shall have been
one or more
losses which would have been covered by such policy, deposit to the
Collection
Account from its own funds the amount not otherwise payable under the
blanket
policy because of such deductible clause. In connection with its activities
as
servicer of the Mortgage Loans, the Servicer agrees to prepare and
present, on
behalf of itself, the Trustee, the Trust Fund and Certificateholders,
claims
under any such blanket policy in a timely fashion in accordance with
the terms
of such policy.
(b) The
Servicer shall keep in force during the term of this Agreement a policy
or
policies of insurance covering errors and omissions for failure in
the
performance of the Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac if it were the purchaser of the Mortgage
Loans, unless
the Servicer has obtained a waiver of such requirements from ▇▇▇▇▇▇
Mae or
▇▇▇▇▇▇▇ Mac. The Servicer shall also maintain a fidelity bond in the
form and
amount that would meet the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac,
unless the
Servicer has obtained a waiver of such requirements from ▇▇▇▇▇▇ Mae
or ▇▇▇▇▇▇▇
Mac. The Servicer shall be deemed to have complied with this provision
if an
Affiliate of the Servicer has such errors and omissions and fidelity
bond
coverage and, by the terms of such insurance policy or fidelity bond,
the
coverage afforded thereunder extends to the Servicer. Any such errors
and
omissions policy and fidelity bond shall by its terms not be cancelable
without
thirty days’ prior written notice to the Trust Administrator and the NIMS
Insurer. The Servicer shall also cause each Sub-Servicer to maintain
a policy of
insurance covering errors and omissions and a fidelity bond which would
meet
such requirements.
| SECTION 3.15. |
Enforcement
of Due-On-Sale Clauses; Assumption
Agreements.
|
The
Servicer will, to the extent it has knowledge of any conveyance or
prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor
remains or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that the Servicer
shall
not be required to take such action if in its sole business judgment
the
Servicer believes it is not in the best interests of the Trust Fund
and shall
not exercise any such rights if prohibited by law from doing so. If
the Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into an assumption
and
modification agreement from or with the person to whom such property
has been
conveyed or is proposed to be conveyed, pursuant to which such person
becomes
liable under the Mortgage Note and, to the extent permitted by applicable
state
law, the Mortgagor remains liable thereon. The Servicer is also authorized,
to
the extent permitted under the related Mortgage Note, to enter into
a
substitution of liability agreement with such person, pursuant to which
the
original Mortgagor is released from liability and such person is substituted
as
the Mortgagor and becomes liable under the Mortgage Note, provided
that no such
substitution shall be effective unless such person satisfies the underwriting
criteria of the Servicer for a mortgage loan similar to the Mortgage
Loan. In
connection with any assumption, modification or substitution, the Servicer
shall
apply such underwriting standards and follow such practices and procedures
as
shall be normal and usual in its general mortgage servicing activities
and as it
applies to other mortgage loans owned solely by it. The Servicer shall
not take
or enter into any assumption and modification agreement, however, unless
(to the
extent practicable in the circumstances) it shall have received confirmation,
in
writing, of the continued effectiveness of any applicable hazard insurance
policy. Any fee collected by the Servicer in respect of an assumption,
modification or substitution of liability agreement shall be retained
by the
Servicer as additional servicing compensation. In connection with any
such
assumption, no material term of the Mortgage Note (including but not
limited to
the related Mortgage Rate and the amount of the Monthly Payment) may
be amended
or modified, except as otherwise required pursuant to the terms thereof.
The
Servicer shall notify the Master Servicer, the Trust Administrator
and the
Custodian that any such substitution, modification or assumption agreement
has
been completed by forwarding to the Custodian the executed original
of such
substitution, modification or assumption agreement, which document
shall be
added to the related Mortgage File and shall, for all purposes, be
considered a
part of such Mortgage File to the same extent as all other documents
and
instruments constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the
Servicer
shall not be deemed to be in default, breach or any other violation
of its
obligations hereunder by reason of any assumption of a Mortgage Loan
by
operation of law or by the terms of the Mortgage Note or any assumption
which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.15, the term “assumption” is deemed
to also include a sale (of the Mortgaged Property) subject to the Mortgage
that
is not accompanied by an assumption or substitution of liability
agreement.
| SECTION 3.16. |
Realization
Upon Defaulted Mortgage Loans.
|
(a) The
Servicer shall use its best efforts, consistent with the servicing
standards set
forth in Section 3.01, to foreclose upon or otherwise comparably convert
the
ownership of properties securing such of the Mortgage Loans as come
into and
continue in default and as to which no satisfactory arrangements can
be made for
collection of delinquent payments pursuant to Section 3.07. The Servicer
shall
be responsible for all costs and expenses incurred by it in any such
proceedings; provided, however, that such costs and expenses will be
recoverable
as Servicing Advances by the Servicer as contemplated in Section 3.11(a)
and
Section 3.23. The foregoing is subject to the provision that, in any
case in
which a Mortgaged Property shall have suffered damage from an Uninsured
Cause,
the Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion
that
such restoration will increase the proceeds of liquidation of the related
Mortgage Loan after reimbursement to itself for such expenses. With
respect to
any second lien Mortgage Loan for which the related first lien mortgage
loan is
not included in the Trust Fund, if, after such Mortgage Loan becomes
180 days or
more delinquent, the Servicer determines that a significant recovery
is not
possible through foreclosure, such Mortgage Loan may be charged off
and the
Mortgage Loan will be treated as a Liquidated Mortgage Loan giving
rise to a
Realized Loss.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision
of this
Agreement, with respect to any Mortgage Loan as to which the Servicer
has
received actual notice of, or has actual knowledge of, the presence
of any toxic
or hazardous substance on the related Mortgaged Property, the Servicer
shall
not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, or
(ii)
otherwise acquire possession of, or take any other action with respect
to, such
Mortgaged Property, if, as a result of any such action, the Trustee,
the Trust
Fund or the Certificateholders would be considered to hold title to,
to be a
“mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time
to time,
or any comparable law, unless the Servicer has also previously determined,
based
on its reasonable judgment and a report prepared by a Person who regularly
conducts environmental audits using customary industry standards,
that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws
or, if
not, that it would be in the best economic interest of the Trust Fund
to take
such actions as are necessary to bring the Mortgaged Property into
compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the
use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation,
testing,
monitoring, containment, clean-up or remediation could be required
under any
federal, state or local law or regulation, or that if any such materials
are
present for which such action could be required, that it would be in
the best
economic interest of the Trust Fund to take such actions with respect
to the
affected Mortgaged Property.
The
Servicer shall forward a copy of the environmental audit report to
the
Depositor, the Master Servicer and the NIMS Insurer. Notwithstanding
the
foregoing, if such environmental audit reveals, or if the Servicer
has actual
knowledge or notice, that such Mortgaged Property contains such wastes
or
substances, the Servicer shall not foreclose or accept a deed in lieu
of
foreclosure without the prior written consent of the NIMS Insurer.
The
cost
of the environmental audit report contemplated by this Section 3.16
shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(vii),
such
right of reimbursement being prior to the rights of Certificateholders
to
receive any amount in the Collection Account received in respect of
the affected
Mortgage Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring any
such Mortgaged Property into compliance with applicable environmental
laws, or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer
shall take
such action as it deems to be in the best economic interest of the
Trust Fund;
provided that any amounts disbursed by the Servicer pursuant to this
Section
3.16(b) shall constitute Servicing Advances, subject to Section 4.03(d).
The
cost of any such compliance, containment, clean-up or remediation shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection Account as provided in Section 3.11(a)(vii),
such
right of reimbursement being prior to the rights of Certificateholders
to
receive any amount in the Collection Account received in respect of
the affected
Mortgage Loan or other Mortgage Loans.
(c) The
Servicer or the NIMS Insurer may, at its option, purchase a Mortgage
Loan which
has become 90 or more days delinquent or for which the Servicer has
accepted a
deed in lieu of foreclosure. Prior to purchase pursuant to this Section
3.16(c),
the Servicer shall be required to continue to make Advances pursuant
to Section
4.03. If the Servicer or the NIMS Insurer purchases any delinquent
Mortgage
Loans pursuant to this Section 3.16(c), it must purchase Mortgage Loans
that are
delinquent the greatest number of days before it may purchase any that
are
delinquent any fewer number of days. The Servicer or the NIMS Insurer
shall
purchase such delinquent Mortgage Loan at a price equal to the Purchase
Price of
such Mortgage Loan. Any such purchase of a Mortgage Loan pursuant to
this
Section 3.16(c) shall be accomplished by deposit in the Collection
Account of
the amount of the Purchase Price. Upon the satisfaction of the requirements
set
forth in Section 3.17(a), the Custodian on behalf of the Trustee shall
immediately deliver the Mortgage File and any related documentation
to the
Servicer or the NIMS Insurer and the Trustee will execute such documents
provided to it as are necessary to convey the Mortgage Loan to the
Servicer or
the NIMS Insurer, as applicable.
(d) Proceeds
received in connection with any Final Recovery Determination, as well
as any
recovery resulting from a partial collection of Insurance Proceeds,
Liquidation
Proceeds or condemnation proceeds, in respect of any Mortgage Loan,
will be
applied in the following order of priority: first, to make reimbursements
for
amounts owed on the Mortgage Loans on or prior to the Cut-off Date
pursuant to
Section 2.01 of this Agreement, second, to unpaid Servicing Fees; third,
to
reimburse the Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances pursuant to Section 3.11(a)(iii) and Advances pursuant
to
Section 3.11(a)(ii); fourth, to accrued and unpaid interest on the
Mortgage
Loan, to the date of the Final Recovery Determination, or to the Due
Date prior
to the Distribution Date on which such amounts are to be distributed
if not in
connection with a Final Recovery Determination; and fifth, as a recovery
of
principal of the Mortgage Loan. The portion of the recovery so allocated
to
unpaid Servicing Fees shall be reimbursed to the Servicer or any Sub-Servicer
pursuant to Section 3.11(a)(iii).
| SECTION 3.17. |
Trustee
to Cooperate; Release of Mortgage Files.
|
(a) Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer
of a
notification that payment in full shall be escrowed in a manner customary
for
such purposes, the Servicer will immediately notify the Custodian,
on behalf of
the Trustee by a certification and shall deliver to the Custodian,
in written
(with two executed copies) or electronic format, a Request for Release
in the
form of Exhibit E hereto (which certification shall include a statement
to the
effect that all amounts received or to be received in connection with
such
payment which are required to be deposited in the Collection Account
pursuant to
Section 3.10 have been or will be so deposited) signed by a Servicing
Officer
(or in a mutually agreeable electronic format that will, in lieu of
a signature
on its face, originate from a Servicing Officer) and shall request
delivery to
it of the Mortgage File. Upon receipt of such certification and request,
the
Custodian shall (pursuant to the terms of this Agreement) promptly
release the
related Mortgage File to the Servicer and the Servicer is authorized
to cause
the removal from the registration on the MERS® System of any such Mortgage Loan,
if applicable. Except as otherwise provided herein, no expenses incurred
in
connection with any instrument of satisfaction or deed of reconveyance
shall be
chargeable to the Collection Account or the Distribution Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any
Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Custodian shall (pursuant to the
terms of
this Agreement), upon any request made by or on behalf of the Servicer
and
delivery to the Custodian, in written (with two executed copies) or
electronic
format, of a Request for Release in the form of Exhibit E signed by
a Servicing
Officer (or in a mutually agreeable electronic format that will, in
lieu of a
signature on its face, originate from a Servicing Officer), release
the related
Mortgage File to the Servicer within three Business Days, and the Trustee
shall,
at the written direction of the Servicer, execute such documents as
shall be
necessary to the prosecution of any such proceedings. Such Request
for Release
shall obligate the Servicer to return each and every document previously
requested from the Mortgage File to the Custodian when the need therefor
by the
Servicer no longer exists, unless the Mortgage Loan has been liquidated
or
charged off and the Liquidation Proceeds relating to the Mortgage Loan
have been
deposited in the Collection Account or the Mortgage File or such document
has
been delivered to an attorney, or to a public trustee or other public
official
as required by law, for purposes of initiating or pursuing legal action
or other
proceedings for the foreclosure of the Mortgaged Property either judicially
or
non-judicially, and the Servicer has delivered to the Custodian, on
behalf of
the Trustee, a Servicing Officer’s certification as to such liquidation or
action or proceedings. Upon the request of the Custodian, the Servicer
shall
provide notice to the Custodian of the name and address of the Person
to which
such Mortgage File or such document was delivered and the purpose or
purposes of
such delivery. Upon receipt of a Request for Release, in written (with
two
executed copies) or electronic format, from a Servicing Officer stating
that
such Mortgage Loan was liquidated and that all amounts received or
to be
received in connection with such liquidation that are required to be
deposited
into the Collection Account have been so deposited, or that such Mortgage
Loan
has become an REO Property, such Mortgage Loan shall be released by
the
Custodian, on behalf of the Trustee, to the Servicer or its
designee.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute
and
deliver to the Servicer or the Sub-Servicer, as the case may be, copies
of, any
court pleadings, requests for trustee’s sale or other documents necessary to the
foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage
Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available
at law
or in equity. Each such certification shall include a request that
such
pleadings or documents be executed by the Trustee and a statement as
to the
reason such documents or pleadings are required and that the execution
and
delivery thereof by the Trustee will not invalidate or otherwise affect
the lien
of the Mortgage, except for the termination of such a lien upon completion
of
the foreclosure or trustee’s sale.
| SECTION 3.18. |
Servicing
Compensation.
|
As
compensation for the activities of the Servicer hereunder, the Servicer
shall be
entitled to the Servicing Fee with respect to each Mortgage Loan payable
solely
from payments of interest in respect of such Mortgage Loan or as otherwise
provided in Section 3.11, subject to Section 3.24. In addition, the
Servicer
shall be entitled to recover unpaid Servicing Fees out of Insurance
Proceeds,
Liquidation Proceeds or condemnation proceeds to the extent permitted
by Section
3.11(a)(iii) and out of amounts derived from the operation and sale
of an REO
Property to the extent permitted by Section 3.23. Except as provided
in Section
3.26 or Section 6.04, the right to receive the Servicing Fee may not
be
transferred in whole or in part except in connection with the transfer
of all of
the Servicer’s responsibilities and obligations under this Agreement; provided,
however, that the Servicer may pay from the Servicing Fee any amounts
due to a
Sub-Servicer pursuant to a Sub-Servicing Agreement entered into under
Section
3.02.
Additional
servicing compensation in the form of assumption fees, late payment
charges,
insufficient funds charges, ancillary income or otherwise (other than
Prepayment
Charges) shall be retained by the Servicer only to the extent such
fees or
charges are received by the Servicer. The Servicer shall also be entitled
pursuant to Section 3.11(a)(iv) to withdraw from the Collection Account
and
pursuant to Section 3.23(b) to withdraw from any REO Account, as additional
servicing compensation, interest or other income earned on deposits
therein,
subject to Section 3.12 and Section 3.24. The Servicer shall also be
entitled to
receive Prepayment Interest Excess pursuant to Section 3.10 and 3.11
as
additional servicing compensation. The Servicer shall be required to
pay all
expenses incurred by it in connection with its servicing activities
hereunder
(including premiums for the insurance required by Section 3.14, to
the extent
such premiums are not paid by the related Mortgagors or by a Sub-Servicer
and
servicing compensation of each Sub-Servicer) and shall not be entitled
to
reimbursement therefor except as specifically provided herein.
| SECTION 3.19. |
Reports
to the Trust Administrator; Collection Account
Statements.
|
Not
later
than twenty days after each Distribution Date, the Servicer shall forward,
upon
request, to the Trust Administrator, the NIMS Insurer and the Depositor
the most
current available bank statement for the Collection Account. Copies
of such
statement shall be provided by the Trust Administrator to any Certificateholder
and to any Person identified to the Trust Administrator as a prospective
transferee of a Certificate, upon request at the expense of the requesting
party, provided such statement is delivered by the Servicer to the
Trust
Administrator.
| SECTION 3.20. |
Statement
as to Compliance.
|
The
Servicer, the Master Servicer and the Trust Administrator shall deliver
(or
otherwise make available) (and each of the Servicer, the Master Servicer
and the
Trust Administrator shall cause any Sub-Servicer subject to Item 1108(a)(2)
of
Regulation AB engaged by it to deliver) to the Trust Administrator
(and the
Trust Administrator shall deliver (or otherwise make available) to
the
Depositor) on or before March 15th
(with no
cure period) of each year, commencing in March 2007, an Officer’s Certificate
stating, as to the signer thereof, that (A) a review of such party’s activities
during the preceding calendar year or portion thereof and of such party’s
performance under this Agreement, or such other applicable agreement
in the case
of a Sub-Servicer subject to Item 1108(a)(2) of Regulation AB, has
been made
under such officer’s supervision and (B) to the best of such officer’s
knowledge, based on such review, such party has fulfilled all its obligations
under this Agreement, or such other applicable agreement in the case
of a
Sub-Servicer subject to Item 1108(a)(2) of Regulation AB, in all material
respects throughout such year or portion thereof, or, if there has
been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status thereof.
The
Custodian, in its capacity as such, shall not be required to deliver
such
Officer’s Certificate.
The
Master Servicer shall include all annual statements of compliance received
by it
from each Servicer with its own annual statement of compliance to be
submitted
to the Trust Administrator pursuant to this Section.
In
the
event the Servicer, the Master Servicer, the Trust Administrator or
any
Sub-Servicer subject to Item 1108(a)(2) of Regulation AB engaged by
any such
party is terminated or resigns pursuant to the terms of this Agreement,
or any
applicable agreement in the case of a Sub-Servicer subject to Item
1108(a)(2) of
Regulation AB, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.20 or the relevant section of
such other
applicable agreement, as the case may be, notwithstanding any such
termination,
assignment or resignation.
Failure
of the Servicer to timely comply with this Section 3.20 shall be deemed
a
Servicer Event of Default, and upon receipt of written notice from
the Trust
Administrator of such Servicer Event of Default, the Trustee or the
Master
Servicer, as applicable, may at the direction of the Depositor, in
addition to
whatever rights the Trustee or the Master Servicer, as applicable,
may have
under this Agreement and at law or in equity or to damages, including
injunctive
relief and specific performance, upon notice immediately terminate
(as provided
in Section 7.01(a)) all the rights and obligations of the Servicer
under this
Agreement and in and to the Mortgage Loans and the proceeds thereof
without
compensating the Servicer for the same (other than the Servicer’s rights to
reimbursement of unreimbursed Advances and Servicing Advances and accrued
and
unpaid Servicing Fees in the manner provided in this Agreement). This
paragraph
shall supersede any other provision in this Agreement or any other
agreement to
the contrary.
Each
of
the Servicer, the Master Servicer and the Trust Administrator (each,
an
“Indemnifying Party”) shall indemnify and hold harmless the Depositor, the
Master Servicer, the Trust Administrator and their officers, directors
and
Affiliates, as applicable, from and against any actual losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees
and related
costs, judgments and other costs and expenses that such Person may
sustain based
upon a breach of the obligations of such Indemnifying Party under this
Section
3.20.
| SECTION 3.21. |
Assessments
of Compliance and Attestation Reports.
|
(a) By
March
15th
(with no
cure period) of each calendar year during which a Form 10-K is required
to be
filed pursuant to Section 4.06 hereunder, commencing in March 2007,
the
Servicer, the Master Servicer, the Trust Administrator and the Custodian,
each
at its own expense, shall furnish or otherwise make available, and
each such
party shall cause any Servicing Function Participant engaged by it
to furnish,
each at its own expense, to the Trust Administrator (and the Trust
Administrator
shall furnish or otherwise make available to the Depositor), a report on an
assessment of compliance with the Relevant Servicing Criteria that
contains (A)
a statement by such party of its responsibility for assessing compliance
with
the Relevant Servicing Criteria, (B) a statement that such party used
the
Relevant Servicing Criteria to assess compliance with the Relevant
Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form
10-K
required to be filed pursuant to Section 4.06,
including, if there has been any material instance of noncompliance
with the
Relevant Servicing Criteria, a discussion of each such failure and
the nature
and status thereof, and (D) a statement that a registered public accounting
firm
has issued an attestation report on such party’s assessment of compliance with
the Relevant Servicing Criteria as of and for such period (the “Attestation
Report”). The Custodian, in its capacity as such and any Servicing Function
Participant, shall deliver such assessment of compliance only for so
long as the
Trust is subject to the Exchange Act reporting requirements.
Promptly
after receipt of each such report on assessment of compliance, (i)
the Depositor
shall review each such report and, if applicable, consult with the
Servicer, the
Master Servicer, the Trust Administrator and the Custodian, and any
Servicing
Function Participant engaged by such parties, as to the nature of any
material
instance of noncompliance with the Relevant Servicing Criteria by each
such
party, and (ii) the Trust Administrator shall confirm that the assessments,
taken as a whole, address all of the Servicing Criteria and taken individually
address the Relevant Servicing Criteria for each party as set forth
on Exhibit O
and notify the Depositor of any exceptions.
The
Master Servicer shall include all annual reports on assessment of compliance
received by it from the Servicers with its own assessment of compliance
to be
submitted to the Trust Administrator pursuant to this Section.
In
the
event the Servicer, the Master Servicer, the Trust Administrator, the
Custodian,
or any Servicing Function Participant engaged by any such party is
terminated,
assigns its rights and obligations under, or resigns pursuant to, the
terms of
this Agreement, or any other applicable agreement, as the case may
be, such
party shall provide a report on assessment of compliance pursuant to
this
Section 3.21, or the relevant section of such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
(b) By
March
15th
(with no
cure period) of each year, commencing in March 2007, the Servicer,
the Master
Servicer, the Trust Administrator and the Custodian, each at its own
expense,
shall cause, and each such party shall cause any Servicing Function
Participant
engaged by it to cause, each at its own expense, a registered public
accounting
firm (which may also render other services to the Servicer, the Master
Servicer,
the Trust Administrator, the Custodian, or such other Servicing Function
Participants, as the case may be) and that is a member of the American
Institute
of Certified Public Accountants to furnish an attestation report to
the Trust
Administrator and the Depositor, to the effect that (i) it has obtained
a
representation regarding certain matters from the management of such
party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (ii) on the basis of an examination conducted
by such
firm in accordance with standards for attestation engagements issued
or adopted
by the Public Company Accounting Oversight Board, it is expressing
an opinion as
to whether such party’s compliance with the Relevant Servicing Criteria was
fairly stated in all material respects, or it cannot express an overall
opinion
regarding such party’s assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed,
such
registered public accounting firm shall state in such report why it
was unable
to express such an opinion. Such report must be available for general
use and
not contain restricted use language.
Promptly
after receipt of each such assessment of compliance and attestation
report, the
Trust Administrator shall confirm that each assessment submitted pursuant
to
Section 3.21(a) is coupled with an attestation meeting the requirements
of this
Section and notify the Depositor of any exceptions.
The
Master Servicer shall include each such attestation furnished to it
by the
Servicers with its own attestation to be submitted to the Trust Administrator
pursuant to this Section.
In
the
event the Servicer, the Master Servicer, the Trust Administrator, the
Custodian,
or any Servicing Function Participant engaged by any such party, is
terminated,
assigns its rights and duties under, or resigns pursuant to the terms
of, this
Agreement, or any applicable custodial agreement or sub-servicing agreement,
as
the case may be, such party shall cause a registered public accounting
firm to
provide an attestation pursuant to this Section 3.21(b), or the relevant
section
of such other applicable agreement, notwithstanding any such termination,
assignment or resignation.
(c) Failure
of the Servicer to timely comply with this Section 3.21 shall be deemed
a
Servicer Event of Default, and upon written receipt of notice (which
notice may
be delivered electronically) from the Trust Administrator of such Servicer
Event
of Default, the Trustee or the Master Servicer, as applicable, at the
direction
of the Depositor may, in addition to whatever rights the Trustee or
the Master
Servicer, as applicable, may have under this Agreement and at law or
in equity,
including injunctive relief and specific performance, upon notice immediately
terminate (as provided in Section 7.01(a)) all the rights and obligations
of the
Servicer under this Agreement and in and to the Mortgage Loans and
the proceeds
thereof without compensating the Servicer for the same (other than
the
Servicer’s rights to reimbursement of unreimbursed Advances and Servicing
Advances and accrued and unpaid Servicing Fees in the manner provided
in this
Agreement). This paragraph shall supersede any other provision in this
Agreement
or any other agreement to the contrary.
Each
of
the Servicer, the Master Servicer, the Trust Administrator and the
Custodian
shall indemnify and hold harmless the Depositor, the Master Servicer
and the
Trust Administrator and its respective officers, directors and Affiliates
from
and against any actual losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and
other costs
and expenses that such Person may sustain based upon a breach of the
obligations
of such Indemnifying Party under this Section 3.21.
The
parties hereto acknowledge that the Custodian shall be required to
comply with
the provisions of this Section 3.21 only for so long as the Trust is
subject to
the Exchange Act reporting requirements.
If
the
indemnifications provided for herein are unavailable or insufficient
to hold
harmless any indemnified party, then the indemnifying party agrees
that it shall
contribute to the amount paid or payable by such indemnified party
as a result
of any claims, losses, damages or liabilities incurred by such indemnified
party
in such proportion as is appropriate to reflect the relative fault
of such
indemnified party on the one hand and the indemnifying party on the
other. This
indemnification shall survive the termination of this Agreement or
the
termination of the indemnifying party.
Notwithstanding
the foregoing, in no event shall the Custodian be liable for any consequential,
indirect or punitive damages pursuant to this Section 3.21.
| SECTION 3.22. |
Access
to Certain Documentation.
|
The
Servicer shall provide to the to the Trustee, the Trust Administrator
and the
Depositor, at the request of the Office of the Comptroller of the Currency,
the
Office of Thrift Supervision, the FDIC, and any other federal or state
banking
or insurance regulatory authority that may exercise authority over
any
Certificateholder, access to the documentation regarding the Mortgage
Loans
required by applicable laws and regulations. Such access shall be afforded
without charge, but only upon reasonable request and during normal
business
hours at the offices of the Servicer designated by it. Nothing in this
Section
shall limit the obligation of the Servicer to observe any applicable
law
prohibiting disclosure of information regarding the Mortgagors (absent
proof
that it is in compliance with applicable law) and the failure of the
Servicer to
provide access as provided in this Section as a result of such obligation
shall
not constitute a breach of this Section. In addition, access to the
documentation regarding the Mortgage Loans will be provided to the
Trust
Administrator, the NIMS Insurer, the Trustee, on behalf of the
Certificateholders or a prospective transferee of a Certificate, subject
to the
execution of a confidentiality agreement in form and substance satisfactory
to
the Servicer, upon reasonable written request during normal business
hours at
the offices of the Servicer designated by it at the expense of the
Person
requesting such access. Nothing in this Section 3.22 shall require
the Servicer
to collect, create, collate or otherwise generate any information that
it does
not generate in its usual course of business. The Servicer shall not
be required
to make copies of or ship documents to any party unless provisions
have been
made for the reimbursement of the costs thereof.
The
Servicer agrees to fully furnish in accordance with the Fair Credit
Reporting
Act and its implementing regulations, accurate and complete information
(e.g.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian and
Trans Union Credit Information Company or their successors (the “Credit
Repositories”) in a timely manner on a monthly basis.
| SECTION 3.23. |
Title,
Management and Disposition of REO
Property.
|
(a) In
the
event that title to an REO Property is acquired in foreclosure or by
deed in
lieu of foreclosure, the deed or certificate of sale shall be taken
(pursuant to
a limited power of attorney to be provided by the Trustee to the Servicer)
in
the name of the Trustee or a nominee thereof, on behalf of the
Certificateholders, or in the event the Trustee or a nominee thereof
is not
authorized or permitted to hold title to real property in the state
where the
REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall
be
consistent with an Opinion of Counsel obtained by the Servicer (the
cost of
which shall constitute a Servicing Advance) from an attorney duly licensed
to
practice law in the state where the REO Property is located. Any Person
or
Persons holding such title other than the Trustee shall acknowledge
in writing
that such title is being held as nominee for the benefit of the Trustee.
The
Trustee’s name shall be placed on the title to such REO Property solely as
the
Trustee hereunder and not in its individual capacity. The Servicer
shall ensure
that the title to such REO Property references this Agreement and the
Trustee’s
capacity hereunder. The Servicer, on behalf of REMIC I, shall sell
any REO
Property as soon as practicable and in any event no later than the
end of the
third full taxable year after the taxable year in which such REMIC
acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of
the Code or
request from the Internal Revenue Service, no later than 60 days before
the day
on which the three-year grace period would otherwise expire, an extension
of
such three-year period, unless the Servicer shall have delivered to
the Trust
Administrator, the Trustee and the NIMS Insurer an Opinion of Counsel
acceptable
to the NIMS Insurer and addressed to the Trust Administrator, the Trustee,
the
NIMS Insurer and the Depositor, to the effect that the holding by the
REMIC of
such REO Property subsequent to three years after its acquisition will
not
result in the imposition on the REMIC of taxes on “prohibited transactions”
thereof, as defined in Section 860F of the Code, or cause any of the
REMICs
created hereunder to fail to qualify as a REMIC under Federal law at
any time
that any Certificates are outstanding. The Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely
for the
purpose of its prompt disposition and sale in a manner which does not
cause such
REO Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any of the
REMICs
created hereunder of any “income from non-permitted assets” within the meaning
of Section 860F(a)(2)(B) of the Code, or any “net income from foreclosure
property” which is subject to taxation under the REMIC Provisions.
(b) The
Servicer shall separately account for all funds collected and received
in
connection with the operation of any REO Property and shall establish
and
maintain, or cause to be established and maintained, with respect to
REO
Properties an account held in trust for the Trustee for the benefit
of the
Certificateholders (the “REO Account”), which shall be an Eligible Account. The
Servicer shall be permitted to allow the Collection Account to serve
as the REO
Account, subject to separate ledgers for each REO Property. The Servicer
shall
be entitled to retain or withdraw any interest income paid on funds
deposited in
the REO Account.
(c) The
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all
things in
connection with any REO Property as are consistent with the manner
in which the
Servicer manages and operates similar property owned by the Servicer
or any of
its Affiliates, all on such terms and for such period (subject to the
requirement of prompt disposition set forth in Section 3.23(a)) as
the Servicer
deems to be in the best interests of Certificateholders. In connection
therewith, the Servicer shall deposit, or cause to be deposited in
the clearing
account in which it customarily deposits payments and collections on
mortgage
loans in connection with its mortgage loan servicing activities on
a daily
basis, and in no event more than one Business Day after the Servicer’s receipt
thereof, and shall thereafter deposit in the REO Account, in no event
more than
two Business Days after the Servicer’s receipt thereof, all revenues received by
it with respect to an REO Property and shall withdraw therefrom funds
necessary
for the proper operation, management and maintenance of such REO Property
including, without limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may
result in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain, operate and dispose of such REO
Property.
To
the
extent that amounts on deposit in the REO Account with respect to an
REO
Property are insufficient for the purposes set forth in clauses (i)
through
(iii) above with respect to such REO Property, the Servicer shall advance
from
its own funds such amount as is necessary for such purposes if, but
only if, the
Servicer would make such advances if the Servicer owned the REO Property
and if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Notwithstanding
the foregoing, none of the Servicer, the Trust Administrator or the
Trustee
shall:
(a) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect
to any
REO Property, if the New Lease by its terms will give rise to any income
that
does not constitute Rents from Real Property;
(b) authorize
any amount to be received or accrued under any New Lease other than
amounts that
will constitute Rents from Real Property;
(c) authorize
any construction on any REO Property, other than the completion of
a building or
other improvement thereon, and then only if more than ten percent of
the
construction of such building or other improvement was completed before
default
on the related Mortgage Loan became imminent, all within the meaning
of Section
856(e)(4)(B) of the Code; or
(d) authorize
any Person to Directly Operate any REO Property on any date more than
90 days
after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel,
provided to
the Trust Administrator, the Master Servicer and the NIMS Insurer,
to the effect
that such action will not cause such REO Property to fail to qualify
as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code at
any time that it is held by the REMIC, in which case the Servicer may
take such
actions as are specified in such Opinion of Counsel.
The
Servicer may contract with any Independent Contractor for the operation
and
management of any REO Property; provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection
with
the operation and management of such REO Property, including those
listed above
and remit all related revenues (net of such costs and expenses) to
the Servicer
as soon as practicable, but in no event later than thirty days following
the
receipt thereof by such Independent Contractor;
(iii) none
of
the provisions of this Section 3.23(c) relating to any such contract
or to
actions taken through any such Independent Contractor shall be deemed
to relieve
the Servicer of any of its duties and obligations to the Trustee on
behalf of
the Certificateholders with respect to the operation and management
of any such
REO Property; and
(iv) the
Servicer shall be obligated with respect thereto to the same extent
as if it
alone were performing all duties and obligations in connection with
the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed
by it to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.18 is sufficient to pay such fees;
provided,
however, that to the extent that any payments made by such Independent
Contractor would constitute Servicing Advances if made by the Servicer,
such
amounts shall be reimbursable as Servicing Advances made by the
Servicer.
(d) In
addition to the withdrawals permitted under Section 3.23(c), the Servicer
may
from time to time make withdrawals from the REO Account for any REO
Property:
(i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect
of the
related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer
for
unreimbursed Servicing Advances and Advances made in respect of such
REO
Property or the related Mortgage Loan. On the Servicer Remittance Date,
the
Servicer shall withdraw from each REO Account maintained by it and
deposit into
the Distribution Account in accordance with Section 3.10(d)(ii), for
distribution on the related Distribution Date in accordance with Section
4.01,
the income from the related REO Property received during the prior
calendar
month, net of any withdrawals made pursuant to Section 3.23(c) or this
Section
3.23(d).
(e) Subject
to the time constraints set forth in Section 3.23(a), each REO Disposition
shall
be carried out by the Servicer in a manner, at such price and upon
such terms
and conditions as shall be normal and usual in the servicing standard
set forth
in Section 3.01.
(f) The
proceeds from the REO Disposition, net of any amount required by law
to be
remitted to the Mortgagor under the related Mortgage Loan and net of
any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above,
shall be
deposited in the Distribution Account in accordance with Section 3.10(d)(ii)
on
the Servicer Remittance Date in the month following the receipt thereof
for
distribution on the related Distribution Date in accordance with Section
4.01.
Any REO Disposition shall be for cash only (unless changes in the REMIC
Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(g) The
Servicer shall file information returns with respect to the receipt
of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness
income
with respect to any Mortgaged Property as required by Sections 6050H,
6050J and
6050P of the Code, respectively. Such reports shall be in form and
substance
sufficient to meet the reporting requirements imposed by such Sections
6050H,
6050J and 6050P of the Code.
| SECTION 3.24. |
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
On
each
Servicer Remittance Date, (in the case of HomEq as Servicer no later
than 2:00
p.m. New York time) the Servicer shall remit to the Distribution Account
an
amount (“Compensating Interest”) equal to the lesser of (A) the aggregate of the
Prepayment Interest Shortfalls for the related Distribution Date and
(B) its
aggregate Servicing Fee received in the related Due Period. The Servicer
shall
not have the right to reimbursement for any amounts remitted to the
Trust
Administrator in respect of Compensating Interest. Such amounts so
remitted
shall be included in the Available Funds and distributed therewith
on the next
Distribution Date. The Servicer shall not be obligated to pay Compensating
Interest with respect to Relief Act Interest Shortfalls or Principal
Prepayments
in full occurring from the Cut-off Date through March 15, 2006.
| SECTION 3.25. |
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
In
the
event that a shortfall in any collection on or liability with respect
to the
Mortgage Loans in the aggregate results from or is attributable to
adjustments
to Mortgage Rates, Monthly Payments or Stated Principal Balances that
were made
by the Servicer in a manner not consistent with the terms of the related
Mortgage Note and this Agreement, the Servicer, upon discovery or receipt
of
notice thereof, immediately shall deposit in the Collection Account
from its own
funds the amount of any such shortfall and shall indemnify and hold
harmless the
Trust Fund, the Trustee, the Trust Administrator, the Depositor and
any
successor servicer in respect of any such liability. Such indemnities
shall
survive the termination or discharge of this Agreement. Notwithstanding
the
foregoing, this Section 3.25 shall not limit the ability of the Servicer
to seek
recovery of any such amounts from the related Mortgagor under the terms
of the
related Mortgage Note, as permitted by law.
| SECTION 3.26. |
Advance
Facility
|
The
Servicer is hereby authorized to enter into a financing or other facility
(any
such arrangement, an “Advance Facility”) under which (1) the Servicer sells,
assigns or pledges to another Person (together with such Person’s successors and
assigns, an “Advancing Person”) the Servicer’s rights under this Agreement to be
reimbursed for any Advances or Servicing Advances and/or (2) an Advancing
Person
agrees to fund some or all Advances and/or Servicing Advances required
to be
made by the Servicer pursuant to this Agreement. No consent of the
Depositor,
the Trustee, the Trust Administrator, the Certificateholders or any
other party
shall be required before the Servicer may enter into an Advance Facility.
The
Servicer shall notify each other party to this Agreement prior to or
promptly
after entering into or terminating any Advance Facility. Notwithstanding
the
existence of any Advance Facility under which an Advancing Person agrees
to fund
Advances and/or Servicing Advances on the Servicer’s behalf, the Servicer shall
remain obligated pursuant to this Agreement to make Advances and Servicing
Advances pursuant to and as required by this Agreement. If the Servicer
enters
into an Advance Facility, and for so long as an Advancing Person remains
entitled to receive reimbursement for any Advances including Nonrecoverable
Advances (“Advance Reimbursement Amounts”) and/or Servicing Advances including
Nonrecoverable Advances (“Servicing Advance Reimbursement Amounts” and together
with Advance Reimbursement Amounts, “Reimbursement Amounts”) (in each case to
the extent such type of Reimbursement Amount is included in the Advance
Facility), as applicable, pursuant to this Agreement, then, the Servicer
shall
identify such Reimbursement Amounts consistent with the reimbursement
rights set
forth in Section 3.11(a)(ii), (iii), (vi) and (vii) and remit such
Reimbursement
Amounts in accordance with Section 3.10(b) or otherwise in accordance
with the
documentation establishing the Advance Facility to such Advancing Person
or to a
trustee, agent or custodian (an “Advance Facility Trustee”) designated by such
Advancing Person. Notwithstanding anything to the contrary herein,
in no event
shall Advance Reimbursement Amounts or Servicing Advance Reimbursement
Amounts
be included in the Available Funds or distributed to
Certificateholders.
Reimbursement
Amounts shall consist solely of amounts in respect of Advances and/or
Servicing
Advances made with respect to the Mortgage Loans for which the Servicer
would be
permitted to reimburse itself in accordance with this Agreement, assuming
the
Servicer or the Advancing Person had made the related Advance(s) and/or
Servicing Advance(s). Notwithstanding the foregoing, except with respect
to
reimbursement of Nonrecoverable Advances as set forth in this Agreement,
no
Person shall be entitled to reimbursement from funds held in the Collection
Account for future distribution to Certificateholders pursuant to this
Agreement. None of the Depositor, the Trust Administrator or the Trustee
shall
have any duty or liability with respect to the calculation or payment
of any
Reimbursement Amount, nor shall the Depositor, the Master Servicer,
the Trust
Administrator or the Trustee have any responsibility to track or monitor
the
administration of the Advance Facility or the payment of Reimbursement
Amounts
to the related Advancing Person or Advance Facility Trustee. The Servicer
shall
maintain and provide to any successor servicer and (upon request) the
Trust
Administrator a detailed accounting on a loan by loan basis as to amounts
advanced by, sold, pledged or assigned to, and reimbursed to any Advancing
Person. The successor servicer shall be entitled to rely on any such
information
provided by the predecessor servicer, and the successor servicer shall
not be
liable for any errors in such information.
An
Advancing Person who receives an assignment or pledge of the rights
to be
reimbursed for Advances and/or Servicing Advances, and/or whose obligations
hereunder are limited to the funding or purchase of Advances and/or
Servicing
Advances shall not be required to meet the criteria for qualification
of a
subservicer set forth in this Agreement.
Reimbursement
Amounts distributed with respect to each Mortgage Loan shall be allocated
to
outstanding unreimbursed Advances or Servicing Advances (as the case
may be)
made with respect to that Mortgage Loan on a “first in, first out” (FIFO) basis.
Such documentation shall also require the Servicer to provide to the
related
Advancing Person or Advance Facility Trustee loan by loan information
with
respect to each Reimbursement Amount distributed to such Advancing
Person or
Advance Facility Trustee, to enable the Advancing Person or Advance
Facility
Trustee to make the FIFO allocation of each Reimbursement Amount with
respect to
each Mortgage Loan. The Servicer shall remain entitled to be reimbursed
for all
Advances and Servicing Advances funded by the Servicer to the extent
the related
rights to be reimbursed therefor have not been sold, assigned or pledged
to an
Advancing Person.
The
Servicer shall indemnify the Depositor, the Trustee, the Master Servicer,
the
Trust Administrator, any successor servicer and the Trust Fund resulting
from
any claim by the related Advancing Person arising out of the Advance
Facility,
except to the extent that such claim, loss, liability or damage resulted
from or
arose out of negligence, recklessness or willful misconduct or breach
of its
duties hereunder on the part of the Depositor, the Trust Administrator,
the
Trustee or any successor servicer.
Any
amendment to this Section 3.26 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 3.26, including amendments to add
provisions
relating to a successor servicer, may be entered into by the Trustee,
the Trust
Administrator, the Depositor and the Servicer without the consent of
any
Certificateholder, provided such amendment complies with Section 11.01
hereof.
All reasonable costs and expenses (including attorneys’ fees) of each party
hereto of any such amendment shall be borne solely by the Servicer.
Prior to
entering into an Advance Facility, the Servicer shall notify the Advancing
Person in writing that: (a) the Advances and/or Servicing Advances
purchased,
financed by and/or pledged to the Advancing Person are obligations
owed to the
Servicer on a non-recourse basis payable only from the cash flows and
proceeds
received under this Agreement for reimbursement of Advances and/or
Servicing
Advances only to the extent provided herein, and the Trustee, the Trust
Administrator and the Trust are not otherwise obligated or liable to
repay any
Advances and/or Servicing Advances financed by the Advancing Person;
(b) the
Servicer will be responsible for remitting to the Advancing Person
the
applicable amounts collected by it as reimbursement for Advances and/or
Servicing Advances funded by the Advancing Person, subject to the restrictions
and priorities created in this Agreement; and (c) neither the Trustee
nor the
Trust Administrator shall have any responsibility to track or monitor
the
administration of the Advance Facility between the Servicer and the
Advancing
Person.
| SECTION 3.27. |
Solicitations.
|
The
Servicer shall not take any action or cause any action to be taken
by any of its
employees, agents or Affiliates, or by any independent contractors
acting on the
Servicer’s behalf, to solicit any borrower in any manner whatsoever, including
but not limited to, soliciting a borrower to prepay or refinance a
Mortgage
Loan. Furthermore, neither the Servicer nor any of its Affiliates shall
directly
or indirectly provide information to any third party for purposes of
soliciting
the borrowers related to the Mortgage Loans. It is understood that
promotions
undertaken by the Servicer or its Affiliates which are directed to
the general
public at large (i.e., newspaper advertisements, radio or T.V. ads,
etc.) and
not specifically directed to the borrowers related to the Mortgage
Loans shall
not constitute a breach of this Section 3.27. From and after the Closing
Date,
Servicer hereby agrees that Servicer will not take any action or cause
any
action to be taken by any of its agents or Affiliates, or by any independent
contractors or independent mortgage brokerage companies on the Servicer’s
behalf, to personally, by telephone or mail, solicit the borrower under
any
Mortgage Loan for the purpose of refinancing such Mortgage Loan; provided,
that
Servicer may solicit any borrower for whom Servicer has received a
request for
verification of mortgage, a request for demand for payoff, a borrower
initiated
written or verbal communication indicating a desire to prepay the related
Mortgage Loan, or the borrower initiates a title search, provided further,
it is
understood and agreed that promotions undertaken by the Servicer or
any of its
affiliates which concern optional insurance products or other additional
products shall not constitute solicitation nor is the Servicer prohibited
from
responding to unsolicited requests or inquiries made by a borrower
or an agent
of a borrower. Notwithstanding the foregoing, the following solicitations,
if
undertaken by the Servicer or any Affiliate of the Servicer, shall
not be
prohibited: (i) solicitations or promotions that are directed to the
general
public at large, including, without limitation, mass mailings based
on mailing
lists and newspaper, radio, television and other mass media advertisements
and
(ii) borrower messages included on, and statement inserts provided
with, the
monthly statements sent to borrowers; provided, however, that similar
messages
and inserts are sent to all other borrowers of similar type mortgage
loans
serviced by the Servicer and such Affiliates, including, but not limited
to,
those mortgage loans serviced for the Servicer’s and/or such Affiliates own
account; and (iii) solicitations made as a part of a campaign directed
to
borrowers with mortgage loans meeting certain defined parameters (other
than
parameters relating to the borrowers or the Mortgage Loans specifically),
provided, that such solicitations are made to all borrowers of mortgage
loans
serviced by the Servicer and such Affiliates with respect to mortgage
loans
meeting such defined parameters, including, but not limited to, those
mortgage
loans serviced for the Servicer’s and/or such Affiliates own
account.
ARTICLE
IIIA
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
| SECTION 3A.01. |
Master
Servicer to Act as Master Servicer
|
The
Master Servicer shall supervise, monitor and oversee the obligation
of the
Servicer to service and administer the Mortgage Loans in accordance
with the
terms of this Agreement and shall have full power and authority to
do any and
all things which it may deem necessary or desirable in connection with
such
master servicing and administration. In performing its obligations
hereunder,
the Master Servicer shall act in a manner consistent with Accepted
Master
Servicing Practices. Furthermore, the Master Servicer shall oversee
and consult
with the Servicer as reasonably necessary from time-to-time to carry
out the
Master Servicer’s obligations hereunder, shall receive, review and evaluate all
reports, information and other data provided to the Master Servicer
by the
Servicer and shall cause the Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by the Servicer
under
this Agreement. The Master Servicer shall independently monitor the
Servicer’s
servicing activities with respect to each Mortgage Loan, reconcile
the results
of such monitoring with such information provided in the previous sentence
on a
monthly basis and coordinate corrective adjustments to the Servicer’s and Master
Servicer’s records, and based on such reconciled and corrected information,
the
Master Servicer shall provide such information to the Trust Administrator
as
shall be necessary in order for it to prepare the statements specified
in
Section 4.02, and prepare any other information and statements required to
be forwarded by the Master Servicer hereunder. The Master Servicer
shall
reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicer to the Collection Account pursuant to Section
3.10.
The
Trustee shall furnish the Servicer and the Master Servicer with any
powers of
attorney and other documents in form as provided to it necessary or
appropriate
to enable the Servicer and the Master Servicer to service and administer
the
Mortgage Loans and REO Properties.
The
Trustee and the Trust Administrator shall provide access to the records
and
documentation in possession of the Trustee or the Trust Administrator,
as
applicable, regarding the Mortgage Loans and REO Properties and the
servicing
thereof to the Certificateholders, the FDIC, and the supervisory agents
and
examiners of the FDIC, such access being afforded only upon reasonable
prior
written request and during normal business hours at the office of the
Trustee or
the Trust Administrator, as applicable; provided, however, that, unless
otherwise required by law, neither the Trustee nor the Trust Administrator
shall
be required to provide access to such records and documentation if
the provision
thereof would violate the legal right to privacy of any Mortgagor.
The Trustee
and the Trust Administrator shall allow representatives of the above
entities to
photocopy any of the records and documentation and shall provide equipment
for
that purpose at a charge that covers the Trustee’s or Trust Administrator’s, as
applicable, actual costs.
The
Trustee shall execute and deliver to the Servicer and the Master Servicer
any
court pleadings, requests for trustee’s sale or other documents necessary or
desirable to (i) the foreclosure or trustee’s sale with respect to a Mortgaged
Property; (ii) any legal action brought to obtain judgment against
any Mortgagor
on the Mortgage Note or Security Instrument; (iii) obtain a deficiency
judgment
against the Mortgagor; or (iv) enforce any other rights or remedies
provided by
the Mortgage Note or Mortgage or otherwise available at law or
equity.
| SECTION 3A.02. |
[Reserved].
|
| SECTION 3A.03. |
Monitoring
of Servicer.
|
The
Master Servicer shall be responsible for reporting to the Trustee,
the Trust
Administrator and the Depositor the non-compliance by the Servicer
with its
duties under this Agreement. In the review of the Servicer’s activities, the
Master Servicer may rely upon an Officers’ Certificate of the Servicer (or
similar document signed by a Servicing Officer of the Servicer) with
regard to
the Servicer’s compliance with the terms of this Agreement. In the event that
the Master Servicer, in its good faith judgment, determines that the
Servicer
should be terminated in accordance with the terms hereof, or that a
notice
should be sent pursuant to the terms hereof with respect to the occurrence
of an
event that, unless cured, would constitute grounds for such termination,
the
Master Servicer shall notify the Depositor, the Trust Administrator
and the
Trustee thereof and the Master Servicer shall issue such notice or
take such
other action as it deems appropriate.
The
Master
Servicer (or if the Master Servicer is the Servicer, the Trustee),
for
the
benefit of the Certificateholders, shall enforce the obligations of
the Servicer
under this Agreement, and shall, in the event that it receives notice
and
confirms that the Servicer has failed to perform its obligations in
accordance
with this Agreement, subject to the preceding paragraph, terminate
the rights
and obligations of the Servicer hereunder and in accordance with the
provisions
of Article VII of this Agreement and act as Servicer of the Mortgage
Loans or
appoint a successor servicer; provided, however, it is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be
fully
transferred to such successor servicer. Such enforcement, including,
without
limitation, the legal prosecution of claims and the pursuit of other
appropriate
remedies, shall be in such form and carried out to such an extent and
at such
time as the Master Servicer or Trustee, as applicable, in its good
faith
business judgment, would require were it the owner of the Mortgage
Loans. The
Master Servicer or the Trustee, as applicable, shall pay the costs
of such
enforcement at its own expense, provided that the Master Servicer or
the
Trustee, as applicable, shall not be required to prosecute or defend
any legal
action except to the extent that the Master Servicer or the Trustee,
as
applicable, shall have received reasonable indemnity for its costs
and expenses
in pursuing such action.
To
the
extent that the costs and expenses of the Master Servicer or Trustee,
as
applicable, related to any termination of the Servicer, appointment
of a
successor servicer or the transfer and assumption of servicing by the
Master
Servicer or the Trustee, as applicable, with respect to this Agreement
(including, without limitation, (i) all legal costs and expenses and
all due
diligence costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of a Servicer Event of Default
and (ii)
all costs and expenses associated with the complete transfer of servicing,
including all servicing files and all servicing data and the completion,
correction or manipulation of such servicing data as may be required
by the
successor servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the successor servicer to service the Mortgage
Loans
in accordance with this Agreement) are not fully and timely reimbursed
by the
terminated Servicer, the Master Servicer or the Trustee, as applicable,
shall be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
The
Master Servicer (or if the Master Servicer is the Servicer, the Trustee)
shall,
upon receipt from the Servicer, the Master Servicer or the Trust Administrator,
of notice of any failure of the Servicer to comply with the remittance
requirements and other obligations set forth in this Agreement, enforce
such
obligations.
If
the
Master Servicer or the Trustee, as applicable, acts as Servicer, it
will not
assume liability for the representations and warranties of the Servicer
that it
replaces.
| SECTION 3A.04. |
Fidelity
Bond.
|
The
Master Servicer, at its expense, shall maintain in effect a blanket
fidelity
bond and an errors and omissions insurance policy, affording coverage
with
respect to all directors, officers, employees and other Persons acting
on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicer.
| SECTION 3A.05. |
Power
to Act; Procedures.
|
The
Master Servicer shall master service the Mortgage Loans and shall have
full
power and authority, subject to the REMIC Provisions and the provisions
of
Article X hereof, to do any and all things that it may deem necessary
or
desirable in connection with the master servicing and administration
of the
Mortgage Loans, including but not limited to the power and authority
(i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents,
(ii) to
consent to transfers of any Mortgaged Property and assumptions of the
Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds
and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Mortgage Loan,
in each
case, in accordance with the provisions of this Agreement; provided,
however,
that the Master Servicer shall not (and, consistent with its responsibilities
under Article X, shall not permit any Servicer to) knowingly or intentionally
take any action, or fail to take (or fail to cause to be taken) any
action
reasonably within its control and the scope of duties more specifically
set
forth herein, that, under the REMIC Provisions, if taken or not taken,
as the
case may be, would cause the Trust REMIC to fail to qualify as a REMIC
or result
in the imposition of a tax upon the Trust Fund (including but not limited
to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the Master Servicer has received an Opinion of Counsel
(but not at
the expense of the Master Servicer) to the effect that the contemplated
action
would not cause any REMIC to fail to qualify as a REMIC or result in
the
imposition of a tax upon any REMIC. The Trustee shall furnish the Master
Servicer or the Servicer, upon written request from a Servicing Officer,
with
any powers of attorney empowering the Master Servicer or the Servicer
to execute
and deliver instruments of satisfaction or cancellation, or of partial
or full
release or discharge, and to foreclose upon or otherwise liquidate
Mortgaged
Property, and to appeal, prosecute or defend in any court action relating
to the
Mortgage Loans or the Mortgaged Property, in accordance with this Agreement,
and
the Trustee shall execute and deliver such other documents, as the
Master
Servicer may request, to enable the Master Servicer to master service
and
administer the Mortgage Loans and carry out its duties hereunder, in
each case
in accordance with Accepted Master Servicing Practices (and the Trustee
shall
have no liability for misuse of any such powers of attorney by the
Master
Servicer or the Servicer). If the Master Servicer or the Trustee has
been
advised that it is likely that the laws of the state in which action
is to be
taken prohibit such action if taken in the name of the Trustee or that
the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, the Master Servicer
shall join
with the Trustee in the appointment of a co-trustee pursuant to
Section 8.10 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in
those
instances where it is taking action in the name of the Trustee, be
deemed to be
the agent of the Trustee.
| SECTION 3A.06. |
Due
on Sale Clauses; Assumption Agreements.
|
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the
Master
Servicer shall cause the Servicer to enforce such clauses in accordance
with
this Agreement. If applicable law prohibits the enforcement of a due-on-sale
clause or such clause is otherwise not enforced in accordance with
this
Agreement, and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be released from liability in accordance with this
Agreement.
| SECTION 3A.07. |
[Reserved].
|
| SECTION 3A.08. |
Documents,
Records and Funds in Possession of Master Servicer to be Held
for
Trustee.
|
The
Master Servicer and the Servicer shall transmit to the Trustee (or
the Custodian
on behalf of the Trustee) such documents and instruments coming into
the
possession of the Master Servicer or the Servicer from time to time
as are
required by the terms hereof to be delivered to the Trustee, the Trust
Administrator or the Custodian. Any funds received by the Master Servicer
or by
the Servicer in respect of any Mortgage Loan or which otherwise are
collected by
the Master Servicer or by the Servicer as Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan shall be held for the benefit
of the
Trustee and the Certificateholders subject to the Master Servicer’s right to
retain its Master Servicer Fee or withdraw from the Distribution Account
the
Master Servicing Compensation and other amounts provided in this Agreement,
and
to the right of the Servicer to retain its Servicing Fee and other
amounts as
provided in this Agreement. The Master Servicer shall, and subject
to Section
3.22 shall cause the Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trust Administrator,
its
agents and accountants at any time upon reasonable request and during
normal
business hours, and to Certificateholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and
Corporation
or examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of
Thrift
Supervision or other regulatory authority, such access to be afforded
without
charge but only upon reasonable request in writing and during normal
business
hours at the offices of the Master Servicer designated by it. In fulfilling
such
a request the Master Servicer shall not be responsible for determining
the
sufficiency of such information.
All
Mortgage Files and funds collected or held by, or under the control
of, the
Master Servicer or the Servicer, in respect of any Mortgage Loans,
whether from
the collection of principal and interest payments or from Liquidation
Proceeds
or Insurance Proceeds, shall be held by the Servicer or the Master
Servicer, as
applicable, for and on behalf of the Trustee and the Certificateholders
and
shall be and remain the sole and exclusive property of the Trustee;
provided,
however, that the Master Servicer and the Servicer shall be entitled
to setoff
against, and deduct from, any such funds any amounts that are properly
due and
payable to the Master Servicer or the Servicer under this
Agreement.
| SECTION 3A.09. |
Compensation
for the Master Servicer.
|
The
Master Servicer shall be entitled to the Master Servicer Fee with respect
to
each Mortgage Loan. The Master Servicer will also be entitled to all
income and
gain realized from any investment of funds in the Distribution Account,
pursuant
to Section 3A.11 and Section 3A.12, for the performance of its
activities hereunder (the “Master Servicing Compensation”). Servicing
compensation in the form of assumption fees, if any, late payment charges,
as
collected, if any, or otherwise shall be retained by the Servicer in
accordance
with Section 3.18. The Master Servicer shall be required to pay all
expenses
incurred by it in connection with the performance of its duties hereunder
and
shall not be entitled to reimbursement therefor except as provided
in this
Agreement.
| SECTION 3A.10. |
Obligations
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
In
the
event of a Prepayment Interest Shortfall, the Master Servicer shall
remit to the
Trust Administrator, from its own funds and without right of reimbursement
(except as described below), not later than the related Distribution
Date,
Compensating Interest in an amount equal to the lesser of (i) the aggregate
amounts in respect of Compensating Interest required to be paid by
the Servicer
pursuant to Section 3.24 with respect to Prepayment Interest Shortfalls
attributable to Principal Prepayments in full on the Mortgage Loans
for the
related Distribution Date and not so paid by the Servicer and (ii)
the aggregate
compensation payable to the Master Servicer for the related collection
period
under this Agreement. In the event the Master Servicer pays any amount
in
respect of such Compensating Interest prior to the time it shall have
succeeded
as successor servicer, the Master Servicer shall be subrogated to the
Trust
Fund’s right to receive such amount from the Servicer. In the event the
Trust
Fund receives from the Servicer all or any portion of amounts in respect
of
Compensating Interest required to be paid by the Servicer pursuant
to Section
3.24, not so paid by the Servicer when required, and paid by the Master
Servicer
pursuant to this Section 3A.10, then the Master Servicer may reimburse
itself for the amount of Compensating Interest paid by the Master Servicer
from
such receipts by the Trust Fund.
| SECTION 3A.11. |
Distribution
Account.
|
On
behalf
of the Trust Fund, the Trust Administrator shall establish and maintain
one or
more accounts (such account or accounts, the “Distribution Account”), held in
trust for the benefit of the Trustee and the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer
will
deposit in the Distribution Account as identified by the Master Servicer
and as
received by the Master Servicer, the following amounts:
(1) Any
amounts remitted to the Master Servicer by the Servicer from the Collection
Account;
(2) Any
Advances received from the Servicer or made by the Master Servicer
or (if the
Master Servicer is the Servicer) the Trustee (in each case in its capacity
as
successor servicer), and any payments of Compensating Interest received
from the
Servicer or made by the Master Servicer (unless, in the case of the
Master
Servicer, such amounts are deposited by the Master Servicer directly
into the
Distribution Account);
(3) Any
Insurance Proceeds or Net Liquidation Proceeds received by or on behalf
of the
Master Servicer or which were not deposited in the Collection
Account;
(4)
Any
amounts required to be deposited with respect to losses on investments
of
deposits in the Distribution Account; and
(5) Any
other
amounts received by or on behalf of the Master Servicer and required
to be
deposited in the Distribution Account pursuant to this Agreement.
All
amounts deposited to the Distribution Account shall be held by the
Master
Servicer in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account
shall be
exclusive, it being understood and agreed that, without limiting the
generality
of the foregoing, payments in the nature of (A) the Master Servicer
Fee, (B)
late payment charges or assumption, tax service, statement account
or payoff,
substitution, satisfaction, release and other like fees and charges
and (C) the
items enumerated in Section 3A.12(a) (with respect the clearing and
termination of the Distribution Account and with respect to amounts
deposited in
error), in Section 3A.12(b) or in clauses (i), (ii), (iii) and (iv), (v) of
Section 3A.12(c), need not be credited by the Master Servicer to the
Distribution Account. In the event that the Master Servicer shall deposit
or
cause to be deposited to the Distribution Account any amount not required
to be
credited thereto, the Trustee or the Trust Administrator, upon receipt
of a
written request therefor signed by a Servicing Officer of the Master
Servicer,
shall promptly transfer such amount to the Master Servicer, any provision
herein
to the contrary notwithstanding.
The
Trust
Administrator may direct any depository institution maintaining the
Distribution
Account to invest the funds on deposit in such account or to hold such
funds
uninvested. All investments pursuant to this Section 3A.11 shall be in one
or more Permitted Investments bearing interest or sold at a discount,
and
maturing, unless payable on demand, (i) no later than the Business
Day
immediately preceding the date on which such funds are required to
be withdrawn
from such account pursuant to this Agreement, if a Person other than
the Trust
Administrator is the obligor thereon or if such investment is managed
or advised
by a Person other than the Trust Administrator or an Affiliate of the
Trust
Administrator, and (ii) no later than the date on which such funds
are required
to be withdrawn from such account pursuant to this Agreement, if the
Trust
Administrator is the obligor thereon or if such investment is managed
or advised
by the Trust Administrator or any Affiliate. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment
of funds in
the Distribution Account shall be made in the name of the Trustee,
or in the
name of a nominee of the Trust Administrator. The Trust Administrator
shall be
entitled to sole possession over each such investment, and any certificate
or
other instrument evidencing any such investment shall be delivered
directly to
the Trust Administrator or its agent, together with any document of
transfer
necessary to transfer title to such investment to the Trust Administrator
or its
nominee. In the event amounts on deposit in the Distribution Account
are at any
time invested in a Permitted Investment payable on demand, the Trust
Administrator shall:
(x) consistent
with any notice required to be given thereunder, demand that payment
thereon be
made on the last day such Permitted Investment may otherwise mature
hereunder in
an amount equal to the lesser of (1) all amounts then payable thereunder
and (2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by
a
Responsible Officer of the Trust Administrator that such Permitted
Investment
would not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Distribution Account.
All
income and gain realized from the investment of funds deposited in
the
Distribution Account shall be for the benefit of the Master Servicer.
The Trust
Administrator shall deposit in the Distribution Account the amount
of any loss
of principal incurred in respect of any such Permitted Investment made
with
funds in such Account immediately upon realization of such loss.
| SECTION 3A.12. |
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
The
Trust
Administrator will, from time to time on demand of the Master Servicer, the
Servicer or the Trustee, make or cause to be made such withdrawals
or transfers
from the Distribution Account pursuant to this Agreement. The Trust
Administrator may clear and terminate the Distribution Account pursuant
to
Section 9.01 and remove amounts from time to time deposited in
error.
On
an
ongoing basis, the Trust Administrator shall withdraw funds from the
Distribution Account to pay (i) any Extraordinary Trust Fund Expenses
including
but not limited to amounts payable to the Servicer or the Depositor
pursuant to
Section 6.03(b), to the Trustee pursuant to Section 3.06, Section 7.02 or
Section 8.05 or to the Master Servicer pursuant to Section 6.03(c), and
(ii) any amounts expressly payable to the Master Servicer as set forth
in
Section 3A.09.
The
Trust
Administrator may withdraw from the Distribution Account any of the
following
amounts (in the case of any such amount payable or reimbursable to
the Servicer,
only to the extent the Servicer shall not have paid or reimbursed itself
such
amount prior to making any remittance to the Master Servicer pursuant
to the
terms of this Agreement):
(i) (a)
to
pay to the Master Servicer any unpaid Master Servicer Fees and (b)
to reimburse
the Master Servicer or (if the Master Servicer is the Servicer) the
Trustee (to
the extent either of them is obligated to do so as successor Servicer)
for any
Advance of its own funds, the right of the Master Servicer or the Trustee,
as
applicable, to reimbursement pursuant to this subclause (i) being limited
to
amounts received on a particular Mortgage Loan (including, for this
purpose, the
Purchase Price therefor, Insurance Proceeds, Liquidation Proceeds and
Subsequent
Recoveries) which represent late payments or recoveries of the principal
of or
interest on such Mortgage Loan respecting which such Advance was
made;
(ii) to
reimburse the Master Servicer from Insurance Proceeds, Liquidation
Proceeds or
Subsequent Recoveries relating to a particular Mortgage Loan for amounts
expended by the Master Servicer in good faith in connection with the
restoration
of the related Mortgaged Property which was damaged by an Uninsured
Cause or in
connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer from Insurance Proceeds relating to a
particular
Mortgage Loan for insured expenses incurred with respect to such Mortgage
Loan
and to reimburse the Master Servicer from Liquidation Proceeds and
Subsequent
Recoveries from a particular Mortgage Loan for Liquidation Expenses
incurred
with respect to such Mortgage Loan;
(iv) to
reimburse the Master Servicer for advances of funds (other than Advances)
made
with respect to the Mortgage Loans, and the right to reimbursement
pursuant to
this subclause being limited to amounts received on the related Mortgage
Loan
(including, for this purpose, the Purchase Price therefor, Insurance
Proceeds,
Liquidation Proceeds and Subsequent Recoveries) which represent late
recoveries
of the payments for which such advances were made;
(v) to
reimburse the Master Servicer (or if the Master Servicer is the Servicer)
the
Trustee (to the extent either of them is obligated to do so as successor
Servicer) for any Advance or Servicing Advance, after a Realized Loss
has been
allocated with respect to the related Mortgage Loan if the Advance
or Servicing
Advance has not been reimbursed pursuant to clauses (i) through
(iv);
(vi) to
make
distributions in accordance with Section 4.01;
(vii) to
pay
compensation to the Trust Administrator on each Distribution Date;
(viii) to
pay
any amounts in respect of taxes pursuant to Section 10.01(g);
(ix) without
duplication of the amount set forth in clause (iii) above, to pay any
Extraordinary Trust Fund Expenses to the extent not paid by the Master
Servicer
from the Distribution Account;
(x) without
duplication of any of the foregoing, to reimburse or pay the Servicer
any such
amounts as are due thereto under this Agreement and have not been retained
by or
paid to the Servicer, to the extent provided in this Agreement and
to refund to
the Servicer any amount remitted by the Servicer to the Master Servicer
in
error;
(xi) to
pay to
the Master Servicer, any interest or investment income earned on funds
deposited
in the Distribution Account;
(xii) to
pay
the Credit Risk Manager the Credit Risk Manager Fee;
(xiii) to
withdraw any amount deposited in the Distribution Account in error;
(xiv) to
clear
and terminate the Distribution Account pursuant to Section 9.01; and
(xv) to
make
distributions to the Swap Account.
The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of accounting for any reimbursement
from
the Distribution Account pursuant to clauses (i) through (v) above
or with
respect to any such amounts which would have been covered by such clauses
had
the amounts not been retained by the Master Servicer without being
deposited in
the Distribution Account.
On
or
before the Business Day prior to each Distribution Date, the Master
Servicer or
(if the Master Servicer is the Servicer) the Trustee (to the extent
either of
them is obligated to do so as successor Servicer) shall remit to the
Trust
Administrator for deposit in the Distribution Account any Advances
required to
be made and the Master Servicer shall deposit in the Distribution Account
any
Compensating Interest required to be paid, in either such case by the
Master
Servicer or the Trustee, as applicable, with respect to the Mortgage
Loans.
| SECTION 3A.13. |
Late
Remittance.
|
With
respect to any remittance received by the Master Servicer after the
day on which
such payment was due, the Servicer shall pay to the Master Servicer
interest on
any such late payment at an annual rate equal to the Prime Rate, adjusted
as of
the date of each change, plus three percentage points, but in no event
greater
than the maximum amount permitted by applicable law. Such interest
shall be
deposited in the Distribution Account by the Servicer on the date such
late
payment is made and shall cover the period commencing with the day
following the
day such payment was due and ending with the Business Day on which
such payment
is made, both inclusive. Such interest shall be remitted along with
the
distribution payable on the next succeeding Servicer Remittance Date.
The
payment by the Servicer of any such interest shall not be deemed an
extension of
time for payment or a waiver of any Servicer Event of Default.
ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS
| SECTION 4.01. |
Distributions.
|
(a) On
each
Distribution Date, the following amounts, in the following order of
priority,
shall be distributed by REMIC I to REMIC II on account of the REMIC
I Regular
Interests and distributed to the holders of the Class R Certificates
(in respect
of the Class R-I Interest), as the case may be:
(i) to
Holders of REMIC I Regular Interest I, REMIC I Regular Interest I-1-A
through
I-60-B, pro rata, in an amount equal to (A) Uncertificated Interest
for such
REMIC I Regular Interests for such Distribution Date, plus (B) any
amounts
payable in respect thereof remaining unpaid from previous Distribution
Dates.
(ii) to
the
extent of amounts remaining after the distributions made pursuant to
clause (1)
above, payments of principal shall be allocated as follows: (A) first,
to REMIC
I Regular Interest I and then to REMIC I Regular Interests I-1-A through
I-60-B
starting with the lowest numerical denomination until the Uncertificated
Balance
of each such REMIC I Regular Interest is reduced to zero, provided
that, for
REMIC I Regular Interests with the same numerical denomination, such
payments of
principal shall be allocated pro rata between such REMIC I Regular
Interests and
(B) second, to the extent of any Overcollateralization Reduction Amounts,
first
to REMIC I Regular Interest I until the Uncertificated Balance of such
REMIC I
Regular Interest is reduced to zero, then, to REMIC I Regular Interests
I-1-A
through I-60-B starting with the lowest numerical denomination until
the
Uncertificated Balance of each such REMIC I Regular Interest is reduced
to zero,
provided that, for REMIC I Regular Interests with the same numerical
denomination, such Overcollateralization Reduction Amounts shall be
allocated
pro rata between such REMIC I Regular Interests.
(iii) to
the
Holders of REMIC I Regular Interest I-LTP, (A) all amounts representing
Prepayment Charges (other
than any Originator Prepayment Charge Payment Amount)
in
respect of the Mortgage Loans received during the related Prepayment
Period and
(B) on the Distribution Date immediately following the expiration of
the latest
Prepayment Charge as identified on the Prepayment Charge Schedule or
any
Distribution Date thereafter until $100 has been distributed pursuant
to this
clause.
(b) On
each
Distribution Date, the following amounts, in the following order of
priority,
shall be distributed by REMIC II to REMIC III on account of the REMIC
II Regular
Interests or withdrawn from the Distribution Account and distributed
to the
holders of the Class R Certificates (in respect of the Class R-II Interest),
as
the case may be:
(i) to
the
Holders of REMIC II Regular Interest II-LTIO, in an amount equal to
(a)
Uncertificated Accrued Interest for such REMIC II Regular Interest
for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from
previous Distribution Dates.
(ii) to
Holders of REMIC II Regular Interest II-LTAA, REMIC II Regular Interest
II-LTA1,
REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3,
REMIC II
Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC
II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest
II-LTM6,
REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8,
REMIC II
Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10, REMIC
II Regular
Interest II-LTM11, REMIC II Regular Interest II-LTZZ and REMIC II Regular
Interest II-LTP, pro
rata,
in an
amount equal to (A) the Uncertificated Interest for such Distribution
Date, plus
(B) any amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Interest in respect of REMIC
II Regular
Interest II-LTZZ shall be reduced and deferred when the REMIC II
Overcollateralized Amount is less than the REMIC II Required
Overcollateralization Amount, by the lesser of (x) the amount of such
difference
and (y) the Maximum II-LTZZ Uncertificated Interest Deferral Amount
and such
amount will be payable to the Holders of REMIC II Regular Interest
II-LTA1,
REMIC II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3,
REMIC II
Regular Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC
II Regular
Interest II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular
Interest
II-LTM4, REMIC II Regular Interest II-LTM5, REMIC II Regular Interest
II-LTM6,
REMIC II Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8,
REMIC II
Regular Interest II-LTM9, REMIC II Regular Interest II-LTM10 and REMIC
II
Regular Interest II-LTM11 in the same proportion as the Overcollateralization
Deficiency Amount is allocated to the Corresponding Certificates and
the
Uncertificated Balance of REMIC II Regular Interest II-LTZZ shall be
increased
by such amount; and
(iii) to
the
Holders of REMIC II Regular Interest II-LTP, (A) on each Distribution
Date, 100%
of the amount paid in respect of Prepayment Charges (other than any
Originator
Prepayment Charge Payment Amount) and (B) on the Distribution Date
immediately
following the expiration of the latest Prepayment Charge as identified
on the
Prepayment Charge Schedule or any Distribution Date thereafter until
$100 has
been distributed pursuant to this clause;
(iv) to
the
Holders of the REMIC II Regular Interests, in an amount equal to the
remainder
of the Available Funds for such Distribution Date after the distributions
made
pursuant to clauses (i), (ii) and (iii) above, allocated as
follows:
(a) 98.00%
of
such remainder to the Holders of REMIC II Regular Interest II-LTAA,
until the
Uncertificated Balance of such REMIC II Regular Interest is reduced
to
zero;
(b) 2.00%
of
such remainder, first to the Holders of REMIC II Regular Interest II-LTA1,
REMIC
II Regular Interest II-LTA2, REMIC II Regular Interest II-LTA3, REMIC
II Regular
Interest II-LTA4, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest
II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest
II-LTM4,
REMIC II Regular Interest II-LTM5, REMIC II Regular Interest II-LTM6,
REMIC II
Regular Interest II-LTM7, REMIC II Regular Interest II-LTM8, REMIC
II Regular
Interest II-LTM9, REMIC II Regular Interest II-LTM10 and REMIC II Regular
Interest II-LTM11, equal to 1.00% of and in the same proportion as
principal
payments are allocated to the Corresponding Certificates, until the
Uncertificated Balances of such REMIC II Regular Interests are reduced
to zero
and second, to the Holders of REMIC II Regular Interest II-LTZZ, 1.00%,
until
the Uncertificated Balance of such REMIC II Regular Interest is reduced
to zero;
and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect
of the
Class R-II Interest);
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that
are
attributable to an Overcollateralization Release Amount shall be allocated
to
Holders of (i) REMIC II Regular Interest II-LTAA and REMIC II Regular
Interest
II-LTZZ, respectively; once the Uncertificated Principal Balances of
REMIC II
Regular Interest II-LTA1, REMIC II Regular Interest II-LTA2, REMIC
II Regular
Interest II-LTA3, REMIC II Regular Interest II-LTA4, REMIC II Regular
Interest
II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3,
REMIC II Regular Interest II-LTM4, REMIC II Regular Interest II-LTM5,
REMIC II
Regular Interest II-LTM6, REMIC II Regular Interest II-LTM7, REMIC
II Regular
Interest II-LTM8, REMIC II Regular Interest II-LTM9, REMIC II Regular
Interest
II-LTM10, and REMIC II Regular Interest II-LTM11 have been reduced
to
zero.
On
each
Distribution Date, all amounts representing Prepayment Charges (other
than any
Originator Prepayment Charge Payment Amount) in respect of the Mortgage
Loans
during the related Prepayment Period will be distributed by REMIC II
to the
Holders of REMIC II Regular Interest II-LTP. The payment of the foregoing
amounts to the Holders of REMIC II Regular Interest II-LTP shall not
reduce the
Uncertificated Balance thereof.
(c) On
each
Distribution Date, the Trust Administrator shall withdraw from the
Distribution
Account that portion of Available Funds for such Distribution Date
consisting of
the Interest Remittance Amount for such Distribution Date, and make
the
following distributions in the order of priority described below, in
each case
to the extent of the Interest Remittance Amount remaining for such
Distribution
Date:
(i) concurrently,
to the Holders of the Class A Certificates, on a pro
rata
basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, for such Certificates
for such Distribution Date; and
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates,
the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates, the Class M-10 Certificates
and the
Class M-11 Certificates, in that order, the Monthly Interest Distributable
Amount allocable to each such Class of Certificates.
(d) (I)On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a
Trigger Event
is in effect, distributions in respect of principal to the extent of
the
Principal Distribution Amount shall be made in the following amounts
and order
of priority:
(i) to
the
Holders of the Class A Certificates (allocated among the Class A Certificates
in
the priority described below), until the Certificate Principal Balances
thereof
have been reduced to zero; and
(ii) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates,
the
Class M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the Class M-6 Certificates, the Class M-7 Certificates, the Class M-8
Certificates, the Class M-9 Certificates, the Class M-10 Certificates
and the
Class M-11 Certificates, in that order, until the Certificate Principal
Balances
thereof have been reduced to zero.
(II) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which
a Trigger
Event is not in effect, distributions in respect of principal to the
extent of
the Principal Distribution Amount shall be made in the following amounts
and
order of priority:
(iii) to
the
Holders of the Class A Certificates (allocated among the Class A Certificates
in
the priority described below), the Senior Principal Distribution Amount
until
the Certificate Principal Balances thereof have been reduced to zero;
(iv) sequentially,
to the Holders of the Class M-1 Certificates, the Class M-2 Certificates
and the
Class M-3 Certificates, the Sequential Class M Principal Distribution
Amount
until the Certificate Principal Balances thereof have been reduced
to
zero;
(v) to
the
Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced
to
zero;
(vi) to
the
Holders of the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced
to
zero;
(vii) to
the
Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced
to zero;
(viii) to
the
Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced
to
zero;
(ix) to
the
Holders of the Class M-8 Certificates, the Class M-8 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced
to
zero;
(x) to
the
Holders of the Class M-9 Certificates, the Class M-9 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced
to zero;
(xi) to
the
Holders of the Class M-10 Certificates, the Class M-10 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced
to zero;
and
(xii) to
the
Holders of the Class M-11 Certificates, the Class M-11 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced
to
zero.
With
respect to the Class A Certificates, all principal distributions will
be
distributed sequentially to the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates and the Class A-4 Certificates,
in that
order, until their respective Certificate Principal Balances have been
reduced
to zero. Notwithstanding any provisions contained in this Agreement
to the
contrary, on any Distribution Date on which the aggregate Certificate
Principal
Balance of the Subordinate Certificates has been reduced to zero, all
distributions of principal to the Class A Certificates shall be distributed
concurrently to the Class A-1 Certificates, the Class A-2 Certificates,
the
Class A-3 Certificates and the Class A-4 Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class.
(e) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed
as
follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra
Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Cap Agreement and the Interest Rate Swap Agreement,
distributable to such Holders as part of the Principal Distribution
Amount, as
applicable, as described under Section 4.01(b) above;
(ii) sequentially,
to the Holders of the Class M-1 Certificates, Class M-2 Certificates,
Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class
M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class
M-9
Certificates, Class M-10 Certificates and Class M-11 Certificates,
in that
order, in each case first, in an amount equal to the Unpaid Interest
Shortfall
Amount allocable to such Certificates and second, in an amount equal
to the
Allocated Realized Loss Amount allocable to such Certificates;
(iii) to
the
Net WAC Rate Carryover Reserve Account, the amount of any Net WAC Rate
Carryover
Amounts, without taking into account amounts, if any, received under
the
Interest Rate Cap Agreement and the Interest Rate Swap Agreement;
(iv) to
the
Swap Provider, any Swap Termination Payments resulting from a Swap
Provider
Trigger Event;
(v) to
the
Holders of the Class CE Certificates, (a) the Monthly Interest Distributable
Amount and any Overcollateralization Release Amount for such Distribution
Date
and (b) on any Distribution Date on which the aggregate Certificate
Principal
Balance of the Class A Certificates and the Mezzanine Certificates
has been
reduced to zero, any remaining amounts in reduction of the Certificate
Principal
Balance of the Class CE Certificates, until the Certificate Principal
Balance
thereof has been reduced to zero;
(vi) if
such
Distribution Date follows the Prepayment Period during which occurs
the latest
date on which a Prepayment Charge may be required to be paid in respect
of any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction
of the
Certificate Principal Balance thereof, until the Certificate Principal
Balance
thereof is reduced to zero; and
(vii) any
remaining amounts to the Holders of the Residual Certificates (in respect
of the
appropriate Class R Interest).
Without
limiting the provisions of Section 9.01(b), by acceptance of the Residual
Certificates the Holders of the Residual Certificates agree, and it
is the
understanding of the parties hereto, that for so long as any of the
notes issued
pursuant to the Indenture are outstanding or any amounts are reimbursable
or
payable to the NIMS Insurer in accordance with the terms of the Indenture,
to
pledge their rights to receive any amounts otherwise distributable
to the
Holders of the Class R Certificates (and such rights are hereby assigned
and
transferred) to the Holders of the Class CE Certificates.
(f) On
each
Distribution Date, after making the distributions of the Available
Funds as set
forth above, the Trust Administrator will withdraw from the Net WAC
Rate
Carryover Reserve Account, to the extent of amounts remaining on deposit
therein, the amount of any Net WAC Rate Carryover Amount for such Distribution
Date and distribute such amount in the following order of priority:
(i)
concurrently, to the Class A Certificates, on a pro
rata
basis
based on the remaining Net WAC Rate Carryover Amount for each such
Class;
and
(ii) sequentially,
to the Class M-1 Certificates, Class M-2 Certificates, Class M-3 Certificates,
Class M-4 Certificates, Class M-5 Certificates, Class M-6 Certificates,
Class
M-7 Certificates, Class M-8 Certificates, Class M-9 Certificates, Class
M-10
Certificates and Class M-11 Certificates, in that order, the Net WAC
Rate
Carryover Amount for each such Class.
On
each
Distribution Date, the Trust Administrator shall withdraw any amounts
then on
deposit in the Distribution Account that represent (i) Prepayment Charges
collected by each Servicer and remitted to the Master Servicer in connection
with the Principal Prepayment of any of the Mortgage Loans, (ii) any
Originator
Prepayment Charge Payment Amounts or (iii) any Servicer Prepayment
Charge
Payment Amounts, and shall distribute such amounts to the Holders of
the Class P
Certificates. Such distributions shall not be applied to reduce the
Certificate
Principal Balance of the Class P Certificates.
Following
the foregoing distributions, an amount equal to the amount of Subsequent
Recoveries remitted to the Master Servicer shall be applied to increase
the
Certificate Principal Balance of the Class of Certificates with the
Highest
Priority up to the extent of such Realized Losses previously allocated
to that
Class of Certificates pursuant to Section 4.04. An amount equal to the
amount of any remaining Subsequent Recoveries shall be applied to increase
the
Certificate Principal Balance of the Class of Certificates with the
next Highest
Priority, up to the amount of such Realized Losses previously allocated
to that
Class of Certificates pursuant to Section 4.04. Holders of such
Certificates will not be entitled to any distribution in respect of
interest on
the amount of such increases for any Accrual Period preceding the Distribution
Date on which such increase occurs. Any such increases shall be applied
to the
Certificate Principal Balance of each Certificate of such Class in
accordance
with its respective Percentage Interest.
(g) On
or
before each Distribution Date, Net Swap Payments (whether payable to
the Swap
Provider or to the Supplemental Interest Trust Trustee), any Swap Termination
Payment owed to the Swap Provider not resulting from a Swap Provider
Trigger
Event pursuant to the Interest Rate Swap Agreement and any Swap Termination
Payments owed to the Supplemental Interest Trust Trustee will be deposited
by
the Swap Administrator into the Swap Account. On or before each Distribution
Date, pursuant to the Interest Rate Swap Agreement, the Trust Administrator
shall withdraw from amounts on deposit in the Swap Account (other than
amounts
representing Swap Termination Payments received by the Supplemental
Interest
Trust Trustee or Net Swap Payments received by the Supplemental Interest
Trust
Trustee) prior to any distribution to any Certificates and distribute
such
withdrawn amounts as follows:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant
to the
Interest Rate Swap Agreement for such Distribution Date;
(ii) to
the
Swap Provider, any Swap Termination Payment owed to the Swap Provider
not due to
a Swap Provider Trigger Event pursuant to the Interest Rate Swap Agreement
and
to the extent not paid by the Trust Administrator (in its capacity
as
Supplemental Interest Trust Trustee) from any upfront payment received
pursuant
to any replacement interest rate swap agreement;
(h) On
each
Distribution Date, after making the distributions of the Available
Funds, Net
Monthly Excess Cashflow and amounts on deposit in the Net WAC Rate
Carryover
Reserve Account as set forth above, the Trust Administrator shall distribute
the
amount on deposit in the Swap Account as follows:
(i) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed after the distributions of the Interest Remittance Amount,
on a
pro rata basis based on such respective remaining Monthly Interest
Distributable
Amount and Unpaid Interest Shortfall Amount;
(ii) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class
M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates,
in that
order, the related Monthly Interest Distributable Amount and Unpaid
Interest
Shortfall Amount, to the extent remaining undistributed after the distributions
of the Interest Remittance Amount and the Net Monthly Excess
Cashflow;
(iii) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra
Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as
part of the
Principal Distribution Amount, remaining undistributed after distribution
of the
Net Monthly Excess Cashflow;
(iv) sequentially
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class
M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates,
in that
order, in each case up to the related Allocated Realized Loss Amount
related to
such Certificates for such Distribution Date remaining undistributed
after
distribution of the Net Monthly Excess Cashflow;
(v) concurrently,
to each Class of Class A Certificates, the Net WAC Rate Carryover Amount,
to the
extent remaining undistributed after distributions are made from the
Net WAC
Rate Carryover Reserve Account, on a pro rata basis based on such respective
Net
WAC Rate Carryover Amounts remaining; and
(vi) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class
M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates,
in that
order, the Net WAC Rate Carryover Amount, to the extent remaining undistributed
after distributions are made from the Net WAC Rate Carryover Reserve
Account.
(i) On
each
Distribution Date, after making the distributions of the Available
Funds, Net
Monthly Excess Cashflow, amounts on deposit in the Net WAC Rate Carryover
Reserve Account and amounts on deposit in the Swap Account as set forth
above,
the Trust Administrator shall distribute the amount on deposit in the
Cap
Account as follows:
(1) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed after the distributions of the Interest Remittance Amount,
on a
pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount
and
Unpaid Interest Shortfall Amount;
(2) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class
M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates,
in that
order, the related Monthly Interest Distributable Amount and Unpaid
Interest
Shortfall Amount, to the extent remaining undistributed after the distributions
of the Interest Remittance Amount and the Net Monthly Excess
Cashflow;
(3) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra
Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as
part of the
Principal Distribution Amount, remaining undistributed after distribution
of the
Net Monthly Excess Cashflow;
(4) sequentially
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class
M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates,
in that
order, in each case up to the related Allocated Realized Loss Amount
related to
such Certificates for such Distribution Date remaining undistributed
after
distribution of the Net Monthly Excess Cashflow;
(5) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, to the extent remaining undistributed after distributions are
made from
the Net WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(6) sequentially,
to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class
M-6, Class
M-7, Class M-8, Class M-9, Class M-10 and Class M-11 Certificates,
in that
order, the related Net WAC Rate Carryover Amount, to the extent remaining
undistributed after distributions are made from the Net WAC Rate Carryover
Reserve Account; and
(7) any
remaining amount to the Holders of the Class CE Certificates.
(j) Distributions
made with respect to each Class of Certificates on each Distribution
Date shall
be allocated pro
rata
among
the outstanding Certificates in such Class based on their respective
Percentage
Interests. Distributions in respect of each Class of Certificates on
each
Distribution Date will be made to the Holders of the respective Class
of record
on the related Record Date (except as otherwise provided in Section 4.01(d)
or Section 9.01 respecting the final distribution on such Class), based on
the aggregate Percentage Interest represented by their respective Certificates,
and shall be made by wire transfer of immediately available funds to
the account
of any such Holder at a bank or other entity having appropriate facilities
therefor, if such Holder shall have so notified the Trust Administrator
in
writing at least five Business Days prior to the Record Date immediately
prior
to such Distribution Date and is the registered owner of Certificates
having an
initial aggregate Certificate Principal Balance or Notional Amount
that is in
excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the initial
Certificate Principal Balance or Notional Amount of such Class of Certificates,
or otherwise by check mailed by first class mail to the address of
such Holder
appearing in the Certificate Register. The final distribution on each
Certificate will be made in like manner, but only upon presentment
and surrender
of such Certificate at the Corporate Trust Office of the Trust Administrator
or
such other location specified in the notice to Certificateholders of
such final
distribution.
Each
distribution with respect to a Book-Entry Certificate shall be paid
to the
Depository, as Holder thereof, and the Depository shall be responsible
for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to
the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing
funds
to the Certificate Owners that it represents. None of the Trustee,
the Trust
Administrator, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement
or
applicable law.
(k) The
rights of the Certificateholders to receive distributions in respect
of the
Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Agreement. None of the Holders of any
Class of
Certificates, the Trustee, the Trust Administrator or the Master Servicer
shall
in any way be responsible or liable to the Holders of any other Class
of
Certificates in respect of amounts properly previously distributed
on the
Certificates.
(l) Except
as
otherwise provided in Section 9.01, whenever the Trust Administrator
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Trust Administrator
shall, no
later than three (3) days before the related Distribution Date, mail
to each
Holder on such date of such Class of Certificates a notice to the effect
that:
(i) the
Trust
Administrator expects that the final distribution with respect to such
Class of
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Trust Administrator
therein specified, and
(ii) no
interest shall accrue on such Certificates from and after the end of
the related
Accrual Period.
Any
funds
not distributed to any Holder or Holders of Certificates of such Class
on such
Distribution Date because of the failure of such Holder or Holders
to tender
their Certificates shall, on such date, be set aside and held in trust
by the
Trust Administrator and credited to the account of the appropriate
non-tendering
Holder or Holders. If any Certificates as to which notice has been
given
pursuant to this Section 4.01(e) shall not have been surrendered for
cancellation within six months after the time specified in such notice,
the
Trust Administrator shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation
in order to
receive the final distribution with respect thereto. If within one
year after
the second notice all such Certificates shall not have been surrendered
for
cancellation, the Trust Administrator shall, directly or through an
agent, mail
a final notice to the remaining non-tendering Certificateholders concerning
surrender of their Certificates but shall continue to hold any remaining
funds
for the benefit of non-tendering Certificateholders. The costs and
expenses of
maintaining the funds in trust and of contacting such Certificateholders
shall
be paid out of the assets remaining in the Trust Fund. If within one
year after
the final notice any such Certificates shall not have been surrendered
for
cancellation, the Trust Administrator shall pay to UBS Securities LLC
all such
amounts, and all rights of non-tendering Certificateholders in or to
such
amounts shall thereupon cease. No interest shall accrue or be payable
to any
Certificateholder on any amount held in trust by the Trust Administrator
as a
result of such Certificateholder’s failure to surrender its Certificate(s) for
final payment thereof in accordance with this Section 4.01(d). Any such
amounts held in trust by the Trust Administrator shall be held in an
Eligible
Account and the Trust Administrator may direct any depository institution
maintaining such account to invest the funds in one or more Permitted
Investments. All income and gain realized from the investment of funds
deposited
in such accounts held in trust by the Trust Administrator shall be
for the
benefit of the Trust Administrator; provided, however, that the Trust
Administrator shall deposit in such account the amount of any loss
of principal
incurred in respect of any such Permitted Investment made with funds
in such
accounts immediately upon the realization of such loss.
(m) Notwithstanding
anything to the contrary herein, (i) in no event shall the Certificate
Principal
Balance of a Class A Certificate or a Mezzanine Certificate be reduced
more than
once in respect of any particular amount both (a) allocated to such
Certificate
in respect of Realized Losses pursuant to Section 4.04 and (b) distributed
to the Holder of such Certificate in reduction of the Certificate Principal
Balance thereof pursuant to this Section 4.01 from Net Monthly Excess
Cashflow and (ii) in no event shall the Uncertificated Balance of a
REMIC I
Regular Interest be reduced more than once in respect of any particular
amount
both (a) allocated to such REMIC I Regular Interest in respect of Realized
Losses pursuant to Section 4.04 and (b) distributed on such REMIC I Regular
Interest in reduction of the Uncertificated Balance thereof pursuant
to this
Section 4.01.
| SECTION 4.02. |
Statements
to Certificateholders.
|
On
each
Distribution Date, based (in part), as applicable, on information provided
to
the Trust Administrator by the Master Servicer (which in turn shall
be based (in
part), as applicable, on information provided to the Master Servicer
by each
Servicer), the Trust Administrator shall prepare and make available
to each
Holder of the Regular Certificates, the Credit Risk Manager, the other
parties
hereto and the Rating Agencies, a statement as to the distributions
to be made
on such Distribution Date containing the following information:
(i) the
amount of the distribution made on such Distribution Date to the Holders
of the
Certificates of each Class allocable to principal, and the amount of
the
distribution made on such Distribution Date to the Holders of the Class
P
Certificates allocable to Prepayment Charges, Originator Prepayment
Charge
Payment Amounts and Servicer Prepayment Charge Payment Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders
of the
Certificates of each Class allocable to interest;
(iii) the
fees
and expenses of the Trust accrued and paid on such Distribution Date
and to whom
such fees and expenses were paid;
(iv) the
aggregate amount of Advances for such Distribution Date (including
the general
purpose of such Advances);
(v) the
aggregate Stated Principal Balance of the Mortgage Loans and any REO
Properties
as of the last day of the related Due Period;
(vi) the
number, aggregate Stated Principal Balance, weighted average remaining
term to
maturity and weighted average Mortgage Rate of the Mortgage Loans as
of the
related Due Date;
(vii) the
number and aggregate unpaid Principal Balance of Mortgage Loans (a)
delinquent
30 to 59 days, (b) delinquent 60 to 89 days, (c) delinquent 90 or more
days, in
each case, as of the last day of the preceding calendar month, not
including
Liquidated Mortgage Loans as of the end of the related Prepayment Period,
(d) as
to which foreclosure proceedings have been commenced and (e) with respect
to
which the related Mortgagor has filed for protection under applicable
bankruptcy
laws, with respect to whom bankruptcy proceedings are pending or with
respect to
whom bankruptcy protection is in force and with respect to (a), (b)
and (c)
above, delinquencies shall be determined by and reported utilizing
the OTS
methodology;
(viii) the
total
number and cumulative principal balance of all REO Properties as of
the close of
business on the last day of the preceding Prepayment Period;
(ix) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(x) the
Delinquency Percentage;
(xi) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, which will include the aggregate amount of Subsequent Recoveries
received during the related Prepayment Period and the aggregate amount
of
Realized Losses incurred since the Closing Date, which will include
the
cumulative amount of Subsequent Recoveries received since the Closing
Date;
(xii) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from
the
Collection Account or the Distribution Account for such Distribution
Date;
(xiii) the
aggregate Certificate Principal Balance and Notional Amount, as applicable,
of
each Class of Certificates, before and after giving effect to the distributions,
and allocations of Realized Losses, made on such Distribution Date,
separately
identifying any reduction thereof due to allocations of Realized
Losses;
(xiv) the
Certificate Factor for each such Class of Certificates applicable to
such
Distribution Date;
(xv) the
Monthly Interest Distributable Amount in respect of the Class A Certificates,
the Mezzanine Certificates and the Class CE Certificates for such Distribution
Date and the Unpaid Interest Shortfall Amount, if any, with respect
to the Class
A Certificates and the Mezzanine Certificates on such Distribution
Date,
separately identifying any reduction thereof due to allocations of
Realized
Losses, Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls;
(xvi) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the related Servicer
or the
Master Servicer;
(xvii) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(xviii) the
Net
Monthly Excess Cashflow, the Overcollateralization Target Amount, the
Overcollateralized Amount, the Overcollateralization Deficiency Amount
and the
Credit Enhancement Percentage for such Distribution Date;
(xix) the
respective Pass-Through Rates applicable to the Class A Certificates,
the
Mezzanine Certificates and the Class CE Certificates for such Distribution
Date
(and whether such Pass-Through Rate was limited by the Net WAC
Rate);
(xx) the
Aggregate Loss Severity Percentage;
(xxi) whether
the Stepdown Date or a Trigger Event is in effect;
(xxii) the
total
cashflows received and the general sources thereof;
(xxiii) the
Available Funds;
(xxiv) the
Net
WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine
Certificates, if any, for such Distribution Date, the amount remaining
unpaid
after reimbursements therefor on such Distribution Date;
(xxv) payments,
if any, made under the Interest Rate Cap Agreement and the amount of
any Net
Swap Payments or Swap Termination Payments; and
(xxvi) unless
otherwise set forth in the Form 10-D relating to such Distribution
Date,
material modifications, extensions or waivers to Mortgage Loan terms,
fees,
penalties or payments during the preceding calendar month or that have
become
material over time and the aggregate number of Mortgage Loans which
have been
modified, waived or amended since the Closing Date; and
(xxvii) the
applicable Record Dates, Accrual Periods and Determination Dates for
calculating
distributions for such Distribution Date.
The
Trust
Administrator will make such statement (and, at its option, any additional
files
containing the same information in an alternative format) available
each month
to Certificateholders, the Master Servicer, each Servicer, the Depositor
and the
Rating Agencies via the Trust Administrator’s internet website. The Trust
Administrator’s internet website shall initially be located at
“▇▇▇.▇▇▇▇▇▇▇.▇▇▇”. Assistance in using the website can be obtained by calling
the Trust Administrator’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that
are unable to use the above distribution options are entitled to have
a paper
copy mailed to them via first class mail by calling the customer service
desk
and indicating such. The Trust Administrator shall have the right to
change the
way such statements are distributed in order to make such distribution
more
convenient and/or more accessible to the above parties and the Trust
Administrator shall provide timely and adequate notification to all
above
parties regarding any such changes. As a condition to access the Trust
Administrator’s internet website, the Trust Administrator may require
registration and the acceptance of a disclaimer. The Trust Administrator
will
not be liable for the dissemination of information in accordance with
this
Agreement. The Trust Administrator shall also be entitled to rely on
but shall
not be responsible for the content or accuracy of any information provided
by
third parties for purposes of preparing the distribution date statement
and may
affix thereto any disclaimer it deems appropriate in its reasonable
discretion
(without suggesting liability on the part of any other party
thereto).
In
the
case of information furnished pursuant to subclauses (i) through (iii)
above,
the amounts shall be expressed as a dollar amount per Single Certificate
of the
relevant Class.
Within
a
reasonable period of time after the end of each calendar year, the
Trust
Administrator shall, upon written request, forward to each Person who
at any
time during the calendar year was a Holder of a Regular Certificate
and the NIMS
Insurer a statement containing the information set forth in subclauses
(i)
through (iii) above, aggregated for such calendar year or applicable
portion
thereof during which such Person was a Certificateholder. Such obligation
of the
Trust Administrator shall be deemed to have been satisfied to the extent
that
substantially comparable information shall be provided by the Trust
Administrator pursuant to any requirements of the Code as from time
to time are
in force.
Within
a
reasonable period of time after the end of each calendar year, the
Trust
Administrator shall furnish to each Person who at any time during the
calendar
year was a Holder of a Residual Certificate and the NIMS Insurer a
statement
setting forth the amount, if any, actually distributed with respect
to the
Residual Certificates, as appropriate, aggregated for such calendar
year or
applicable portion thereof during which such Person was a
Certificateholder.
The
Trust
Administrator shall, upon request, furnish to each Certificateholder
and the
NIMS Insurer, during the term of this Agreement, such periodic, special,
or
other reports or information, whether or not provided for herein, as
shall be
reasonable with respect to the Certificateholder, or otherwise with
respect to
the purposes of this Agreement, all such reports or information to
be provided
at the expense of the Certificateholder in accordance with such reasonable
and
explicit instructions and directions as the Certificateholder may provide.
For
purposes of this Section 4.02, the Trust Administrator’s duties are limited
to the extent that the Master Servicer receives timely reports as required
from
each Servicer.
On
each
Distribution Date the Trust Administrator shall provide Intex Solutions,
Inc.
and Bloomberg Financial Markets, L.P. (“Bloomberg”) CUSIP level factors for each
class of Certificates as of such Distribution Date, using a format
and media
mutually acceptable to the Trust Administrator and Bloomberg.
(b)For
each
Distribution Date, through and including the Distribution Date in December
2006,
the Trust Administrator shall calculate on each Significance Percentage
Calculation Date the Significance Percentage of the Interest Rate Swap
Agreement. If on any such Distribution Date, the Significance Percentage
is
equal to or greater than 9%, the Trust Administrator shall promptly
notify the
Depositor and the Depositor shall obtain the financial information
required to
be delivered by the Swap Provider pursuant to the terms of the Interest
Rate
Swap Agreement. If, on any succeeding Distribution Date through and
including
the Distribution Date in December 2006, the Significance Percentage
is equal to
or greater than 10%, the Trust Administrator shall promptly notify
the Depositor
and the Depositor shall, within 5 Business Days of such Distribution
Date,
deliver to the Trust Administrator the financial information provided
to it by
the Swap Provider for inclusion in the Form 10-D relating to such Distribution
Date. If on any Distribution Date after December 2006, the Significance
Percentage is greater than 10%, the Trust Administrator shall include
the
Significance Percentage on the statement to Certificateholders for
the related
Distribution Date.
The
Trust
Administrator shall calculate the Significance Percentage in accordance
with the
definition of “Significance Percentage” as set forth herein.
| SECTION 4.03. |
Remittance
Reports, Advances.
|
(a) In
the
case of HomEq, as Servicer, on the 2nd Business Day following the Determination
Date, but in no event later than noon on the 18th calendar day (or,
if such 18th
day is not a Business Day (other than a Saturday), then on the next
succeeding
Business Day, or, if such 18th day is a Saturday, then on the preceding
Business
Day), in the case of ▇▇▇▇▇ Fargo as Servicer, no later than the 10th
calendar
day (or, if such 10th day is not a Business Day (other than a Saturday),
then on
the next succeeding Business Day, or, if such 10th day is a Saturday,
then on
the preceding Business Day), each Servicer shall furnish to the Trust
Administrator, the NIMS Insurer and the Credit Risk Manager (subject
to the
related Credit Risk Management Agreement) a monthly remittance advice
(which
together with any supplemental reports is known as the “Remittance Report”) in a
format attached as Exhibit R-2 or in any other format as mutually agreed
to
between the related Servicer and the Trust Administrator, containing
such
information regarding the Mortgage Loans as is needed by the Trust
Administrator
to perform its duties as set forth in Section 4.01 and 4.02 hereof.
Such
Remittance Report will also include a delinquency report substantially
in the
form set forth in Exhibit R-1 and a realized loss report substantially
in the
form set forth in Exhibit R-3 (or in either case, such other format
as mutually
agreed to between the related Servicer and the Trust Administrator).
No later
than 3 Business Days after the 15th day of each calendar month, each
Servicer
shall furnish to the Trust Administrator a monthly report containing
such
information regarding prepayments in full on Mortgage Loans during
the
applicable Prepayment Period in a format as mutually agreed to between
the
related Servicer and the Trust Administrator.
(b) With
respect to any Mortgage Loan on which a Monthly Payment was due during
the
related Due Period and delinquent on the related Determination Date,
the amount
of each Servicer’s Advance will be equal to the Monthly Payment (net of the
related Servicing Fee) that would have been due on the related Due
Date in
respect of the related Mortgage Loan. With respect to each REO Property,
which
REO Property was acquired during or prior to the related Prepayment
Period and
as to which such REO Property an REO Disposition did not occur during
the
related Prepayment Period, an amount equal to the excess, if any, of
the Monthly
Payment (net of the related Servicing Fee) that would have been due
on the
related Due Date in respect of the related Mortgage Loan, over the
net income
from such REO Property deposited in the Collection Account pursuant
to Section
3.23 for distribution on such Distribution Date.
On
the
Servicer Remittance Date, each Servicer shall remit in immediately
available
funds to the Trust Administrator for deposit in the Distribution Account
an
amount equal to the aggregate amount of Advances, if any, to be made
in respect
of the Mortgage Loans for the related Distribution Date either (i)
from its own
funds or (ii) from the Collection Account, to the extent of funds held
therein
for future distribution (in which case it will cause to be made an
appropriate
entry in the records of the Collection Account that amounts held for
future
distribution have been, as permitted by this Section 4.03, used by
the related
Servicer in discharge of any such Advance) or (iii) in the form of
any
combination of (i) and (ii) aggregating the total amount of Advances
to be made
by the related Servicer with respect to the Mortgage Loans. Any amounts
held for
future distribution used by a Servicer to make a Advance as permitted
in the
preceding sentence shall be appropriately reflected in the related
Servicer’s
records and replaced by the related Servicer by deposit in the Collection
Account on or before any future Servicer Remittance Date to the extent
that the
Available Funds for the related Distribution Date (determined without
regard to
Advances to be made on the Servicer Remittance Date) shall be less
than the
total amount that would be distributed to the Certificateholders pursuant
to
Section 4.01 on such Distribution Date if such amounts held for future
distributions had not been so used to make Advances. The Trust Administrator
will provide notice to the applicable Servicer and the NIMS Insurer
by telecopy
by the close of business on the Servicer Remittance Date in the event
that the
amount remitted by the related Servicer to the Trust Administrator
on such date
is less than the Advances required to be made by the related Servicer
for the
related Distribution Date.
(c) The
obligation of each Servicer to make such Advances is mandatory, notwithstanding
any other provision of this Agreement but subject to (d) below, and,
with
respect to any Mortgage Loan or REO Property, shall continue until
a Final
Recovery Determination in connection therewith or the removal thereof
from the
Trust Fund pursuant to any applicable provision of this Agreement,
except as
otherwise provided in this Section. With respect however to Balloon
Mortgage
Loans, no Servicer shall be required to make any Advances covering
the Balloon
Payment.
(d) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall
be
required to be made hereunder by any Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance or Nonrecoverable
Servicing Advance, respectively. The determination by the a Servicer
that it has
made a Nonrecoverable Advance or a Nonrecoverable Servicing Advance
or that any
proposed Advance or Servicing Advance, if made, would constitute a
Nonrecoverable Advance or Nonrecoverable Servicing Advance, respectively,
shall
be evidenced by a certification of a Servicing Officer delivered to
the Trust
Administrator (whereupon, upon receipt of such certification, the Trust
Administrator shall forward a copy of such certification to the Depositor,
the
Trustee, the NIMS Insurer and the Credit Risk Manager). Notwithstanding
the
foregoing, if following the application of Liquidation Proceeds on
any Mortgage
Loan that was the subject of a Final Recovery Determination, any Servicing
Advance with respect to such Mortgage Loan shall remain unreimbursed
to the
related Servicer, then without limiting the provisions of Section 3.11(a),
a
certification of a Servicing Officer regarding such Nonrecoverable
Servicing
Advance shall not be required to be delivered by the related Servicer
to the
Trust Administrator.
(e) In
the
event a Servicer fails to make any Advance required to be made by it
pursuant to
this Section 4.03 and such failure is not remedied within the applicable
cure
period pursuant to Section 7.01(a), then, pursuant to Section 7.01(a),
the
related Servicer will be terminated, and, in accordance with Sections
7.01(a)
and 7.02, the Master Servicer or (if the Master Servicer is the Servicer)
the
Trustee (in its respective capacity as successor servicer) or another
successor
servicer shall be required to make such Advance on the Distribution
Date with
respect to which the applicable Servicer was required to make such
Advance,
subject to the Master Servicer’s or the Trustee’s (or other successor
servicer’s) determination of recoverability. Each Servicer, the Master Servicer
or the Trustee, as applicable (or other successor servicer) shall not
be
required to make any Advance to cover any Relief Act Interest Shortfall
on any
Mortgage Loan or shortfalls relating to bankruptcy proceedings. If
the Master
Servicer or the Trustee, as applicable (or other successor servicer)
is required
to make any Advances, such advances may be made by it in the manner
set forth
under subsection 4.03(b) above.
| SECTION 4.04. |
Allocation
of Realized Losses.
|
(a) Prior
to
each Distribution Date, each Servicer shall determine as to each Mortgage
Loan
and REO Property: (i) the total amount of Realized Losses, if any,
incurred in
connection with any Final Recovery Determinations made during the related
Prepayment Period; (ii) whether and the extent to which such Realized
Losses
constituted Bankruptcy Losses; and (iii) the respective portions of
such
Realized Losses allocable to interest and allocable to principal. Prior
to each
Distribution Date, each Servicer shall also determine as to each Mortgage
Loan:
(A) the total amount of Realized Losses, if any, incurred in connection
with any
Deficient Valuations made during the related Prepayment Period; and
(B) the
total amount of Realized Losses, if any, incurred in connection with
Debt
Service Reductions in respect of Monthly Payments due during the related
Due
Period. The information described in the two preceding sentences that
is to be
supplied by each Servicer shall be either included in the related Remittance
Report or evidenced by an Servicing Officer certification delivered
to the Trust
Administrator by the related Servicer not later than the 18th of the
calendar
month in which such Distribution Date occurs (or, if such 18th day
is not a
Business Day (other than a Saturday), then on the next succeeding Business
Day,
or, if such 18th day is a Saturday, then on the preceding Business
Day),
immediately following the end of (x) in the case of Bankruptcy Losses
allocable
to interest, the Due Period during which any such Realized Loss was
incurred,
and (y) in the case of all other Realized Losses, the Prepayment Period
during
which any such Realized Loss was incurred.
(b) All
Realized Losses on the Mortgage Loans shall be allocated by the Trust
Administrator on each Distribution Date as follows: first, to Net Monthly
Excess
Cashflow; second, to Net Swap Payments received under the Interest
Rate Swap
Agreement, third, to payments received under the Interest Rate Cap
Agreement,
fourth, to the Class CE Certificates, until the Certificate Principal
Balance
thereof has been reduced to zero; fifth, to the Class M-11 Certificates,
until
the Certificate Principal Balance thereof has been reduced to zero;
sixth, to
the Class M-10 Certificates, until the Certificate Principal Balance
thereof has
been reduced to zero; seventh, to the Class M-9 Certificates, until
the
Certificate Principal Balance thereof has been reduced to zero; eighth,
to the
Class M-8 Certificates, until the Certificate Principal Balance thereof
has been
reduced to zero; ninth, to the Class M-7 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; tenth, to the Class
M-6
Certificates, until the Certificate Principal Balance thereof has been
reduced
to zero; eleventh, to the Class M-5 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; twelfth, to the
Class M-4
Certificates, until the Certificate Principal Balance thereof has been
reduced
to zero; thirteenth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; fourteenth, to
the Class M-2
Certificates, until the Certificate Principal Balance thereof has been
reduced
to zero; and fifteenth, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All Realized Losses
to be
allocated to the Certificate Principal Balances of all Classes on any
Distribution Date shall be so allocated after the actual distributions
to be
made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Certificates shall be to the Certificate
Principal Balance of such Class immediately prior to the relevant Distribution
Date, before reduction thereof by any Realized Losses, in each case
to be
allocated to such Class of Certificates, on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate on any Distribution
Date shall be made by reducing the Certificate Principal Balance thereof
by the
amount so allocated; any allocation of Realized Losses to a Class CE
Certificate
shall be made by reducing the amount otherwise payable in respect thereof
pursuant to Section 4.01(a)(5)(iv). No allocations of any Realized Losses
shall be made to the Certificate Principal Balances of the Class A
Certificates
or the Class P Certificates.
As
used
herein, an allocation of a Realized Loss on a “pro
rata
basis”
among two or more specified Classes of Certificates means an allocation
on a
pro
rata
basis,
among the various Classes so specified, to each such Class of Certificates
on
the basis of their then outstanding Certificate Principal Balances
prior to
giving effect to distributions to be made on such Distribution Date.
All
Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the Certificates of such Class in
proportion
to the Percentage Interests evidenced thereby.
(c) With
respect to the REMIC I Regular Interests, all Realized Losses on the
Mortgage
Loans shall be allocated by the Trust Administrator on each Distribution
Date
first, to REMIC I Regular Interest I until the Uncertificated Balance
has been
reduced to zero and then to REMIC I Regular Interest I-1-A through
I-60-B,
starting with the lowest numerical denomination until the Uncertificated
Balance
of each such REMIC I Regular Interest is reduced to zero, provided
that, for
REMIC I Regular Interests with the same numerical denomination, such
Realized
Losses shall be allocated pro rata between such REMIC I Regular
Interests.
(d) With
respect to the REMIC II Regular Interests, all Realized Losses on the
Mortgage
Loans shall be allocated by the Trust Administrator on each Distribution
Date to
the following REMIC II Regular Interests in the specified percentages,
as
follows: first, to Uncertificated Interest payable to the REMIC II
Regular
Interest II-LTAA and REMIC II Regular Interest II-LTZZ up to an aggregate
amount
equal to the REMIC II Interest Loss Allocation Amount, 98% and 2%,
respectively;
second, to the Uncertificated Balances of the REMIC II Regular Interest
II-LTAA
and REMIC II Regular Interest II-LTZZ up to an aggregate amount equal
to the
REMIC II Principal Loss Allocation Amount, 98% and 2%, respectively;
third, to
the Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC
II
Regular Interest II-LTM11 and REMIC II Regular Interest II-LTZZ, 98%,
1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular
Interest
II-LTM11 has been reduced to zero; fourth, to the Uncertificated Balances
of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM10
and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM10 has been
reduced to
zero; fifth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTM9 and REMIC II Regular Interest
II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC
II Regular Interest II-LTM9 has been reduced to zero; sixth, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC
II Regular
Interest II-LTM8 and REMIC II Regular Interest II-LTZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Balance of REMIC II Regular
Interest
II-LTM8 has been reduced to zero; seventh, to the Uncertificated Balances
of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM7
and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM7 has been
reduced to
zero; eighth, to the Uncertificated Balances of REMIC II Regular Interest
II-LTAA, REMIC II Regular Interest II-LTM6 and REMIC II Regular Interest
II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC
II Regular Interest II-LTM6 has been reduced to zero; ninth, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC
II Regular
Interest II-LTM5 and REMIC II Regular Interest II-LTZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Balance of REMIC II Regular
Interest
II-LTM5 has been reduced to zero; tenth, to the Uncertificated Balances
of REMIC
II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM4 and
REMIC II
Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC II Regular Interest II-LTM4 has been reduced to zero;
eleventh,
to the Uncertificated Balances of REMIC II Regular Interest II-LTAA,
REMIC II
Regular Interest II-LTM3 and REMIC II Regular Interest II-LTZZ, 98%,
1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular
Interest
II-LTM3 has been reduced to zero; twelfth, to the Uncertificated Balances
of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM2
and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM2 has been
reduced to
zero; and thirteenth, to the Uncertificated Balances of REMIC II Regular
Interest II-LTAA, REMIC II Regular Interest II-LTM1 and REMIC II Regular
Interest II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance
of REMIC II Regular Interest II-LTM1 has been reduced to zero.
| SECTION 4.05. |
Compliance
with Withholding Requirements.
|
Notwithstanding
any other provision of this Agreement, the Trust Administrator shall
comply with
all federal withholding requirements respecting payments to Certificateholders
of interest or original issue discount that the Trust Administrator
reasonably
believes are applicable under the Code. The consent of Certificateholders
shall
not be required for such withholding. In the event the Trust Administrator
does
withhold any amount from interest or original issue discount payments
or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trust Administrator shall indicate the amount withheld
to such
Certificateholders.
| SECTION 4.06. |
Exchange
Commission Filings; Additional
Information.
|
(a) (i)
Within 15 days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Trust Administrator shall, in accordance
with
industry standards, prepare and file with the Commission via the Electronic
Data
Gathering and Retrieval System (“▇▇▇▇▇”), a distribution report on Form 10-D,
signed by the Master Servicer, with a copy of the Monthly Statement
to be
furnished by the Trust Administrator to the Certificateholders for
such
Distribution Date attached thereto. Any disclosure in addition to the
Monthly
Statement that is required to be included on Form 10-D (“Additional Form 10-D
Disclosure”) shall be reported by the parties set forth on Exhibit P to the
Depositor and the Trust Administrator and directed and approved by
the Depositor
pursuant to the following paragraph, and the Trust Administrator will
have no
duty or liability for any failure hereunder to determine or prepare
any
Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit P hereto, within 5 calendar days after the related
Distribution
Date, (i) the parties described on Exhibit P shall be required to provide
to the
Trust Administrator and to the Depositor, to the extent known by a
Responsible
Officer thereof, in ▇▇▇▇▇-compatible format, or in such other format
as
otherwise agreed upon by the Trust Administrator and such party, the
form and
substance of any Additional Form 10-D Disclosure, if applicable, together
with
an Additional Disclosure Notification in the form of Exhibit Q hereto
and (ii)
the Depositor will approve, as to form and substance, or disapprove,
as the case
may be, the inclusion of the Additional Form 10-D Disclosure on Form
10-D. The
Trust Administrator has no duty under this Agreement to monitor or
enforce the
performance by the other parties listed on Exhibit P of their duties
under this
paragraph or proactively solicit or procure from such other parties
any
Additional Form 10-D Disclosure information. The Depositor will be
responsible
for any reasonable fees and expenses assessed or incurred by the Trust
Administrator in connection with including any Additional Form 10-D
Disclosure
on Form 10-D pursuant to this paragraph.
Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the
Exchange
Act during the preceding 12 months (or for such shorter period that
the
registrant was required to file such reports), and (2) has been subject
to such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Trust Administrator that the Depositor has filed all such required
reports
during the preceding 12 months and that it has been subject to such
filing
requirement for the past 90 days. The Depositor shall notify the Trust
Administrator in writing, no later than the fifth calendar day after
the related
Distribution Date with respect to the filing of a report on Form 10-D,
if the
answer to either question should be “no.” The Trust Administrator shall be
entitled to rely on such representations in preparing, executing and/or
filing
any such report.
After
preparing the Form 10-D, the Trust Administrator shall forward electronically
a
copy of the Form 10-D to the Depositor (provided that such Form 10-D
includes
any Additional Form 10-D Disclosure). Within two Business Days after
receipt of
such copy, but no later than the 12th
calendar
day after the Distribution Date, the Depositor shall notify the Trust
Administrator in writing (which may be furnished electronically) of
any changes
to or approval of such Form 10-D. In the absence of receipt of any
written
changes or approval, the Trust Administrator shall be entitled to assume
that
such Form 10-D is in final form and the Trust Administrator may proceed
with the
process for execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. If
a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to
be amended,
the Trust Administrator will follow the procedures set forth in Section
4.06(a)(vi). Promptly (but no later than one Business Day) after filing
with the
Commission, the Trust Administrator will make available on its internet
website
a final executed copy of each Form 10-D filed by the Trust Administrator.
Each
party to this Agreement acknowledges that the performance by each of
the Master
Servicer and the Trust Administrator of its duties under this Section
4.06(a)(ii) related to the timely preparation, execution and filing
of Form 10-D
is contingent upon such parties strictly observing all applicable deadlines
in
the performance of their duties under this Section 4.06(a)(ii). The
Depositor
acknowledges that the performance by each of the Master Servicer and
the Trust
Administrator of its respective duties under this Section 4.06(a)(ii)
related to
the preparation and execution of Form 10-D is also contingent upon
each
Servicer, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph
that are
applicable to the parties to this Agreement in the delivery to the
Trust
Administrator of any necessary Additional Form 10-D Disclosure. Neither
the
Master Servicer nor the Trust Administrator shall have any liability
for any
loss, expense, damage or claim arising out of or with respect to any
failure to
properly prepare or execute and/or timely file such Form 10-D, where
such
failure results from the Trust Administrator’s inability or failure to obtain or
receive, on a timely basis, any information from any other party hereto
or any
Servicing Function Participant needed to prepare, arrange for execution
or file
such Form 10-D, not resulting from its own negligence, bad faith or
willful
misconduct. Notwithstanding anything contained herein, the Trust Administrator
shall promptly notify the Depositor if a Form 10-D cannot be timely
filed prior
to the related filing deadline.
(iii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, the Trust Administrator shall prepare and file on behalf
of the Trust
a Form 8-K, as required by the Exchange Act, provided that the Depositor
shall
file the initial Form 8-K in connection with the issuance of the Certificates.
Any disclosure or information related to a Reportable Event or that
is otherwise
required to be included on Form 8-K (other than the initial Form 8-K)
(“Form 8-K
Disclosure Information”) shall be reported by the parties set forth on Exhibit P
and, pursuant to the following paragraph, directed and approved by
the
Depositor, and the Trust Administrator will have no duty or liability
for any
failure hereunder to determine or prepare any Form 8-K Disclosure Information
or
Form 8-K, except as set forth in the next paragraph.
As
set
forth on Exhibit P hereto, for so long as the Trust is subject to the
Exchange
Act reporting requirements, no later than close of business (New York
City time)
on the 2nd Business Day after the occurrence of a Reportable Event
(i) the
parties set forth on Exhibit P shall be required pursuant to Section
4.06(a)(v)
below to provide to the Trust Administrator and the Depositor, to the
extent
known by a Responsible Officer thereof, in ▇▇▇▇▇-compatible format,
or in such
other format as otherwise agreed upon by the Trust Administrator, the
Depositor
and such party, the form and substance of any Form 8-K Disclosure Information,
if applicable, together with an Additional Disclosure Notification
and (ii) the
Depositor will approve, as to form and substance, or disapprove, as
the case may
be, the inclusion of the Form 8-K Disclosure Information on Form 8-K.
The
Depositor will be responsible for any reasonable fees and expenses
assessed or
incurred by the Trust Administrator in connection with including any
Form 8-K
Disclosure Information on Form 8-K pursuant to this Section.
After
preparing the Form 8-K, the Trust Administrator shall forward electronically
a
copy of the Form 8-K to the Depositor. Promptly, but no later than
the close of
business on the third Business Day after the Reportable Event, the
Depositor
shall notify the Trust Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 8-K. In
the absence
of receipt of any written changes or approval, the Trust Administrator
shall be
entitled to assume that such Form 8-K is in final form and the Trust
Administrator may proceed with the process for execution and filing
of the Form
8-K. A duly authorized representative of the Master Servicer shall
sign each
Form 8-K. If a Form 8-K cannot be filed on time or if a previously
filed Form
8-K needs to be amended, the Trust Administrator will follow the procedures
set
forth in Section 4.06(a)(vi). Promptly (but no later than one Business
Day)
after filing with the Commission, the Trust Administrator will make
available on
its internet website a final executed copy of each Form 8-K filed by
the Trust
Administrator. The parties to this Agreement acknowledge that the performance
by
each of the Master Servicer and the Trust Administrator of its duties
under this
Section 4.06(a)(iii) related to the timely preparation, execution and
filing of
Form 8-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 4.06(a)(iii).
The Depositor acknowledges that the performance by each of the Master
Servicer
and the Trust Administrator of its duties under this Section 4.06(a)(iii)
related to the preparation, execution and filing of Form 8-K is also
contingent
upon each Servicer, the Custodian and any Servicing Function Participant
strictly observing deadlines no later than those set forth in this
paragraph
that are applicable to the parties to this Agreement in the delivery
to the
Trust Administrator of any necessary Form 8-K Disclosure Information.
Neither
the Master Servicer nor the Trust Administrator shall have any liability
for any
loss, expense, damage or claim arising out of or with respect to any
failure to
properly prepare, execute or timely file such Form 8-K, where such
failure
results from the Trust Administrator’s inability or failure to obtain or
receive, on a timely basis, any information from each Servicer, the
Custodian or
any Servicing Function Participant (other than any Servicing Function
Participant engaged by the Master Servicer or Trust Administrator)
needed to
prepare, arrange for execution or file such Form 8-K, not resulting
from its own
negligence, bad faith or willful misconduct. Notwithstanding anything
contained
herein, the Trust Administrator shall promptly notify the Depositor
if a Form
8-K cannot be timely filed prior to the related filing deadline.
(iv)
On
or
prior to the 90th day after the end of each fiscal year of the Trust
or such
earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”)
(it being understood that the fiscal year for the Trust ends on December
31st of
each year), commencing in March 2007, the Trust Administrator shall
prepare and
file on behalf of the Trust a Form 10-K, in form and substance as required
by
the Exchange Act. Each such Form 10-K shall include the following items,
in each
case to the extent they have been delivered to the Trust Administrator
within
the applicable time frames set forth in this Agreement:
(a) an
annual
compliance statement for each Servicer, the Master Servicer, the Trust
Administrator and any Servicing Function Participant engaged by such
parties
(each, a “Reporting
Servicer”)
as
described under Section 3.20 of this Agreement, provided,
however,
that
the Trust Administrator, at its discretion, may omit from the Form
10-K any
annual compliance statement that is not required to be filed with such
Form 10-K
pursuant to Regulation AB;
(b) (A)
the
annual reports on assessment of compliance with Servicing Criteria
for each
Reporting Servicer, as described under Section 3.21 of this Agreement
and (B) if
each Reporting Servicer’s report on assessment of compliance with Servicing
Criteria identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if each Reporting Servicer’s
report on assessment of compliance with Servicing Criteria is not included
as an
exhibit to such Form 10-K, disclosure that such report is not included
and an
explanation why such report is not included, provided,
however,
that
the Trust Administrator, at its discretion, may omit from the Form
10-K any
assessment of compliance or attestation report described in clause
(c) below
that is not required to be filed with such Form 10-K pursuant to Regulation
AB;
(c) (A)
the
registered public accounting firm attestation report for each Reporting
Servicer, as described under Section 3.21 of this Agreement and (B)
if any
registered public accounting firm attestation report identifies any
material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure
that such
report is not included and an explanation why such report is not included;
and
(d) a
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described in this Section 4.06(a)(iv).
Any
disclosure or information in addition to (a) through (d) above that
is required
to be included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported by the parties set forth on Exhibit P to the Depositor
and the Trust
Administrator and directed and approved by the Depositor pursuant to
the
following paragraph, and the Trust Administrator will have no duty
or liability
for any failure hereunder to determine or prepare any Additional Form
10-K
Disclosure, except as set forth in the next paragraph.
As
set
forth on Exhibit P hereto, no later than March 15th
(with no
cure period) of each year that the Trust is subject to the Exchange
Act
reporting requirements, commencing in 2007, (i) the parties described
on Exhibit
P shall be required to provide to the Trust Administrator and to the
Depositor,
to the extent known by a Responsible Officer thereof, in ▇▇▇▇▇-compatible
format, or in such other format as otherwise agreed upon by the Trust
Administrator and such party, the form and substance of any Additional
Form 10-K
Disclosure, if applicable, together with an Additional Disclosure Notification,
and (ii) the Depositor will approve, as to form and substance, or disapprove,
as
the case may be, the inclusion of the Additional Form 10-K Disclosure
on Form
10-K. The Trust Administrator has no duty under this Agreement to monitor
or
enforce the performance by the other parties listed on Exhibit P of
their duties
under this paragraph or proactively solicit or procure from such other
parties
any Additional Form 10-K Disclosure information. The Depositor will
be
responsible for any reasonable fees and expenses assessed or incurred
by the
Trust Administrator in connection with including any Additional Form
10-K
Disclosure on Form 10-K pursuant to this paragraph.
Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the
Exchange
Act during the preceding 12 months (or for such shorter period that
the
registrant was required to file such reports), and (2) has been subject
to such
filing requirements for the past 90 days.” The Depositor hereby represents to
the Trust Administrator that the Depositor has filed all such required
reports
during the preceding 12 months and that it has been subject to such
filing
requirement for the past 90 days. The Depositor shall notify the Trust
Administrator in writing, no later than March 15th with respect to
the filing of
a report on Form 10-K, if the answer to either question should be “no.” The
Trust Administrator shall be entitled to rely on such representations
in
preparing, executing and/or filing any such report.
After
preparing the Form 10-K, the Trust Administrator shall forward electronically
a
copy of the Form 10-K to the Depositor. Within three Business Days
after receipt
of such copy, but no later than March 25th, the Depositor shall notify
the Trust
Administrator in writing (which may be furnished electronically) of
any changes
to or approval of such Form 10-K. In the absence of receipt of any
written
changes or approval, the Trust Administrator shall be entitled to assume
that
such Form 10-K is in final form, and the Trust Administrator may proceed
with
the process for execution and filing of the Form 10-K. A senior officer
of the
Master Servicer in charge of the master servicing function shall sign
the Form
10-K. If a Form 10-K cannot be filed on time or if a previously filed
Form 10-K
needs to be amended, the Trust Administrator will follow the procedures
set
forth in Section 4.06(a)(vi). Promptly (but no later than one Business
Day)
after filing with the Commission, the Trust Administrator will make
available on
its internet website a final executed copy of each Form 10-K filed
by the Trust
Administrator. The parties to this Agreement acknowledge that the performance
by
each of the Master Servicer and the Trust Administrator of its duties
under this
Section 4.04(a)(iv) related to the timely preparation, execution and
filing of
Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 4.04(a)(iv),
Section 3.20 and Section 3.21. The Depositor acknowledges that the
performance
by each of the Master Servicer and the Trust Administrator of its duties
under
this Section 4.04(a)(iv) related to the timely preparation and execution
of Form
10-K is also contingent upon each Servicer, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those
set forth
in this paragraph that are applicable to the parties to this Agreement
in the
delivery to the Trust Administrator of any necessary Additional Form
10-K
Disclosure, any annual statement of compliance and any assessment of
compliance
and attestation pursuant to the related Servicing Agreement, the custodial
agreement or any other applicable agreement. Neither the Master Servicer
nor the
Trust Administrator shall have any liability for any loss, expense,
damage or
claim arising out of or with respect to any failure to properly prepare,
execute
and/or timely file such Form 10-K, where such failure results from
the Trust
Administrator’s inability or failure to obtain or receive, on a timely basis,
any information from each Servicer, the Custodian or any Servicing
Function
Participant needed to prepare, arrange for execution or file such Form
10-K, not
resulting from its own negligence, bad faith or willful misconduct.
Notwithstanding anything contained herein, the Trust Administrator
shall
promptly notify the Depositor if a Form 10-K cannot be timely filed
prior to the
related filing deadline.
Each
Form
10-K shall include a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, substantially in
the form set
forth in Exhibit J-1 attached hereto, required to be included therewith
pursuant
to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Each Servicer and the Trust Administrator
shall
provide, and each such party shall cause any Servicing Function Participant
engaged by it to provide, to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification (the “Certifying
Person”),
by
March 15th (with no cure period) of each year in which the Trust is
subject to
the reporting requirements of the Exchange Act and otherwise within
a reasonable
period of time upon request, a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit J-2, upon which the Certifying
Person, the
entity for which the Certifying Person acts as an officer, and such
entity’s
officers, directors and Affiliates (collectively with the Certifying
Person,
“Certification
Parties”)
can
reasonably rely. The senior officer of the Master Servicer in charge
of the
master servicing function shall serve as the Certifying Person on behalf
of the
Trust. Such officer of the Certifying Person can be contacted by e-mail
at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at ▇▇▇-▇▇▇-▇▇▇▇.
In the
event any such party or any Servicing Function Participant engaged
by such party
is terminated or resigns pursuant to the terms of this Agreement, or
any
applicable sub-servicing agreement, as the case may be, such party
shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section
4.06
(a)(iv) with respect to the period of time it was subject to this Agreement
or
any applicable sub-servicing agreement, as the case may be. Notwithstanding
the
foregoing, (i) the Master Servicer and the Trust Administrator shall
not be
required to deliver a Back-Up Certification to each other if both are
the same
Person and the Master Servicer is the Certifying Person and (ii) the
Master
Servicer shall not be obligated to sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
in the
event that it does not receive any Back-Up Certification required to
be
furnished to it pursuant to this section or any Servicing Agreement
or custodial
agreement.
(v)
With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trust Administrator’s obligation to
include such Additional Information in the applicable Exchange Act
report is
subject to its receipt of such information from the entity that is
indicated in
Exhibit P as the responsible party for providing such information,
if other than
the Trust Administrator, as and when required as described in Section
4.06(a)(ii) through (iv) above. Each of the Master Servicer, each Servicer
and
Depositor hereby agree to notify and to provide, to the extent known,
to the
Trust Administrator and the Depositor, all Additional Disclosure relating
to the
Trust Fund, with respect to which such party is the responsible party
for
providing that information, as indicated in Exhibit P hereof. The Swap
Provider
will be obligated pursuant to the Swap Agreement to provide to the
Trust
Administrator and the Depositor any information that may be required
to be
included in any Form 10-D, Form 8-K or Form 10-K. Each Servicer shall
be
responsible for determining the pool concentration applicable to any
related
Sub-Servicer or Originator at any time, for purposes of disclosure
as required
by Items 1108 and 1110 of Regulation AB.
(vi)
On
or
prior to January 30 of the first year in which the Trust Administrator
is able
to do so under applicable law, the Trust Administrator shall prepare
and file a
Form 15 Suspension Notification relating to the automatic suspension
of
reporting in respect of the Trust under the Exchange Act.
In
the
event that the Trust Administrator is unable to timely file with the
Commission
all or any required portion of any Form 8-K, Form 10-D or Form 10-K
required to
be filed pursuant to this Agreement because required disclosure information
was
either not delivered to it or was delivered to it after the delivery
deadlines
set forth in this Agreement or for any other reason, the Trust Administrator
will promptly electronically notify the Depositor. In the case of Form
10-D and
Form 10-K, the parties to this Agreement will cooperate to prepare
and file a
Form 12b-25 and a Form 10-D/A and Form 10-K/A as applicable, pursuant
to Rule
12b-25 of the Exchange Act. In the case of Form 8-K, the Trust Administrator
will, upon receipt of all required Form 8-K Disclosure Information
and upon the
approval and direction of the Depositor, include such disclosure information
on
the next Form 10-D. In the event that any previously filed Form 8-K,
Form 10-D
or Form 10-K needs to be amended in connection with any Additional
Form 10-D
Disclosure (other than, in the case of Form 10-D, for the purpose of
restating
any Monthly Statement), Additional Form 10-K Disclosure or Form 8-K
Disclosure
Information, the Trust Administrator will electronically notify the
Depositor
and such other parties to the transaction as are affected by such amendment,
and
such parties will cooperate to prepare any necessary Form 8-K/A, Form
10-D/A or
Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K,
Form 10-D or
Form 10-K shall be signed by a duly authorized representative, or senior
officer
in charge of master servicing, as applicable, of the Master Servicer.
The
parties to this Agreement acknowledge that the performance by each
of the Master
Servicer and the Trust Administrator of its duties under this Section
4.06(a)(vi) related to the timely preparation, execution and filing
of Form 15,
a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K
is contingent
upon each such party performing its duties under this Section. Neither
the
Master Servicer nor the Trust Administrator shall have any liability
for any
loss, expense, damage or claim arising out of or with respect to any
failure to
properly prepare, execute and/or timely file any such Form 15, Form
12b-25 or
any amendments to Form 8-K, Form 10-D or Form 10-K, where such failure
results
from the Trust Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from each Servicer, the Custodian or
any Servicing
Function Participant needed to prepare, arrange for execution or file
such Form
15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or Form 10-K,
not
resulting from its own negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trust Administrator, from
time to
time upon request, such further information, reports and financial
statements
within its control related to this Agreement, and the Mortgage Loans
as the
Trust Administrator reasonably deems appropriate to prepare and file
all
necessary reports with the Commission. The Trust Administrator shall
have no
responsibility to file any items other than those specified in this
Section
4.06; provided, however, the Trust Administrator will cooperate with
the
Depositor in connection with any additional filings with respect to
the Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees
and expenses
incurred by the Trust Administrator in connection with this Section
4.06 shall
not be reimbursable from the Trust Fund.
(b) The
Trust
Administrator shall indemnify and hold harmless the Depositor and its
officers,
directors and affiliates from and against any losses, damages, penalties,
fines,
forfeitures, reasonable and necessary legal fees and related costs,
judgments
and other costs and expenses arising out of or based upon (i) a breach
of the
Trust Administrator’s obligations under this Section 4.06 or the Trust
Administrator’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Annual
Statement
of Compliance and the Assessment of Compliance delivered by the Trust
Administrator pursuant to Section 3.20 and Section 3.21.
The
Depositor shall indemnify and hold harmless the Trust Administrator
and the
Master Servicer and their respective officers, directors and affiliates
from and
against any losses, damages, penalties, fines, forfeitures, reasonable
and
necessary legal fees and related costs, judgments and other costs and
expenses
arising out of or based upon a breach of the obligations of the Depositor
under
this Section 4.06 or the Depositor’s negligence, bad faith or willful misconduct
in connection therewith.
The
Master Servicer shall indemnify and hold harmless the Trust Administrator
and
the Depositor and their respective officers, directors and affiliates
from and
against any losses, damages, penalties, fines, forfeitures, reasonable
and
necessary legal fees and related costs, judgments and other costs and
expenses
arising out of or based upon (i) a breach of the obligations of the
Master
Servicer under this Section 4.06 or the Master Servicer’s negligence, bad faith
or willful misconduct in connection therewith or (ii) any material
misstatement
or omission in the Statement as to Compliance delivered by the Master
Servicer
pursuant to Section 3.20 or the Assessment of Compliance delivered
by the Master
Servicer pursuant to Section 3.21.
Each
Servicer shall indemnify and hold harmless the Master Servicer, Trust
Administrator and the Depositor and their respective officers, directors
and
affiliates from and against any losses, damages, penalties, fines,
forfeitures,
reasonable and necessary legal fees and related costs, judgments and
other costs
and expenses arising out of or based upon (i) a breach of its obligations
under
this Section 4.06 and (ii) any material misstatement or omission in
the Annual
Statement of Compliance delivered by it pursuant to Section 3.20 or
the
Assessment of Compliance delivered by it pursuant to Section 3.21.
Notwithstanding
the provisions set forth in this Agreement, no Servicer shall be obligated
to
provide any indemnification or reimbursement hereunder to any other
party for
any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and
related costs, judgments, and any other costs, fees and expenses that
any of
them may sustain which are indirect, consequential, punitive or special
in
nature.
If
the
indemnification provided for herein is unavailable or insufficient
to hold
harmless the Depositor, the Master Servicer or the Trust Administrator,
as
applicable, then the defaulting party, in connection with a breach
of its
respective obligations under this Section 4.06 or its respective negligence,
bad
faith or willful misconduct in connection therewith, agrees that it
shall
contribute to the amount paid or payable by the other parties as a
result of the
losses, claims, damages or liabilities of the other party in such proportion
as
is appropriate to reflect the relative fault and the relative benefit
of the
respective parties.
(c) Nothing
shall be construed from the foregoing subsections (a) and (b) to require
the
Trust Administrator or any officer, director or Affiliate thereof to
sign any
Form 10-K or any certification contained therein. Furthermore, the
inability of
the Trust Administrator to file a Form 10-K as a result of the lack
of required
information as set forth in Section 4.06(a) or required signatures
on such Form
10-K or any certification contained therein shall not be regarded as
a breach by
the Trust Administrator of any obligation under this Agreement.
(d) Notwithstanding
the provisions of Section 11.01, this Section 4.06 may be amended without
the
consent of the Certificateholders.
| SECTION 4.07. |
Net
WAC Rate Carryover Reserve Account.
|
No
later
than the Closing Date, the Trust Administrator shall establish and
maintain with
itself a separate, segregated trust account titled, “▇▇▇▇▇ Fargo Bank, N.A. as
Trust Administrator, in trust for the registered holders of MASTR Asset
Backed
Securities Trust 2006-HE4, Mortgage Pass-Through Certificates, Series
2006-HE4—Net WAC Rate Carryover Reserve Account.” All amounts deposited in the
Net WAC Rate Carryover Reserve Account shall be distributed to the
Holders of
the Class A Certificates and/or the Mezzanine Certificates in the manner
set
forth in Section 4.01.
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount
payable
to the Class A Certificates and/or the Mezzanine Certificates, the
Trust
Administrator has been directed by the Class CE Certificateholders
to, and
therefore will, deposit into the Net WAC Rate Carryover Reserve Account
the
amounts described in Section 4.01(e)(v), rather than distributing such
amounts to the Class CE Certificateholders. On each such Distribution
Date, the
Trust Administrator shall hold all such amounts for the benefit of
the Holders
of the Class A Certificates and the Mezzanine Certificates, and will
distribute
such amounts to the Holders of the Class A Certificates and/or the
Mezzanine
Certificates in the amounts and priorities set forth in
Section 4.01(a).
It
is the intention of the parties hereto that, for federal and state
income and
state and local franchise tax purposes, the Net WAC Rate Carryover
Reserve
Account be disregarded as an entity separate from the Holder of the
Class CE
Certificates unless and until the date when either (a) there is more
than one
Class CE Certificateholder or (b) any Class of Certificates in addition
to the
Class CE Certificates is recharacterized as an equity interest in the
Net WAC
Rate Carryover Reserve Account for federal income tax purposes, in
which case it
is the intention of the parties hereto that, for federal and state
income and
state and local franchise tax purposes, the Net WAC Rate Carryover
Reserve
Account be treated as a grantor trust;
provided, that the Trust Administrator shall not be required to prepare
and file
grantor trust tax returns in respect of such grantor trust unless it
receives
additional reasonable compensation (not to exceed $10,000 per year)
from the
Holders of the Class CE Certificates for the preparation of such filings,
written notification recognizing the creation of a grantor trust and
comparable
documentation evidencing the grantor trust, if any.
All
amounts deposited into the Net WAC Rate Carryover Reserve Account shall
be
treated as amounts distributed by REMIC III to the Holder of the Class
CE
Interest and by REMIC IV to the Holder of the Class CE Certificates.
The Net WAC
Rate Carryover Reserve Account will be an “outside reserve fund” within the
meaning of Treasury Regulation Section 1.860G-2(h). Upon the termination
of the
Trust, or the payment in full of the Class A and the Mezzanine Certificates,
all
amounts remaining on deposit in the Net WAC Rate Carryover Reserve
Account will
be released by the Trust and distributed to the Seller or its designee.
The Net
WAC Rate Carryover Reserve Account will be part of the Trust but not
part of any
REMIC and any payments to the Holders of the Class A and the Mezzanine
Certificates of Net WAC Rate Carryover Amounts will not be payments
with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class CE Certificate, each Class CE Certificateholder hereby
agrees
to direct the Trust Administrator, and the Trust Administrator hereby
is
directed, to deposit into the Net WAC Rate Carryover Reserve Account
the amounts
described above on each Distribution Date as to which there is any
Net WAC Rate
Carryover Amount rather than distributing such amounts to the Class
CE
Certificateholders. By accepting a Class CE Certificate, each Class
CE
Certificateholder further agrees that such direction is given for good
and
valuable consideration, the receipt and sufficiency of which is acknowledged
by
such acceptance. Amounts on deposit in the Net WAC Rate Carryover Reserve
Account shall remain uninvested.
| SECTION 4.08. |
Swap
Account.
|
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit: (i) the Interest Rate
Swap Agreement and (ii) the Swap Administration Agreement. The Supplemental
Interest Trust shall be maintained by the Supplemental
Interest Trust Trustee.
No
later than the Closing Date, the Supplemental Interest Trust Trustee
shall
establish and maintain with itself a separate, segregated trust account
titled,
“▇▇▇▇▇ Fargo Bank, N.A. as Supplemental Interest Trust Trustee, in trust
for the
registered holders of MASTR Asset Backed Securities Trust 2006-HE4,
Mortgage
Pass-Through Certificates, Series 2006-HE4—Swap Account.” Such account shall be
an Eligible Account and funds on deposit therein shall be held separate
and
apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Supplemental Interest Trust
Trustee held
pursuant to this Agreement. Amounts therein shall be held
uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the
Supplemental Interest Trust Trustee shall deposit into the Swap Account:
(i) the
amount of any Net Swap Payment or Swap Termination Payment (other than
any Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed
to the
Swap Provider (after taking into account any upfront payment received
from the
counterparty to a replacement interest rate swap agreement) from funds
collected
and received with respect to the Mortgage Loans prior to the determination
of
Available Funds and (ii) amounts received by the Supplemental Interest
Trust
Trustee from the Swap Provider, for distribution pursuant to the Swap
Administration Agreement, dated as of the Closing Date (the “Swap Administration
Agreement”), among ▇▇▇▇▇ Fargo Bank, N.A. in its capacity as Supplemental
Interest Trust Trustee, ▇▇▇▇▇ Fargo Bank, N.A. in its capacity as Swap
Administrator, ▇▇▇▇▇ Fargo Bank, N.A. in its capacity as Trust Administrator
and
the Seller.
(c) The
Supplemental Interest Trust will be an “outside reserve fund” within the meaning
of Treasury Regulation Section 1.860G-2(h). It
is the intention of the parties hereto that, for federal and state
income and
state and local franchise tax purposes, the Supplemental Interest Trust
be
disregarded as an entity separate from the Holder of the Class CE Certificates
unless and until the date when either (a) there is more than one Class
CE
Certificateholder or (b) any Class of Certificates in addition to the
Class CE
Certificates is recharacterized as an equity interest in the Supplemental
Interest Trust for federal income tax purposes, in which case it is
the
intention of the parties hereto that, for federal and state income
and state and
local franchise tax purposes, the Supplemental Interest Trust be treated
as a
grantor trust; provided,
that the Trust Administrator shall not be required to prepare and file
grantor
trust tax returns in respect of such grantor trust unless it receives
additional
reasonable compensation (not to exceed $10,000 per year) from the Holders
of the
Class CE Certificates for the preparation of such filings, written
notification
recognizing the creation of a grantor trust and comparable documentation
evidencing the grantor trust, if any.
(d) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Supplemental Interest Trust Trustee, any obligation
of the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
shall
be deemed to be an obligation of the Supplemental Interest Trust.
(e) The
Trust
Administrator shall treat the Holders of Certificates (other than the
Class P,
Class CE, Class R and Class R-X Certificates) as having entered into
a notional
principal contract with respect to the Holders of the Class CE Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class CE, Class R and Class R-X Certificates)
shall be
treated as having agreed to pay, on each Distribution Date, to the
Holder of the
Class CE Certificates an aggregate amount equal to the excess, if any,
of (i)
the amount payable on such Distribution Date on the REMIC III Regular
Interest
corresponding to such Class of Certificates over (ii) the amount payable
on such
Class of Certificates on such Distribution Date (such excess, a “Class IO
Distribution Amount”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the excess of (a) the amount of interest
otherwise
payable to such Certificates over (ii) the amount of interest payable
to such
Certificates at a per annum rate equal to the Net WAC Pass-Through
Rate, and a
Class IO Distribution Amount payable from principal collections shall
be
allocated to the most subordinate Class of Certificates with an outstanding
principal balance to the extent of such balance. In addition, pursuant
to such
notional principal contract, the Holder of the Class CE Certificates
shall be
treated as having agreed to pay Net WAC Rate Carryover Amounts to the
Holders of
the Certificates (other than the Class CE, Class P, Class R and Class
R-X
Certificates) in accordance with the terms of this Agreement. Any payments
to
the Certificates from amounts deemed received in respect of this notional
principal contract shall not be payments with respect to a Regular
Interest in a
REMIC within the meaning of Code Section 860G(a)(1). However, any payment
from
the Certificates (other than the Class CE, Class P, Class R and Class
R-X
Certificates) of a Class IO Distribution Amount shall be treated for
tax
purposes as having been received by the Holders of such Certificates
in respect
of their interests in REMIC III and as having been paid by such Holders
to the
Trust Administrator pursuant to the notional principal contract. Thus,
each
Certificate (other than the Class P, Class R and Class R-X Certificates)
shall
be treated as representing not only ownership of Regular Interests
in REMIC III
or REMIC IV, but also ownership of an interest in, and obligations
with respect
to, a notional principal contract.
| SECTION 4.09. |
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
For
federal income tax purposes, each holder of a Class A or Mezzanine
Certificate
is deemed to own an undivided beneficial ownership interest in a REMIC
regular
interest and the right to receive payments from either the Net WAC
Rate
Carryover Reserve Account or the Swap Account in respect of the Net
WAC Rate
Carryover Amount or the obligation to make payments to the Swap Account.
For
federal income tax purposes, the Trust Administrator will account for
payments
to each Class A and Mezzanine Certificates as follows: each Class A
and
Mezzanine Certificate will be treated as receiving their entire payment
from
REMIC III (regardless of any Swap Termination Payment or obligation
under the
Interest Rate Swap Agreement) and subsequently paying their portion
of any Swap
Termination Payments in respect of each such Class’ obligation under the
Interest Rate Swap Agreement. In the event that any such Class is resecuritized
in a REMIC, the obligation under the Interest Rate Swap Agreement to
pay any
such Swap Termination Payment (or any shortfall in Swap Provider Fee),
will be
made by one or more of the REMIC Regular Interests issued by the
resecuritization REMIC subsequent to such REMIC Regular Interest receiving
its
full payment from any such Class A or Mezzanine Certificate.
The
REMIC
regular interest corresponding to a Class A or Mezzanine Certificate
will be
entitled to receive interest and principal payments at the times and
in the
amounts equal to those made on the certificate to which it corresponds,
except
that (i) the maximum interest rate of that REMIC regular interest will
equal the
Net WAC Pass-Through Rate computed for this purpose by limiting the
Base
Calculation Amount of the Interest Rate Swap Agreement to the aggregate
Stated
Principal Balance of the Mortgage Loans and (ii) any Swap Termination
Payment
will be treated as being payable solely from Net Monthly Excess Cashflow.
As a
result of the foregoing, the amount of distributions and taxable income
on the
REMIC regular interest corresponding to a Class A or Mezzanine Certificate
may
exceed the actual amount of distributions on the Class A or Mezzanine
Certificate.
| SECTION 4.10. |
Cap
Account.
|
(a) No
later
than the Closing Date, the Trust Administrator shall establish and
maintain with
itself, a separate, segregated trust account titled, “▇▇▇▇▇ Fargo Bank, N.A. as
Supplemental Interest Trust Trustee, in trust for the registered holders
of
MASTR Asset Backed Securities Trust 2006-HE4, Mortgage Pass-Through
Certificates, Series 2006-HE4—Cap Account.” Such account shall be an Eligible
Account and amounts therein shall be held uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the
Trust
Administrator shall deposit into the Cap Account amounts received by
the Trust
Administrator under the Interest Rate Cap Agreement for distribution
in
accordance with Section 4.01(h) above.
(c) It
is the intention of the parties hereto that, for federal and state
income and
state and local franchise tax purposes, the Cap Account be disregarded
as an
entity separate from the Holder of the Class CE Certificates unless
and until
the date when either (a) there is more than one Class CE Certificateholder
or
(b) any Class of Certificates in addition to the Class CE Certificates
is
recharacterized as an equity interest in the Cap Account for federal
income tax
purposes, in which case it is the intention of the parties hereto that,
for
federal and state income and state and local franchise tax purposes,
the Cap
Account be treated as a grantor trust. The
Cap
Account will be an “outside reserve fund” within the meaning of Treasury
Regulation Section 1.860G-2(h). Upon the termination of the Trust Fund,
or the
payment in full of the Class A Certificates and the Mezzanine Certificates,
all
amounts remaining on deposit in the Cap Account shall be released by
the Trust
Fund and distributed to the Class CE Certificateholders or their designees.
The
Cap Account shall be part of the Trust Fund but not part of any Trust
REMIC and
any payments to the Holders of the Floating Rate Certificates of Net
WAC Rate
Carryover Amounts will not be payments with respect to a “regular interest” in a
REMIC within the meaning of Code Section 860(G)(a)(1).
It
is the
intention of the parties hereto that, for federal and state income
and state and
local franchise tax purposes, the Cap Account be disregarded as an
entity
separate from the Holder of the Class CE Certificates unless and until
the date
when either (a) there is more than one Holder of the Class CE Certificates
or
(b) any Class of Certificates in addition to the Class CE Certificates
is
recharacterized as an equity interest in the Cap Account for federal
income tax
purposes, in which case it is the intention of the parties hereto that,
for
federal and state income and state and local franchise tax purposes,
the Cap
Account be treated as a grantor trust, provided, that the Trust Administrator
shall not be required to prepare and file grantor trust tax returns
in respect
of such grantor trust unless it receives additional reasonable compensation
(not
to exceed $10,000 per year) from the Holders of the Class CE Certificates
for
the preparation of such filings, written notification recognizing the
creation
of a grantor trust and comparable documentation evidencing the grantor
trust, if
any.
(d) By
accepting a Class CE Certificate, each Class CE Certificateholder hereby
agrees
to direct the Trust Administrator, and the Trust Administrator is hereby
directed, to deposit into the Cap Account the amounts described above
on each
Distribution Date.
(e) For
federal income tax purposes, the Depositor shall provide the Trust
Administrator, no later than January 1, 2007, the value of the right
of the
Class A and Mezzanine Certificates to receive Net WAC Rate Carryover
Amounts
from the Net WAC Rate Carryover Reserve Account and the Swap
Account.
| SECTION 4.11. |
Collateral
Accounts.
|
(a) The
Trust
Administrator is hereby directed to perform the obligations of the
Custodian as
defined under the Interest Rate Cap Credit Support Annex (the “Interest Rate Cap
Custodian”). On or before the Closing Date, the Interest Rate Cap Custodian
shall establish an Interest Rate Cap Collateral Account. The Interest
Rate Cap
Collateral Account shall be held in the name of the Interest Rate Cap
Custodian
in trust for the benefit of the Certificateholders. The Interest Rate
Cap
Collateral Account must be an Eligible Account and shall be titled
“Interest
Rate Cap Collateral Account, ▇▇▇▇▇ Fargo Bank, N.A., as Interest Rate
Cap
Custodian for ▇▇▇▇▇ Fargo Bank, N.A. as Trust Administrator, in trust
for the
registered Certificateholders of MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates, Series 2006-HE4.”
The
Interest Rate Cap Custodian shall credit to Interest Rate Cap Collateral
Account
all collateral (whether in the form of cash or securities) posted by
the
Interest Rate Cap Provider to secure the obligations of the Interest
Rate Cap
Provider in accordance with the terms of the Interest Rate Cap Agreement.
Except
for investment earnings, the Interest Rate Cap Provider shall not have
any
legal, equitable or beneficial interest in the Interest Rate Cap Collateral
Account other than in accordance with this Agreement, the Interest
Rate Cap
Agreement and applicable law. The Interest Rate Cap Custodian shall
maintain and
apply all collateral and earnings thereon on deposit in the Interest
Rate Cap
Collateral Account in accordance with the Interest Rate Cap Credit
Support Annex
and this Agreement.
Cash
collateral posted by the Interest Rate Cap Provider in accordance with
the
Interest Rate Cap Credit Support Annex shall be invested in the ▇▇▇▇▇
Fargo
Advantage Prime Investment Money Market Fund, so long as such fund
is a
Permitted Investment, and such investment shall comply with the requirements
set
forth in the Interest Rate Cap Credit Support Annex. The Trust Administrator
shall not be liable for any losses incurred on such investment. All
amounts
earned on amounts on deposit in the Interest Rate Cap Collateral Account
(whether cash collateral or securities) shall be taxable to the Interest
Rate
Cap Provider.
Upon
the
occurrence of an Event of Default, a Termination Event, or an Additional
Termination Event (each as defined in the Interest Rate Cap Agreement),
amounts
in the Interest Rate Cap Collateral Account shall be withdrawn by the
Interest
Rate Cap Custodian and applied to the payment of any termination payment
due to
Party B (as defined in the Interest Rate Cap Agreement) in accordance
with the
Interest Rate Cap Credit Support Annex. Any excess amounts held in
such Interest
Rate Cap Collateral Account after payment of all amounts owing to Party
B under
the Interest Rate Cap Agreement shall be withdrawn from the Interest
Rate Cap
Collateral Account and paid to the Interest Rate Cap Provider in accordance
with
the Interest Rate Cap Credit Support Annex.
(b) The
Trust
Administrator (in its capacity as Supplemental Interest Trust Trustee)
is hereby
directed to perform the obligations of the Custodian as defined under
the Swap
Credit Support Annex (the “Swap Custodian”). On or before the Closing Date, the
Swap Custodian shall establish a Swap Collateral Account. The Swap
Collateral
Account shall be held in the name of the Swap Custodian in trust for
the benefit
of the Certificateholders. The Swap Collateral Account must be an Eligible
Account and shall be titled “Swap Collateral Account, ▇▇▇▇▇ Fargo Bank, N.A., as
Swap Custodian for ▇▇▇▇▇ Fargo Bank, N.A. as Trust Administrator, in
trust for
the registered Certificateholders of MASTR Asset Backed Securities
Trust
2006-HE4, Mortgage Pass-Through Certificates, Series 2006-HE4.”
The
Swap
Custodian shall credit to Swap Collateral Account all collateral (whether
in the
form of cash or securities) posted by the Swap Provider to secure the
obligations of the Swap Provider in accordance with the terms of the
Interest
Rate Swap Agreement. Except for investment earnings, the Swap Provider
shall not
have any legal, equitable or beneficial interest in the Swap Collateral
Account
other than in accordance with this Agreement, the Interest Rate Swap
Agreement
and applicable law. The Swap Custodian shall maintain and apply all
collateral
and earnings thereon on deposit in the Swap Collateral Account in accordance
with the Swap Credit Support Annex and this Agreement.
Cash
collateral posted by the Swap Provider in accordance with the Swap
Credit
Support Annex shall be invested in the ▇▇▇▇▇ Fargo Advantage Prime
Investment
Money Market Fund, so long as such fund is a Permitted Investment,
and such
investment shall comply with the requirements set forth in the Swap
Credit
Support Annex. The Trust Administrator shall not be liable for any
losses
incurred on such investment. All amounts earned on amounts on deposit
in the
Swap Collateral Account (whether cash collateral or securities) shall
be taxable
to the Swap Provider.
Upon
the
occurrence of an Event of Default, a Termination Event, or an Additional
Termination Event (each as defined in the Interest Rate Swap Agreement),
amounts
in the Swap Collateral Account shall be withdrawn by the Swap Custodian
and
applied to the payment of any termination payment due to Party B (as
defined in
the Interest Rate Swap Agreement) in accordance with the Swap Credit
Support
Annex. Any excess amounts held in such Swap Collateral Account after
payment of
all amounts owing to Party B under the Interest Rate Swap Agreement
shall be
withdrawn from the Swap Collateral Account and paid to the Swap Provider
in
accordance with the Swap Credit Support Annex.
| SECTION 4.12. |
Rights
and Obligations Under the Interest Rate Cap Agreement and the
Interest
Rate Swap Agreement.
|
(a) In
the
event that the Interest Rate Cap Provider fails to perform any of its
obligations under the Interest Rate Cap Agreement (including, without
limitation, its obligation to make any payment or transfer collateral),
or
breaches any of its representations and warranties thereunder, or in
the event
that any Event of Default, Termination Event, or Additional Termination
Event
(each as defined in the Interest Rate Cap Agreement) occurs with respect
to the
Interest Rate Cap Agreement, the Trust Administrator shall, promptly
following
actual notice of such failure, breach or event, notify the Depositor
and send
any notices and make any demands, on behalf of the Trust, required
to enforce
the rights of the Trust under the Interest Rate Cap Agreement.
In
the
event that the Interest Rate Cap Provider’s obligations are guaranteed by a
third party under a guaranty relating to the Interest Rate Cap Agreement
(such
guaranty the “Guaranty” and such third party the “Guarantor”), then to the
extent that the Interest Rate Cap Provider fails to make any payment
by the
close of business on the day it is required to make payment under the
terms of
the Interest Rate Cap Agreement, the Trust Administrator shall, promptly
following actual knowledge of the Interest Rate Cap Provider’s failure to pay,
demand that the Guarantor make any and all payments then required to
be made by
the Guarantor pursuant to such Guaranty; provided, that the Trust Administrator
shall in no event be liable for any failure or delay in the performance
by the
Interest Rate Cap Provider or any Guarantor of its obligations hereunder
or
pursuant to the Interest Rate Cap Agreement and the Guaranty, nor for
any
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits) in connection
therewith.
Upon
an
early termination of the Interest Rate Cap Agreement other than in
connection
with the optional termination of the Trust, the Trust Administrator,
at the
direction of the Depositor, will use reasonable efforts to appoint
a successor
interest rate cap provider to enter into a new Interest Rate Cap Agreement
on
terms substantially similar to the Interest Rate Cap Agreement, with
a successor
interest rate cap provider meeting all applicable eligibility requirements.
If
the Trust Administrator receives a termination payment from the Interest
Rate
Cap Provider in connection with such early termination, the Trust Administrator
will apply such termination payment to any upfront payment required
to appoint
the successor interest rate cap provider. If the Trust Administrator
is required
to pay a termination payment to the Interest Rate Cap Provider in connection
with such early termination, the Trust Administrator will apply any
upfront
payment received from the successor interest rate cap provider to pay
such
termination payment.
If
the
Trust Administrator is unable to appoint a successor interest rate
cap provider
within 30 days of the early termination, then the Trust Administrator
will
deposit any termination payment received from the original Interest
Rate Cap
Provider into a separate, non-interest bearing reserve account and
will, on each
subsequent Distribution Date, withdraw from the amount then remaining
on deposit
in such reserve account an amount equal to the payment, if any, that
would have
been paid to the Trust Administrator by the original Interest Rate
Cap Provider
calculated in accordance with the terms of the original Interest Rate
Cap
Agreement, and distribute such amount in accordance with the terms
of Section
4.01(i).
Upon
an
early termination of the Interest Rate Cap Agreement in connection
with the
optional termination of the Trust, if the Trust Administrator receives
a
termination payment from the Interest Rate Cap Provider, such termination
payment will be distributed in accordance with Section 4.01(i).
(b) In
the
event that the Swap Provider fails to perform any of its obligations
under the
Interest Rate Swap Agreement (including, without limitation, its obligation
to
make any payment or transfer collateral), or breaches any of its representations
and warranties thereunder, or in the event that any Event of Default,
Termination Event, or Additional Termination Event (each as defined
in the
Interest Rate Swap Agreement) occurs with respect to the Interest Rate
Swap
Agreement, the Trust Administrator (in its capacity as Supplemental
Interest
Trust Trustee) shall, promptly following actual notice of such failure,
breach
or event, notify the Depositor and send any notices and make any demands,
on
behalf of the Supplemental Interest Trust, required to enforce the
rights of the
Supplemental Interest Trust under the Interest Rate Swap Agreement.
In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to the Interest Rate Swap Agreement (such guaranty
the
“Guaranty” and such third party the “Guarantor”), then to the extent that the
Swap Provider fails to make any payment by the close of business on
the day it
is required to make payment under the terms of the Interest Rate Swap
Agreement,
the Trust Administrator (in its capacity as Supplemental Interest Trust
Trustee)
shall, promptly following actual knowledge of the Swap Provider’s failure to
pay, demand that the Guarantor make any and all payments then required
to be
made by the Guarantor pursuant to such Guaranty; provided, that the
Trust
Administrator (in its capacity as Supplemental Interest Trust Trustee)
shall in
no event be liable for any failure or delay in the performance by the
Swap
Provider or any Guarantor of its obligations hereunder or pursuant
to the
Interest Rate Swap Agreement and the Guaranty, nor for any special,
indirect or
consequential loss or damage of any kind whatsoever (including but
not limited
to lost profits) in connection therewith.
Upon
an
early termination of the Interest Rate Swap Agreement other than in
connection
with the optional termination of the Trust, the Trust Administrator
(in its
capacity as Supplemental Interest Trust Trustee) will, at the direction
of the
Depositor, use reasonable efforts to appoint a successor swap provider
to enter
into a new interest rate swap agreement on terms substantially similar
to the
Interest Rate Swap Agreement, with a successor swap provider meeting
all
applicable eligibility requirements. If the Trust Administrator (in
its capacity
as Supplemental Interest Trust Trustee) receives a termination payment
from the
Swap Provider in connection with such early termination, the Trust
Administrator
(in its capacity as Supplemental Interest Trust Trustee) will apply
such
termination payment to any upfront payment required to appoint the
successor
swap provider. If the Trust Administrator (in its capacity as Supplemental
Interest Trust Trustee) is required to pay a termination payment to
the Swap
Provider in connection with such early termination, the Trust Administrator
(in
its capacity as Supplemental Interest Trust Trustee) will apply any
upfront
payment received from the successor swap provider to pay such termination
payment.
If
the
Trust Administrator (in its capacity as Supplemental Interest Trust
Trustee) is
unable to appoint a successor swap provider within 30 days of the early
termination, then the Trust Administrator (in its capacity as Supplemental
Interest Trust Trustee) will deposit any termination payment received
from the
original Swap Provider into a separate, non-interest bearing reserve
account and
will, on each subsequent Distribution Date, withdraw from the amount
then
remaining on deposit in such reserve account an amount equal to the
Net Swap
Payment, if any, that would have been paid to the Trust Administrator
(in its
capacity as Supplemental Interest Trust Trustee) by the original Swap
Provider
calculated in accordance with the terms of the original Interest Rate
Swap
Agreement, and distribute such amount in accordance with the terms
of Section
4.01(h).
Upon
an
early termination of the Interest Rate Swap Agreement in connection
with the
optional termination of the Trust, if the Trust Administrator (in its
capacity
as Supplemental Interest Trust Trustee) receives a termination payment
from the
Swap Provider, such termination payment will be distributed in accordance
with
Section 4.01(h).
ARTICLE
V
THE
CERTIFICATES
| SECTION 5.01. |
The
Certificates.
|
(a) The
Certificates in the aggregate will represent the entire beneficial
ownership
interest in the Mortgage Loans and all other assets included in REMIC
I.
The
Certificates will be substantially in the forms annexed hereto as Exhibits
A-1
through A-20. The Certificates of each Class will be issuable in registered
form
only, in denominations of authorized Percentage Interests as described
in the
definition thereof. Each Certificate will share ratably in all rights
of the
related Class.
Upon
original issue, the Certificates shall be executed by the Trust Administrator
and authenticated and delivered by the Trust Administrator to or upon
the order
of the Depositor. The Certificates shall be executed by manual or facsimile
signature on behalf of the Trust Administrator by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals
who were
at any time the proper officers of the Trust Administrator shall bind
the Trust
Administrator notwithstanding that such individuals or any of them
have ceased
to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No
Certificate shall be entitled to any benefit under this Agreement or
be valid
for any purpose, unless there appears on such Certificate a certificate
of
authentication substantially in the form provided herein executed by
the Trust
Administrator by manual signature, and such certificate of authentication
shall
be conclusive evidence, and the only evidence, that such Certificate
has been
duly authenticated and delivered hereunder. All Certificates shall
be dated the
date of their authentication.
(b) The
Class
A Certificates and the Mezzanine Certificates shall initially be issued
as one
or more Certificates held by the Book-Entry Custodian or, if appointed
to hold
such Certificates as provided below, the Depository and registered
in the name
of the Depository or its nominee and, except as provided below, registration
of
such Certificates may not be transferred by the Trust Administrator
except to
another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate
Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as
provided
below, shall not be entitled to definitive, fully registered Certificates
(“Definitive Certificates”) in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests
in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing
such
Certificate Owner. Each Depository Participant shall only transfer
the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents
or
of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures. The Trust Administrator is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such
in
accordance herewith and in accordance with the agreement that it has
with the
Depository authorizing it to act as such. The Book-Entry Custodian
may, and, if
it is no longer qualified to act as such, the Book-Entry Custodian
shall,
appoint, by a written instrument delivered to the Depositor, the Master
Servicer
and the Trust Administrator, any other transfer agent (including the
Depository
or any successor Depository) to act as Book-Entry Custodian under such
conditions as the predecessor Book-Entry Custodian and the Depository
or any
successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities
by
reason of any such appointment of other than the Depository. If the
Trust
Administrator resigns or is removed in accordance with the terms hereof,
the
successor trust administrator or, if it so elects, the Depository shall
immediately succeed to its predecessor’s duties as Book-Entry Custodian. The
Depositor shall have the right to inspect, and to obtain copies of,
any
Certificates held as Book-Entry Certificates by the Book-Entry
Custodian.
The
Trustee, the Trust Administrator, the Master Servicer and the Depositor
may for
all purposes (including the making of payments due on the Book-Entry
Certificates) deal with the Depository as the authorized representative
of the
Certificate Owners with respect to the Book-Entry Certificates for
the purposes
of exercising the rights of Certificateholders hereunder. The rights
of
Certificate Owners with respect to the Book-Entry Certificates shall
be limited
to those established by law and agreements between such Certificate
Owners and
the Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository
as
Holder of the Book-Entry Certificates with respect to any particular
matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trust Administrator may establish a reasonable
record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such
record
date.
If
(i)(A)
the Depositor advises the Trust Administrator in writing that the Depository
is
no longer willing or able to properly discharge its responsibilities
as
Depository, and (B) the Depositor is unable to locate a qualified successor
or
(ii) after the occurrence of a Servicer Event of Default or a Master
Servicer
Event of Default, Certificate Owners representing in the aggregate
not less than
51% of the Ownership Interests of the Book-Entry Certificates advise
the Trust
Administrator through the Depository, in writing, that the continuation
of a
book-entry system through the Depository is no longer in the best interests
of
the Certificate Owners, the Trust Administrator shall notify all Certificate
Owners, through the Depository, of the occurrence of any such event
and of the
availability of Definitive Certificates to Certificate Owners requesting
the
same. Upon surrender to the Trust Administrator of the Book-Entry Certificates
by the Book-Entry Custodian or the Depository, as applicable, accompanied
by
registration instructions from the Depository for registration of transfer,
the
Trust Administrator shall cause the Definitive Certificates to be issued.
Such
Definitive Certificates will be issued in minimum denominations of
$25,000,
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $25,000 immediately prior to the
issuance of
a Definitive Certificate shall be issued in a minimum denomination
equal to the
amount represented by such Book-Entry Certificate. None of the Depositor,
the
Master Servicer, the Servicers, the Trustee or the Trust Administrator
shall be
liable for any delay in the delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon
the
issuance of Definitive Certificates all references herein to obligations
imposed
upon or to be performed by the Depository shall be deemed to be imposed
upon and
performed by the Trust Administrator, to the extent applicable with
respect to
such Definitive Certificates, and the Trustee and the Trust Administrator
shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
| SECTION 5.02. |
Registration
of Transfer and Exchange of Certificates.
|
(a) The
Trust
Administrator shall cause to be kept at one of the offices or agencies
to be
appointed by the Trust Administrator in accordance with the provisions
of
Section 8.11, a Certificate Register for the Certificates in which, subject
to such reasonable regulations as it may prescribe, the Trustee shall
provide
for the registration of Certificates and of transfers and exchanges
of
Certificates as herein provided.
(b) No
transfer of any Class M-11 Certificate, Class CE Certificate, Class
P
Certificate or Residual Certificate (collectively, the “Private Certificates”)
shall be made unless that transfer is made pursuant to an effective
registration
statement under the Securities Act of 1933, as amended (the “1933 Act”), and an
effective registration or qualification under applicable state securities
laws,
or is made in a transaction that does not require such registration
or
qualification. In the event that such a transfer of a Private Certificate
is to
be made without registration or qualification (other than in connection
with (i)
the initial transfer of any such Certificate by the Depositor to an
Affiliate of
the Depositor or,
in
the case of the Class R-X Certificates, the first transfer by an Affiliate
of
the Depositor or the first transfer by the initial transferee of an
Affiliate of
the Depositor,
(ii)
the transfer of any such Class CE, Class P or Residual Certificate
to the issuer
under the Indenture or the indenture trustee under the Indenture or
(iii) a
transfer of any such Certificate from the issuer under the Indenture
or the
indenture trustee under the Indenture to the Depositor or an Affiliate
of the
Depositor), the Trustee and the Certificate Registrar shall each require
receipt
of: (i) if such transfer is purportedly being made in reliance upon
Rule 144A
under the 1933 Act, written certifications from the Certificateholder
desiring
to effect the transfer and from such Certificateholder’s prospective transferee,
substantially in the forms attached hereto as Exhibit F-1; and (ii)
in all other
cases, an Opinion of Counsel satisfactory to it that such transfer
may be made
without such registration (which Opinion of Counsel shall not be an
expense of
the Depositor, the Trustee, the Trust Administrator, the Master Servicer
in its
capacity as such, the Servicers, any Sub-Servicer or the Trust Fund),
together
with copies of the written certification(s) of the Certificateholder
desiring to
effect the transfer and/or such Certificateholder’s prospective transferee upon
which such Opinion of Counsel is based, if any. None of the Depositor,
the
Master Servicer, the Servicers, the Trust Administrator, the Certificate
Registrar or the Trustee is obligated to register or qualify the Private
Certificates under the 1933 Act or any other securities laws or to
take any
action not otherwise required under this Agreement to permit the transfer
of
such Certificates without registration or qualification.
Any
Certificateholder desiring to effect the transfer of any such Certificate
shall,
and does hereby agree to, indemnify the Trustee, the Trust Administrator,
the
Depositor and the Master Servicer against any liability that may result
if the
transfer is not so exempt or is not made in accordance with such federal
and
state laws.
No
transfer of any Class CE Certificate shall be made unless the transferee
of such
Class CE Certificate provides to the Trust Administrator, the Swap
Provider and
the Interest Rate Cap Provider the appropriate tax certification form
(i.e., IRS
Form W-9 or IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable (or
any successor thereto))
as a
condition to such transfer and agrees to update
such forms (i) upon expiration of any such form, (ii) as required under
then
applicable U.S. Treasury Regulations and (iii) promptly upon learning
that any
IRS Form W-9
or
IRS Form W-8BEN, W-8IMY, or W-8ECI, as applicable
(or any successor thereto), has become obsolete or incorrect. In addition,
no
transfer of any Class CE Certificate shall be made if such transfer
would cause
the Supplemental Interest Trust or the Cap Account to be beneficially
owned by
two or more persons for federal income tax purposes, or continue to
be so
treated, unless (a) each proposed transferee of such Class CE Certificate
complies with the foregoing conditions, (b) the proposed majority Holder
of the
Class CE Certificates (or each Holder, if there is or would be no majority
Holder) (A) provides, or causes to be provided, on behalf of the Supplemental
Interest Trust and the Cap Account, if applicable, the appropriate
tax
certification form that would be required from the Supplemental Interest
Trust
or the Cap Account, as applicable, to eliminate any withholding or
deduction for
taxes from amounts payable by the Swap Provider or the Interest Rate
Cap
Provider, pursuant to the Interest Rate Swap Agreement or the Interest
Rate Cap
Agreement, to the Trust Administrator, the Swap Provider and the Interest
Rate
Cap Provider on behalf of the Supplemental Interest Trust or the Cap
Account
(i.e., IRS Form W-9 or IRS Form W-8BEN, W-8IMY or W-8ECI, as applicable
(or any
successor form thereto) as a condition to such transfer, together with
any
applicable attachments) and (B) agrees to update such form (x) upon
expiration
of any such form, (y) as required under then applicable U.S. Treasury
regulations and (z) promptly upon learning that such form has become
obsolete or
incorrect. If, under applicable U.S. Treasury regulations, such tax
certification form may only be signed by a trustee acting on behalf
of the
Supplemental Interest Trust or the Cap Account, then the Supplemental
Interest
Trust Trustee or the Trust Administrator, as applicable, shall sign
such
certification form if so requested by a Holder of the Class CE
Certificates.
Upon
receipt of any such tax certification form from a transferee of any
Class CE
Certificate pursuant to the immediately preceding paragraph, the Trust
Administrator shall provide a copy of any such tax certification form
to the
Swap Provider and the Interest Rate Cap Provider, upon its request,
solely to
the extent the Swap Provider or the Interest Rate Cap Provider has
not received
such IRS Form directly from the Holder of the Class CE Certificates.
Each Holder
of a Class CE Certificate by its purchase of such Certificate is deemed
to
consent to any such IRS Form being so forwarded. Upon the request of
the Swap
Provider or the Interest Rate Cap Provider, the Trust Administrator
shall be
required to forward any tax certification received by it to the Swap
Provider or
the Interest Rate Cap Provider at the last known address provided to
it, and,
subject to Section 8.01, shall not be liable for the receipt of such
tax
certification by the Swap Provider or the Interest Rate Cap Provider,
nor any
action taken or not taken by the Swap Provider or the Interest Rate
Cap Provider
with respect to such tax certification. Any
purported sales or transfers of any Class CE Certificate to a transferee
which
does not comply with the requirements of the preceding paragraph shall
be deemed
null and void under this Agreement. The
Trust
Administrator shall have no duty to take any action to correct any
misstatement
or omission in any tax certification provided to it by the Holder of the Class
CE Certificates and forwarded to the Swap Provider or the Interest
Rate Cap
Provider.
(c) No
transfer of a Class CE Certficate, Class P Certificate, Residual Certificate
or
any interest therein shall be made to any Plan, any Person acting,
directly or
indirectly, on behalf of any such Plan or any Person acquiring such
Certificates
with “Plan Assets” of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C. F. R. § 2510.3-101 (“Plan Assets”), as certified
by such transferee in the form of Exhibit G, unless the Trust Administrator
is
provided with an Opinion of Counsel for the benefit of the Trustee,
the Trust
Administrator, the Depositor, the Master Servicer and the Servicers
and on which
they may rely which establishes to the satisfaction of the Depositor,
the
Trustee, the Trust Administrator, the Servicers and the Master Servicer
that the
purchase of such Certificates is permissible under applicable law,
will not
constitute or result in any prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Master
Servicer, the Servicers, the NIMS Insurer, the Trust Administrator,
the Trustee
or the Trust Fund to any obligation or liability (including obligations
or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be
an expense
of the Depositor, the Master Servicer, the Servicers, the Trust Administrator,
the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any
certification will be required in connection with (i) the initial transfer
of
any Class CE Certficate, Class P Certificate or Residual Certificate
by the
Depositor to an Affiliate of the Depositor, (ii) the transfer of any
Class CE
Certficate, Class P Certificate or Residual Certificate to the issuer
under the
Indenture or the indenture trustee under the Indenture or (iii) a transfer
of
any Class CE Certficate, Class P Certificate or Residual Certificate
from the
issuer under the Indenture or the indenture trustee under the Indenture
to the
Depositor or an Affiliate of the Depositor (in which case, the Transferee
thereof shall have deemed to have represented that it is not a Plan
or a Person
investing Plan Assets) and the Trust Administrator shall be entitled
to
conclusively rely upon a representation (which, upon the request of
the Trust
Administrator, shall be a written representation) from the Transferor
of the
status of such transferee as an affiliate of the Depositor.
Any
transferee of a Class A Certificate or Mezzanine Certificate acquired
prior to
the termination of the Supplemental Interest Trust shall be deemed
to represent
that either (i) it is not a Plan or purchasing with assets of a Plan
or (ii)(A)
such Plan is an accredited investor within the meaning of the Exemption
and (B)
such acquisition or holding is eligible for the exemptive relief available
under
Department of Labor Prohibited Transaction Class Exemption (“PTE”) 84-14, ▇▇▇
▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 or PTE 96-23 or in the case of a Class M-11
Certificate, PTE 95-60.
Subsequent
to the termination of the Supplemental Interest Trust, each beneficial
owner of
such Mezzanine Certificate or any interest therein shall be deemed
to have
represented, by virtue of its acquisition or holding of that certificate
or
interest therein, that either (i) it is not a Plan or investing with
“Plan
Assets,” (ii) other than in the case of a Class
M-11 Certificate,
it has acquired and is holding such Mezzanine Certificate in reliance
on the
Exemption, and that it understands that there are certain conditions
to the
availability of the Exemption, including that the Mezzanine Certificate
must be
rated, at the time of purchase not lower than “BBB-” (or its equivalent) by
S&P, ▇▇▇▇▇’▇ or Fitch or (iii)(1) it is an insurance company, (2) the source
of funds used to acquire or hold the certificate or interest therein
is an
“insurance company general account,” as such term is defined in PTE 95-60, and
(3) the conditions in Sections I and III of PTE 95-60 have been
satisfied.
If
any
Certificate or any interest therein is acquired or held in violation
of the
provisions of the preceding three paragraphs, the next preceding permitted
beneficial owner will be treated as the beneficial owner of that Certificate
retroactive to the date of transfer to the purported beneficial owner.
Any
purported beneficial owner whose acquisition or holding of any such
Certificate
or interest therein was effected in violation of the provisions of
the preceding
three paragraphs shall indemnify and hold harmless the Depositor, the
Master
Servicer, each Servicer, the NIMS Insurer, the Trust Administrator,
the Trustee
and the Trust Fund from and against any and all liabilities, claims,
costs or
expenses incurred by those parties as a result of that acquisition
or
holding.
(d) (i)Each
Person who has or who acquires any Ownership Interest in a Residual
Certificate
shall be deemed by the acceptance or acquisition of such Ownership
Interest to
have agreed to be bound by the following provisions and to have irrevocably
authorized the Trust Administrator or its designee under clause (iii)(A)
below
to deliver payments to a Person other than such Person and to negotiate
the
terms of any mandatory sale under clause (iii)(B) below and to execute
all
instruments of Transfer and to do all other things necessary in connection
with
any such sale. The rights of each Person acquiring any Ownership Interest
in a
Residual Certificate are expressly subject to the following
provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trust
Administrator of any change or impending change in its status as a
Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in
a Residual
Certificate, the Trust Administrator shall require delivery to it,
and shall not
register the Transfer of any Residual Certificate until its receipt
of, an
affidavit and agreement (a “Transfer Affidavit and Agreement,” in the form
attached hereto as Exhibit F-2) from the proposed Transferee, in form
and
substance satisfactory to the Trust Administrator, representing and
warranting,
among other things, that such Transferee is a Permitted Transferee,
that it is
not acquiring its Ownership Interest in the Residual Certificate that
is the
subject of the proposed Transfer as a nominee, trustee or agent for
any Person
that is not a Permitted Transferee, that for so long as it retains
its Ownership
Interest in a Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this Section 5.02(d)
and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if a Responsible Officer of the Trust Administrator
who
is assigned to this transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership
Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(ii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement in the
form
attached hereto as Exhibit F-2 from any other Person to whom such Person
attempts to transfer its Ownership Interest in a Residual Certificate
and (y)
not to transfer its Ownership Interest unless it provides a Transferor
Affidavit
(in the form attached hereto as Exhibit F-2) to the Trust Administrator
stating
that, among other things, it has no actual knowledge that such other
Person is
not a Permitted Transferee.
Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give
the Trust
Administrator written notice that it is a “pass-through interest holder” within
the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Residual Certificate,
if
it is, or is holding an Ownership Interest in a Residual Certificate
on behalf
of, a “pass-through interest holder.”
(iii) The
Trust
Administrator will register the Transfer of any Residual Certificate
only if it
shall have received the Transfer Affidavit and Agreement and all of
such other
documents as shall have been reasonably required by the Trust Administrator
as a
condition to such registration. In addition, no Transfer of a Residual
Certificate shall be made unless the Trust Administrator shall have
received a
representation letter from the Transferee of such Certificate to the
effect that
such Transferee is a Permitted Transferee.
(A) If
any
purported Transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted
by
law, to all rights as holder thereof retroactive to the date of registration
of
such Transfer of such Residual Certificate. The Trust Administrator
shall be
under no liability to any Person for any registration of Transfer of
a Residual
Certificate that is in fact not permitted by this Section 5.02(d) or for
making any payments due on such Certificate to the holder thereof or
for taking
any other action with respect to such holder under the provisions of
this
Agreement.
(B)
If
any
purported Transferee shall become a holder of a Residual Certificate
in
violation of the restrictions in this Section 5.02(d) and to the extent
that the retroactive restoration of the rights of the holder of such
Residual
Certificate as described in clause (iii)(A) above shall be invalid,
illegal or
unenforceable, then the Trust Administrator shall have the right, without
notice
to the holder or any prior holder of such Residual Certificate, to
sell such
Residual Certificate to a purchaser selected by the Trust Administrator
on such
terms as the Trust Administrator may choose. Such purported Transferee
shall
promptly endorse and deliver each Residual Certificate in accordance
with the
instructions of the Trust Administrator. Such purchaser may be the
Trust
Administrator itself or any Affiliate of the Trust Administrator. The
proceeds
of such sale, net of the commissions (which may include commissions
payable to
the Trustee or its Affiliates), expenses and taxes due, if any, will
be remitted
by the Trust Administrator to such purported Transferee. The terms
and
conditions of any sale under this clause (iii)(B) shall be determined
in the
sole discretion of the Trust Administrator, and the Trust Administrator
shall
not be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iv) The
Trust
Administrator shall make available to the Internal Revenue Service
and those
Persons specified by the REMIC Provisions all information necessary
to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a
Residual Certificate to any Person who is a Disqualified Organization,
including
the information described in Treasury regulations sections 1.860D-1(b)(5)
and
1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual
Certificate and (B) as a result of any regulated investment company,
real estate
investment trust, common Trust, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time
any Person
which is a Disqualified Organization. Reasonable compensation for providing
such
information may be accepted by the Trust Administrator.
(v) The
provisions of this Section 5.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall
have been
delivered to the Trust Administrator and the NIMS Insurer at the expense
of the
party seeking to modify, add to or eliminate any such provision the
following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating
Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Trust
Administrator and the NIMS Insurer, to the effect that such modification
of,
addition to or elimination of such provisions will not cause any Trust
REMIC to
cease to qualify as a REMIC and will not cause any Trust REMIC to be
subject to
an entity-level tax caused by the Transfer of any Residual Certificate
to a
Person that is not a Permitted Transferee or a Person other than the
prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a
Residual
Certificate to a Person that is not a Permitted Transferee.
The
Trust
Administrator shall forward to the NIMS Insurer a copy of the items
delivered to
it pursuant to (A) and (B) above.
(e) Subject
to the preceding subsections, upon surrender for registration of transfer
of any
Certificate at any office or agency of the Trust Administrator maintained
for
such purpose pursuant to Section 8.11, the Trust Administrator shall
execute, authenticate and deliver, in the name of the designated Transferee
or
Transferees, one or more new Certificates of the same Class of a like
aggregate
Percentage Interest.
(f) At
the
option of the Holder thereof, any Certificate may be exchanged for
other
Certificates of the same Class with authorized denominations and a
like
aggregate Percentage Interest, upon surrender of such Certificate to
be
exchanged at any office or agency of the Trust Administrator maintained
for such
purpose pursuant to Section 8.11. Whenever any Certificates are so
surrendered for exchange, the Trust Administrator shall execute, authenticate
and deliver, the Certificates which the Certificateholder making the
exchange is
entitled to receive. Every Certificate presented or surrendered for
transfer or
exchange shall (if so required by the Trust Administrator) be duly
endorsed by,
or be accompanied by a written instrument of transfer in the form satisfactory
to the Trust Administrator duly executed by, the Holder thereof or
his attorney
duly authorized in writing. In addition, (i) with respect to each Class
R
Certificate, the holder thereof may exchange, in the manner described
above,
such Class R Certificate for three separate certificates, each representing
such
holder’s respective Percentage Interest in the Class R-I Interest, the Class
R-II Interest and the Class R-III Interest, respectively, in each case
that was
evidenced by the Class R Certificate being exchanged and (ii) with
respect to
each Class R-X Certificate, the holder thereof may exchange, in the
manner
described above, such Class R-X Certificate for three separate certificates,
each representing such holder’s respective Percentage Interest in the Class R-IV
Interest, the Class R-V Interest and the Class R-VI Interest, respectively,
in
each case that was evidenced by the Class R-X Certificate being
exchanged.
(g) No
service charge to the Certificateholders shall be made for any transfer
or
exchange of Certificates, but the Trust Administrator may require payment
of a
sum sufficient to cover any tax or governmental charge that may be
imposed in
connection with any transfer or exchange of Certificates.
(h) All
Certificates surrendered for transfer and exchange shall be canceled
and
destroyed by the Trust Administrator in accordance with its customary
procedures.
| SECTION 5.03. |
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
If
(i)
any mutilated Certificate is surrendered to the Trust Administrator,
or the
Trust Administrator receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (ii) there is delivered to the
Trust
Administrator, the Trustee and the NIMS Insurer such security or indemnity
as
may be required by it to save it harmless, then, in the absence of
actual
knowledge by the Trust Administrator that such Certificate has been
acquired by
a bona fide purchaser or the Trust Administrator shall execute, authenticate
and
deliver, in exchange for or in lieu of any such mutilated, destroyed,
lost or
stolen Certificate, a new Certificate of the same Class and of like
denomination
and Percentage Interest. Upon the issuance of any new Certificate under
this
Section, the Trust Administrator may require the payment of a sum sufficient
to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trust
Administrator) connected therewith. Any replacement Certificate issued
pursuant
to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally
issued,
whether or not the lost, stolen or destroyed Certificate shall be found
at any
time.
| SECTION 5.04. |
Persons
Deemed Owners.
|
The
Depositor, the Master Servicer, the Servicers, the NIMS Insurer, the
Trust
Administrator, the Trustee and any agent of any of them may treat the
Person in
whose name any Certificate is registered as the owner of such Certificate
for
the purpose of receiving distributions pursuant to Section 4.01 and for all
other purposes whatsoever, and none of the Depositor, the Master Servicer,
the
Servicers, the NIMS Insurer, the Trust Administrator, the Trustee or
any agent
of any of them shall be affected by notice to the contrary.
| SECTION 5.05. |
Certain
Available Information.
|
On
or
prior to the date of the first sale of any Private Certificate to an
Independent
third party, the Depositor shall provide to the Trust Administrator
ten copies
of any private placement memorandum or other disclosure document used
by the
Depositor in connection with the offer and sale of such Certificates.
In
addition, if any such private placement memorandum or disclosure document
is
revised, amended or supplemented at any time following the delivery
thereof to
the Trust Administrator, the Depositor promptly shall inform the Trust
Administrator of such event and shall deliver to the Trust Administrator
ten
copies of the private placement memorandum or disclosure document,
as revised,
amended or supplemented. The Trust Administrator shall maintain at
its Corporate
Trust Office and shall make available free of charge during normal
business
hours for review by any Holder of a Certificate or any Person identified
to the
Trust Administrator as a prospective transferee of a Certificate, originals
or
copies of the following items: (i) in the case of a Holder or prospective
transferee of a Private Certificate, the related private placement
memorandum or
other disclosure document relating to such Class of Certificates, in
the form
most recently provided to the Trust Administrator; and (ii) in all
cases, (A)
this Agreement and any amendments hereof entered into pursuant to
Section 11.01, (B) all Monthly Statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant
Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trust Administrator since
the Closing
Date, (D) any and all Officers’ Certificates delivered to the Trust
Administrator by a Servicer since the Closing Date to evidence the
related
Servicer’s determination that any Advance or Servicing Advance was, or if made,
would be a Nonrecoverable Advance or Nonrecoverable Servicing Advance,
respectively, and (E) any and all Officers’ Certificates delivered to the Trust
Administrator by a Servicer since the Closing Date pursuant to
Section 4.04(a). Copies and mailing of any and all of the foregoing items
will be available from the Trust Administrator upon request at the
expense of
the Person requesting the same.
ARTICLE
VI
THE
DEPOSITOR, THE SERVICERS AND THE MASTER SERVICER
| SECTION 6.01. |
Liability
of the Depositor, the Servicers and the Master
Servicer.
|
The
Depositor, the Servicers and the Master Servicer each shall be liable
in
accordance herewith only to the extent of the obligations specifically
imposed
by this Agreement upon them in their respective capacities as Depositor,
Servicer and Master Servicer and undertaken hereunder by the Depositor,
each
Servicer and the Master Servicer herein.
| SECTION 6.02. |
Merger
or Consolidation of the Depositor, the Servicers or the Master
Servicer.
|
Subject
to the following paragraph, the Depositor will keep in full effect
its
existence, rights and franchises as a corporation under the laws of
the
jurisdiction of its incorporation. Subject to the following paragraph,
each
Servicer will keep in full effect its existence, rights and franchises
as a
national banking association under the laws of the United States of
America or
as a limited liability company under the laws of the State of Delaware,
as the
case may be. Subject to the following paragraph, the Master Servicer
will keep
in full effect its existence, rights and franchises as a national banking
association and shall ensure that it (or an Affiliate) maintains its
qualification as an approved conventional seller/servicer for ▇▇▇▇▇▇
▇▇▇ or
▇▇▇▇▇▇▇ Mac in good standing. The Depositor, each Servicer and the
Master
Servicer each will obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification
is or shall
be necessary to protect the validity and enforceability of this Agreement,
the
Certificates or any of the Mortgage Loans and to perform its respective
duties
under this Agreement.
The
Depositor, each Servicer or the Master Servicer may be merged or consolidated
with or into any Person, or transfer all or substantially all of its
assets to
any Person, in which case any Person resulting from any merger or consolidation
to which the Depositor, a Servicer or the Master Servicer shall be
a party, or
any Person succeeding to the business of the Depositor, a Servicer
or the Master
Servicer, shall be the successor of the Depositor or the Master Servicer,
as the
case may be, hereunder, without the execution or filing of any paper
or any
further act on the part of any of the parties hereto, anything herein
to the
contrary notwithstanding; provided, however, that the successor or
surviving
Person to a Servicer shall be qualified to service mortgage loans on
behalf of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac; and provided further that the Rating Agencies’
ratings of the Class A Certificates and the Mezzanine Certificates
in effect
immediately prior to such merger or consolidation will not be qualified,
reduced
or withdrawn as a result thereof (as evidenced by a letter to such
effect from
the Rating Agencies).
| SECTION 6.03. |
Limitation
on Liability of the Depositor, the Servicers, the Master Servicer
and
Others.
|
(a) Each
Servicer (but not the Trustee if it is required to succeed a Servicer
after
becoming Master Servicer hereunder) indemnifies and holds the NIMS
Insurer, the
Trustee, the Trust Administrator, the Master Servicer and the Depositor
harmless
against any and all claims, losses, penalties, fines, forfeitures,
reasonable
legal fees and related costs, judgments, and any other costs, fees
and expenses
that the NIMS Insurer, the Trustee, the Trust Administrator, the Master
Servicer
and the Depositor may sustain in any way related to its failure to
perform its
duties and service the Mortgage Loans in compliance with the terms
of this
Agreement.
Each
Servicer shall immediately notify the NIMS Insurer, the Trustee, the
Trust
Administrator, the Master Servicer and the Depositor if a claim is
made that may
result in such claims, losses, penalties, fines, forfeitures, legal
fees or
related costs, judgments, or any other costs, fees and expenses, and
each
Servicer shall assume (with the consent of the Trust Administrator,
the
Depositor, the Master Servicer and the Trustee, as applicable) the
defense of
any such claim and pay all expenses in connection therewith, including
reasonable counsel fees, and promptly pay, discharge and satisfy any
judgment or
decree which may be entered against the NIMS Insurer, the Trustee,
the Trust
Administrator, the Master Servicer and/or the Depositor in respect
of such
claim. The provisions of this Section 6.03 shall survive the termination
of this
Agreement and the payment of the outstanding Certificates.
(b) The
Master Servicer agrees to indemnify the Indemnified Persons (as defined
below)
for, and to hold them harmless against, any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred
on their
part to the extent sustained in connection with, arising out of, or
relating to,
any claim or legal action (including any pending or threatened claim
or legal
action) relating to this Agreement or the Certificates or the powers
of attorney
delivered by the Trustee hereunder (i) related to the Master Servicer’s failure
to perform its duties in compliance with this Agreement (except as
any such
loss, liability or expense shall be otherwise reimbursable pursuant
to this
Agreement) or (ii) incurred by reason of the Master Servicer’s willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim
or legal
action (or pending or threatened claim or legal action), the Trustee
shall have
given the Master Servicer and the Depositor written notice thereof
promptly
after the Trustee shall have with respect to such claim or legal action
knowledge thereof. The Master Servicer’s failure to receive any such notice
shall not affect any Indemnified Person’s right to indemnification under this
Section 6.03(b), except to the extent the Master Servicer is materially
prejudiced by such failure to give notice. This indemnity shall survive
the
resignation or removal of the Trustee, Master Servicer or the Trust
Administrator and the termination of this Agreement. For purposes of
this
Section 6.03(b), “Indemnified Persons” means each of the Trustee, each Servicer,
the NIMS Insurer and their respective officers, directors, agents and
employees
and, with respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
(c) None
of
the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator,
each Servicer or any of the directors, officers, employees or agents
of the
Depositor, the Master Servicer, the Trust Administrator or each Servicer
shall
be under any liability to the Trust Fund or the Certificateholders
for any
action taken or for refraining from the taking of any action in good
faith
pursuant to this Agreement, or for errors in judgment; provided, however,
that
this provision shall not protect the Depositor, the Master Servicer,
the Trust
Administrator, each Servicer or any such person against any breach
of
warranties, representations or covenants made herein, or against any
specific
liability imposed on the Master Servicer or Servicer pursuant hereto,
or against
any liability which would otherwise be imposed by reason of willful
misfeasance,
bad faith or gross negligence in the performance of duties or by reason
of
reckless disregard of obligations and duties hereunder, in the case
of the
Master Servicer, a breach of the servicing standard set forth in Section
3A.01
or in the case of a Servicer, a breach of the servicing standard set
forth in
Section 3.01. The Depositor, the NIMS Insurer, the Master Servicer,
the Trust
Administrator and each Servicer and any director, officer, employee
or agent of
the Depositor, the NIMS Insurer, the
Master Servicer, the Trust Administrator or
each
Servicer may rely in good faith on any document of any kind which is,
prima
facie,
is
properly executed and submitted by any Person respecting any matters
arising
hereunder. The Depositor, the NIMS Insurer, the Master Servicer, the
Trust
Administrator, or each Servicer and any director, officer, employee
or agent of
the Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator,
or each Servicer shall be indemnified and held harmless by the Trust
Fund
against any loss, liability or expense incurred in connection with
(i) any legal
action relating to this Agreement or the Certificates, other than any
loss,
liability or expense relating to any specific Mortgage Loan or Mortgage
Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or any loss, liability or expense incurred
by reason
of willful misfeasance, bad faith or negligence in the performance
of duties
hereunder or by reason of its reckless disregard of obligations and
duties
hereunder or (ii) any breach of a representation or warranty by the
Originator
or any other party regarding the Mortgage Loans. None of the Depositor,
the NIMS
Insurer, the Master Servicer, the Trust Administrator or the Servicer
shall be
under any obligation to appear in, prosecute or defend any legal action
unless
such action is related to its respective duties under this Agreement
and, in its
opinion, does not involve it in any expense or liability; provided,
however,
that each of the Depositor, the NIMS Insurer, the Master Servicer,
the Trust
Administrator and the Servicer may in its discretion undertake any
such action
which it may deem necessary or desirable with respect to this Agreement
and the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and
costs of
such action and any liability resulting therefrom (except any loss,
liability or
expense incurred by reason of willful misfeasance, bad faith or gross
negligence
in the performance of duties hereunder or by reason of reckless disregard
of
obligations and duties hereunder) shall be expenses, costs and liabilities
of
the Trust Fund, and the Depositor, the NIMS Insurer, the Master Servicer,
the
Trust Administrator and the Servicer shall be entitled to be reimbursed
therefor
from the Collection Account or Distribution Account, as applicable,
as and to
the extent provided in Section 3.11 or Section 3A.12, any such right
of
reimbursement being prior to the rights of the Certificateholders to
receive any
amount in the Collection Account or Distribution Account. The
Master Servicer’s, the Trust Administrator’s or Servicer’s right to indemnity or
reimbursement pursuant to this Section shall survive any termination
of this
Agreement, any resignation or termination of the Master Servicer, the
Trust
Administrator or a Servicer pursuant to Section 6.04 or 7.01 with respect
to any
losses, expenses, costs or liabilities arising prior to such resignation
or
termination (or arising from events that occurred prior to such resignation
or
termination).
| SECTION 6.04. |
Limitation
on Resignation of a Servicer; Assignment of Master
Servicing.
|
(a) Except
as
otherwise provided herein, the Servicers shall not resign from the
obligations
and duties hereby imposed on it except upon determination that its
duties
hereunder are no longer permissible under applicable law. Any such
determination
pursuant to the preceding sentence permitting the resignation of a
Servicer
shall be evidenced by an Opinion of Counsel to such effect obtained
at the
expense of the resigning Servicer and delivered to the Trustee, the
Trust
Administrator, the Master Servicer and the NIMS Insurer. No resignation
of a
Servicer shall become effective until the Master Servicer or (if the
Master
Servicer is a Servicer) the Trustee or a successor servicer acceptable
to the
NIMS Insurer shall have assumed the resigning Servicer’s responsibilities,
duties, liabilities (other than those liabilities arising prior to
the
appointment of such successor) and obligations under this Agreement.
Any such
resignation shall not relieve the resigning Servicer of responsibility
for any
of the obligations specified in Sections 7.01 and 7.02 as obligations
that
survive the resignation or termination of the resigning Servicer.
Except
as
expressly provided herein, the Servicers shall not assign or transfer
any of its
rights, benefits, privileges or obligations hereunder to any other
Person, or
delegate to or subcontract with, or authorize or appoint any other
Person to
perform any of the duties, covenants or obligations to be performed
by the
related Servicer hereunder. The foregoing prohibition on assignment
shall not
prohibit a Servicer from designating a Sub-Servicer as payee of any
indemnification amount payable to the related Servicer hereunder; provided,
however, that as provided in Section 3.06 hereof, no Sub-Servicer shall
be a
third-party beneficiary hereunder and the parties hereto shall not
be required
to recognize any Sub-Servicer as an indemnitee under this Agreement.
If,
pursuant to any provision hereof, the duties of a Servicer are transferred
to a
successor servicer, the entire amount of the Servicing Fee and other
compensation payable to the related Servicer pursuant hereto shall
thereafter be
payable to such successor servicer.
(b) The
Master Servicer may sell, assign or delegate its rights, duties and
obligations
as Master Servicer under this Agreement in their entirety; provided,
however,
that: (i) the purchaser or transferee accepting such sale, assignment
and
delegation (a) shall be a Person qualified to service mortgage loans
for ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) shall have a net worth of not less than $50,000,000
(unless otherwise approved by each Rating Agency pursuant to clause
(ii) below);
(c) shall be reasonably satisfactory to the NIMS Insurer and the Trustee
(as
evidenced in a writing signed by each of the NIMS Insurer and the Trustee);
and
(d) shall execute and deliver to the Trustee and the NIMS Insurer an
agreement,
in form and substance reasonably satisfactory to the Trustee and the
NIMS
Insurer, which contains an assumption by such Person of the due and
punctual
performance and observance of each covenant and condition to be performed
or
observed by it as master servicer under this Agreement from and after
the
effective date of such assumption agreement; (ii) each Rating Agency
shall be
given prior written notice of the identity of the proposed successor
to the
Master Servicer and shall confirm in writing to the Master Servicer,
the NIMS
Insurer and the Trustee that any such sale, assignment or delegation
would not
result in a withdrawal or a downgrading of the rating on any Class
of
Certificates in effect immediately prior to such sale, assignment or
delegation;
and (iii) the Master Servicer shall deliver to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to such action under this Agreement have been fulfilled and
such
action is permitted by and complies with the terms of this Agreement.
No such
sale, assignment or delegation shall affect any liability of the Master
Servicer
arising prior to the effective date thereof.
| SECTION 6.05. |
Successor
Master Servicer.
|
In
connection with the appointment of any successor Master Servicer or
the
assumption of the duties of the Master Servicer, the Depositor, the
NIMS
Insurer, the Trust Administrator or the Trustee may make such arrangements
for
the compensation of such successor Master Servicer out of payments
on the
Mortgage Loans as the Depositor, the NIMS Insurer or the Trustee and
such
successor Master Servicer shall agree. If the successor Master Servicer
does not
agree that such market value is a fair price, such successor Master
Servicer
shall obtain two quotations of market value from third parties actively
engaged
in the master servicing of single-family mortgage loans. Notwithstanding
the
foregoing, the compensation payable to a successor Master Servicer
may not
exceed the compensation which the Master Servicer would have been entitled
to
retain if the Master Servicer had continued to act as Master Servicer
hereunder.
| SECTION 6.06. |
Rights
of the Depositor in Respect of the
Servicers.
|
The
Servicers shall afford (and any Sub-Servicing Agreement shall provide
that each
Sub-Servicer shall afford) the Depositor, the NIMS Insurer, the Master
Servicer,
the Trust Administrator and the Trustee, upon reasonable notice, during
normal
business hours, reasonable access to all records maintained by each
Servicer
(and any such Sub-Servicer) in respect of the Servicers’ rights and obligations
hereunder and access to officers of the Servicers (and those of any
such
Sub-Servicer) responsible for such obligations. Upon request, the Servicers
shall furnish to the Depositor, the NIMS Insurer, the Master Servicer,
the Trust
Administrator and the Trustee its (and any such Sub-Servicer’s) most recent
financial statements and such other information relating to the Servicers’
capacity to perform its obligations under this Agreement as it possesses
(and
that any such Sub-Servicer possesses). To the extent such information
is not
otherwise available to the public, the Depositor, the NIMS Insurer,
the Master
Servicer, the Trust Administrator and the Trustee shall not disseminate
any
information obtained pursuant to the preceding two sentences without
the related
Servicer’s written consent, except as required pursuant to this Agreement or
to
the extent that it is appropriate to do so (i) in working with legal
counsel,
auditors, taxing authorities or other governmental agencies or (ii)
pursuant to
any law, rule, regulation, order, judgment, writ, injunction or decree
of any
court or governmental authority having jurisdiction over the Depositor
and the
Trustee or the Trust Fund, and in any case, the Depositor, the NIMS
Insurer, the
Master Servicer, the Trust Administrator or the Trustee, as the case
may be,
shall use its best efforts to assure the confidentiality of any such
disseminated non-public information.
The
Depositor may, but is not obligated to, enforce the obligations of
the Servicers
under this Agreement and may, but is not obligated to, perform, or
cause a
designee to perform, any defaulted obligation of a Servicer under this
Agreement
or exercise the rights of a Servicer under this Agreement; provided
that the
related Servicer shall not be relieved of any of its obligations under
this
Agreement by virtue of such performance by the Depositor or its designee.
The
Depositor shall not have any responsibility or liability for any action
or
failure to act by the related Servicer and is not obligated to supervise
the
performance of any Servicer under this Agreement or otherwise.
| SECTION 6.07. |
[Reserved].
|
| SECTION 6.08. |
Duties
of the Credit Risk Manager.
|
For
and on behalf of the Depositor, the Credit Risk Manager will provide
reports and
recommendations concerning certain delinquent and defaulted Mortgage
Loans, and
as to the collection of any Prepayment
Charges with respect to the Mortgage Loans. Such reports and recommendations
will be
based
upon information provided to the Credit Risk Manager pursuant to the
respective
Credit Risk Management Agreement, and the Credit Risk Manager shall
look solely
to the Servicers and/or Master Servicer, as applicable, for all information
and
data (including loss and delinquency information and data) relating
to the
servicing of the Mortgage Loans. Upon any termination of the Credit
Risk Manager
or the appointment of a successor Credit Risk Manager, the Depositor
shall give
written notice thereof to the Servicers, the Trustee, the Master Servicer,
the
Trust Administrator, the NIMS Insurer and each Rating Agency. Notwithstanding
the foregoing, the termination of the Credit Risk Manager pursuant
to this
Section shall not become effective until the appointment of a successor
Credit Risk Manager.
| SECTION 6.09. |
Limitation
Upon Liability of the Credit Risk
Manager.
|
Neither
the Credit Risk Manager, nor any of its directors, officers, employees,
or
agents shall be under any liability to the Trustee, the Certificateholders,
the
Trust Administrator, the Servicers, the Master Servicer or the Depositor
for any
action taken or for refraining from the taking of any action made in
good faith
pursuant to this Agreement, in reliance upon information provided by
the
Servicers or the Master Servicer under the related Credit Risk Management
Agreement, or for errors in judgment; provided, however, that this
provision
shall not protect the Credit Risk Manager or any such person against
liability
that would otherwise be imposed by reason of willful malfeasance or
bad faith in
its performance of its duties. The Credit Risk Manager and any director,
officer, employee, or agent of the Credit Risk Manager may rely in
good faith on
any document of any kind prima
facie
properly executed and submitted by any Person respecting any matters
arising
hereunder, and may rely in good faith upon the accuracy of information
furnished
by the Servicers or the Master Servicer pursuant to the related Credit
Risk
Management Agreement in the performance of its duties thereunder and
hereunder.
| SECTION 6.10. |
Removal
of the Credit Risk Manager.
|
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66 2/3% of the Voting Rights in the Trust Fund,
in the
exercise of its or their sole discretion. The Certificateholders shall
provide
written notice of the Credit Risk Manager’s removal to the Trust Administrator.
Upon receipt of such notice, the Trust Administrator shall provide
written
notice to the Credit Risk Manager of its removal, which shall be effective
upon
receipt of such notice by the Credit Risk Manager.
ARTICLE
VII
DEFAULT
| SECTION 7.01. |
Servicer
Events of Default and Master Servicer Events of
Termination.
|
(a) “Servicer
Event of Default,” wherever used herein, means any one of the following
events:
(i) any
failure by a Servicer to remit to the Trust Administrator for distribution
to
the Certificateholders any payment (other than an Advance required
to be made
from its own funds on any Servicer Remittance Date pursuant to Section
4.03)
required to be made under the terms of the Certificates and this Agreement
which
continues unremedied for a period of one Business Day after the date
upon which
written notice of such failure, requiring the same to be remedied,
shall have
been given to the related Servicer by the Depositor or the Trust Administrator
(in which case notice shall be provided by telecopy), or to the related
Servicer, the Depositor and the Trust Administrator by the NIMS Insurer
or the
Holders of Certificates entitled to at least 25% of the Voting Rights;
or
(ii) other
than with respect to clause (vi) below, any failure on the part of
a Servicer
duly to observe or perform in any material respect any other of the
covenants or
agreements on the part of a Servicer contained in this Agreement, or
the breach
by a Servicer of any representation and warranty contained in Section
2.05,
which continues unremedied for a period of 30 days (or if such failure
or breach
cannot be remedied within 30 days, then such remedy shall have been
commenced
within 30 days and diligently pursued thereafter; provided, however,
that in no
event shall such failure or breach be allowed to exist for a period
of greater
than 90 days) after the earlier of (i) the date on which written notice
of such
failure, requiring the same to be remedied, shall have been given to
the related
Servicer by the Depositor or the Trust
Administrator or
to the
related Servicer, the Depositor and the Trust Administrator by the
NIMS Insurer
or the Holders of Certificates entitled to at least 25% of the Voting
Rights and
(ii) actual knowledge of such failure by a Servicing Officer of the
related
Servicer; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal
or state
bankruptcy, insolvency or similar law or the appointment of a conservator
or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up
or
liquidation of its affairs, shall have been entered against the related
Servicer
and such decree or order shall have remained in force undischarged
or unstayed
for a period of 90 days; or
(iv) the
related Servicer shall consent to the appointment of a conservator
or receiver
or liquidator in any insolvency, readjustment of debt, marshalling
of assets and
liabilities or similar proceedings of or relating to it or of or relating
to all
or substantially all of its property; or
(v) the
related Servicer shall admit in writing its inability to pay its debts
generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) any
failure by the related Servicer to timely comply with its obligations
pursuant
to Section 3.20, Section 3.21 or Section 4.06 hereof (in each case,
taking into
account any applicable cure periods);
(vii) any
failure of the related Servicer to make any Advance on any Servicer
Remittance
Date required to be made from its own funds pursuant to Section 4.03
which
continues unremedied until 3:00 p.m. New York time on the Business
Day following
the Servicer Remittance Date.
If
(a) a
Servicer Event of Default described in clauses (i) through (vi) of
this Section
shall occur, then, and in each and every such case, so long as such
Servicer
Event of Default shall not have been remedied, the Depositor, the Master
Servicer, the Trustee or the Trust Administrator may, and at the written
direction of the Holders of Certificates entitled to at least 51% of
Voting
Rights, or at the direction of the NIMS Insurer, the Trustee shall
or (b) a
Servicer Event of Default described in clause (vii) of this Section
shall occur
and the Trustee or the Master Servicer has, at the direction of the
Depositor,
determined to terminate the related Servicer, then the Trustee, shall,
by notice
in writing to the related Servicer, the Master Servicer and the Depositor,
terminate all of the rights and obligations of the related Servicer
in its
capacity as Servicer under this Agreement, to the extent permitted
by law, and
in and to the Mortgage Loans and the proceeds thereof. If a Servicer
Event of
Default described in clause (vii) hereof shall occur, the Trustee shall,
by
notice in writing to the related Servicer, the Depositor, the Master
Servicer
and the NIMS Insurer, terminate all of the rights and obligations of
the related
Servicer in its capacity as Servicer under this Agreement and in and
to the
Mortgage Loans and the proceeds thereof. Subject to Section 7.02 hereof,
on or
after the receipt by the related Servicer of such written notice, all
authority
and power of the related Servicer under this Agreement, whether with
respect to
the Certificates (other than as a Holder of any Certificate) or the
Mortgage
Loans or otherwise, shall pass to and be vested in the Master Servicer
or if the
Master Servicer is the affected Servicer, the Trustee pursuant to and
under this
Section, and, without limitation, the Master Servicer or the Trustee,
as
applicable, is hereby authorized and empowered, as attorney-in-fact
or
otherwise, to execute and deliver, on behalf of and at the expense
of the
related Servicer, any and all documents and other instruments and to
do or
accomplish all other acts or things necessary or appropriate to effect
the
purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents,
or
otherwise. Each Servicer agrees to promptly (and in any event no later
than ten
Business Days subsequent to such notice) provide the Master Servicer
or the
Trustee, as applicable, with all documents and records requested by
it to enable
it to assume the Servicer’s functions under this Agreement, and to cooperate
with the Master Servicer or the Trustee, as applicable, in effecting
the
termination of a Servicer’s responsibilities and rights under this Agreement,
including, without limitation, the transfer within one Business Day
to the
Master Servicer or the Trustee, as applicable, for administration by
it of all
cash amounts which at the time shall be or should have been credited
by the
related Servicer to the Collection Account held by or on behalf of
the related
Servicer, the Distribution Account or any REO Account or Servicing
Account held
by or on behalf of the related Servicer or thereafter be received with
respect
to the Mortgage Loans or any REO Property serviced by the related Servicer;
provided, however, that the related Servicer shall continue to be entitled
to
receive all amounts accrued or owing to it under this Agreement on
or prior to
the date of such termination, whether in respect of Advances or otherwise,
and
shall continue to be entitled to the benefits of Section 6.03, notwithstanding
any such termination, with respect to events occurring prior to such
termination.
(b) “Master
Servicer Event of Default,” wherever used herein, means any one of the following
events:
(i) the
Master Servicer fails to cause to be deposited in the Distribution
Account any
amount so required to be deposited pursuant to this Agreement (other
than an
Advance), and such failure continues unremedied for a period of three
Business
Days after the date upon which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Master Servicer;
or
(ii) the
Master Servicer fails to observe or perform in any material respect
any other
material covenants and agreements set forth in this Agreement to be
performed by
it, which covenants and agreements materially affect the rights of
Certificateholders, and such failure continues unremedied for a period
of 60
days after the date on which written notice of such failure, properly
requiring
the same to be remedied, shall have been given to the Master Servicer
by the
Trustee or the NIMS Insurer or to the Master Servicer and the Trustee
by the
Holders of Certificates evidencing not less than 25% of the Voting
Rights;
or
(iii) there
is
entered against the Master Servicer a decree or order by a court or
agency or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver or liquidator in any insolvency, readjustment
of debt,
marshaling of assets and liabilities or similar proceedings, or for
the winding
up or liquidation of its affairs, and the continuance of any such decree
or
order is unstayed and in effect for a period of 60 consecutive days,
or an
involuntary case is commenced against the Master Servicer under any
applicable
insolvency or reorganization statute and the petition is not dismissed
within 60
days after the commencement of the case; or
(iv) the
Master Servicer consents to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and
liabilities or similar proceedings of or relating to the Master Servicer
or
substantially all of its property; or the Master Servicer admits in
writing its
inability to pay its debts generally as they become due, files a petition
to
take advantage of any applicable insolvency or reorganization statute,
makes an
assignment for the benefit of its creditors, or voluntarily suspends
payment of
its obligations; or
(v) the
Master Servicer assigns or delegates its duties or rights under this
Agreement
in contravention of the provisions permitting such assignment or delegation
under Section 6.05; or
(vi) any
failure of the Master Servicer to make any Advance (other than a Nonrecoverable
Advance) required to be made from its own funds pursuant to Section 4.03 by
5:00 p.m. New York time on the Business Day prior to the applicable
Distribution
Date.
In
each
and every such case, so long as such Master Servicer Event of Default
with
respect to the Master Servicer shall not have been remedied, either
the Trustee,
the NIMS Insurer or the Holders of Certificates evidencing not less
than 51% of
the Voting Rights, by notice in writing to the Depositor, the Master
Servicer
(and to the Trustee if given by such Certificateholders), with a copy
to the
NIMS Insurer and the Rating Agencies, may terminate all of the rights
and
obligations (but not the liabilities) of the Master Servicer under
this
Agreement and in and to the Mortgage Loans and/or the REO Property
master
serviced by the Master Servicer and the proceeds thereof. Upon the
receipt by
the Master Servicer of the written notice, all authority and power
of the Master
Servicer under this Agreement, whether with respect to the Certificates,
the
Mortgage Loans, REO Property or under any other related agreements
(but only to
the extent that such other agreements relate to the Mortgage Loans
or related
REO Property) shall, subject to Section 7.03, automatically and without
further action pass to and be vested in the Trustee pursuant to this
Section 7.01(b); and, without limitation, the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the Master Servicer
as
attorney-in-fact or otherwise, any and all documents and other instruments
and
to do or accomplish all other acts or things necessary or appropriate
to effect
the purposes of such notice of termination, whether to complete the
transfer and
endorsement or assignment of the Mortgage Loans and related documents,
or
otherwise. The Master Servicer agrees to cooperate with the Trustee
in effecting
the termination of the Master Servicer’s rights and obligations hereunder,
including, without limitation, the transfer to the Trustee of (i) the
property
and amounts which are then or should be part of the Trust Fund or which
thereafter become part of the Trust Fund; and (ii) originals or copies
of all
documents of the Master Servicer reasonably requested by the Trustee
to enable
it to assume the Master Servicer’s duties thereunder. In addition to any other
amounts which are then, or, notwithstanding the termination of its
activities
under this Agreement, may become payable to the Master Servicer under
this
Agreement, the Master Servicer shall be entitled to receive, out of
any amount
received on account of a Mortgage Loan or related REO Property, that
portion of
such payments which it would have received as reimbursement under this
Agreement
if notice of termination had not been given. The termination of the
rights and
obligations of the Master Servicer shall not affect any obligations
incurred by
the Master Servicer prior to such termination.
Notwithstanding
the foregoing, if a Master Servicer Event of Default described in clause
(vi) of
this Section 7.01(b) shall occur, the Trustee shall, by notice in writing
to the Master Servicer, which may be delivered by telecopy, immediately
terminate all of the rights and obligations of the Master Servicer
thereafter
arising under this Agreement, but without prejudice to any rights it
may have as
a Certificateholder or to reimbursement of Advances and other advances
of its
own funds, and the Trustee shall act as provided in Section 7.03 to carry
out the duties of the Master Servicer, including the obligation to
make any
Advance the nonpayment of which was a Master Servicer Event of Default
described
in clause (vi) of this Section 7.01(b). Any such action taken by the
Trustee must be prior to the distribution on the relevant Distribution
Date.
| SECTION 7.02. |
Master
Servicer or Trustee to Act; Appointment of Successor
Servicer.
|
(a) From
the
time a Servicer receives a notice of termination, the Master
Servicer
or (if
the Master Servicer is the affected Servicer) the Trustee (or such
other
successor servicer as is acceptable to the NIMS Insurer) shall be the
successor
in all respects to the related Servicer in its capacity as Servicer
under this
Agreement and the transactions set forth or provided for herein, and
all the
responsibilities, duties and liabilities relating thereto and arising
thereafter
shall be assumed by the Master Servicer or the Trustee, as applicable,
(except
for any representations or warranties of the related Servicer under
this
Agreement, the responsibilities, duties and liabilities contained in
Section
2.05 and the obligation to deposit amounts in respect of losses pursuant
to
Section 3.12) by the terms and provisions hereof; provided, however,
the Master
Servicer or the Trustee, as applicable, shall immediately assume the
related
Servicer’s obligations to make Advances pursuant to Section 4.03; provided,
further, however, that if the Master Servicer or the Trustee, as applicable,
is
prohibited by law or regulation from obligating itself to make advances
regarding delinquent mortgage loans, then the Master Servicer or the
Trustee, as
applicable, shall not be obligated to make Advances pursuant to Section
4.03;
and provided further, that any failure to perform such duties or
responsibilities caused by the related Servicer’s failure to provide information
required by Section 7.01(a) shall not be considered a default by the
Master
Servicer or the Trustee, as applicable, as successor to the related
Servicer
hereunder. It is understood and acknowledged by the parties hereto
that there
will be a period of transition (not to exceed 90 days) before the transition
of
servicing obligations is fully effective. As compensation therefor,
the Master
Servicer or the Trustee, as applicable, shall be entitled to the Servicing
Fee
and all funds relating to the Mortgage Loans to which the related Servicer
would
have been entitled if it had continued to act hereunder. Notwithstanding
the
above and subject to Section 7.02(b) below, the Master Servicer or
the Trustee,
as applicable, if it shall be unwilling to so act, or shall, if it
is unable to
so act or if it is prohibited by law from making advances regarding
delinquent
mortgage loans or if the Holders of Certificates entitled to at least
51% of the
Voting Rights or the NIMS Insurer so request in writing to the Trustee,
promptly
appoint or petition a court of competent jurisdiction to appoint, an
established
mortgage loan servicing institution acceptable to each Rating Agency
and the
NIMS Insurer and having a net worth of not less than $15,000,000, as
the
successor to the related Servicer under this Agreement in the assumption
of all
or any part of the responsibilities, duties or liabilities of the related
Servicer under this Agreement.
Pending
appointment of a successor to the affected Servicer hereunder, unless
the Master
Servicer or the Trustee, as applicable, is prohibited by law from so
acting, the
Master Servicer or the Trustee, as applicable, shall act in such capacity
as
hereinabove provided. In connection with such appointment and assumption,
the
successor shall be entitled to receive compensation out of payments
on Mortgage
Loans in an amount equal to the compensation which the related Servicer
would
otherwise have received pursuant to Section 3.18 (or such other compensation
as
the Master Servicer or the Trustee, as applicable, and such successor
shall
agree, not to exceed the Servicing Fee). The appointment of a successor
servicer
shall not affect any liability of the predecessor Servicer which may
have arisen
under this Agreement prior to its termination as Servicer to pay any
deductible
under an insurance policy pursuant to Section 3.14 or to indemnify
the NIMS
Insurer pursuant to Section 6.03, nor shall any successor servicer
be liable for
any acts or omissions of the predecessor servicer or for any breach
by such
servicer of any of its representations or warranties contained herein
or in any
related document or agreement. The Master Servicer or the Trustee,
as
applicable, and such successor shall take such action, consistent with
this
Agreement, as shall be necessary to effectuate any such succession.
All
reasonable Servicing Transfer Costs shall be paid by the predecessor
servicer
upon presentation of reasonable documentation of such costs, and if
such
predecessor servicer defaults in its obligation to pay such costs,
such costs
shall be paid by the successor servicer or the Master Servicer or the
Trustee,
as applicable (in which case the successor servicer or the Master Servicer
or
the Trustee, as applicable, shall be entitled to reimbursement therefor
from the
assets of the Trust Fund).
(b) No
appointment of a successor to a Servicer under this Agreement shall
be effective
until the assumption by the successor of all of the related Servicer’s
responsibilities, duties and liabilities hereunder. In connection with
such
appointment and assumption described herein, the Master Servicer or
the Trustee,
as applicable, may make such arrangements for the compensation of such
successor
out of payments on Mortgage Loans as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of
that
permitted the related Servicer as such hereunder. The Depositor, the
Trustee,
the Trust Administrator, the Master Servicer and such successor shall
take such
action, consistent with this Agreement, as shall be necessary to effectuate
any
such succession. Pending appointment of a successor to the related
Servicer
under this Agreement the Master Servicer or the Trustee, as applicable,
shall
act in such capacity as hereinabove provided.
Any
successor to a Servicer, including the Master Servicer or the Trustee,
as
applicable, shall during the term of its service as servicer continue
to service
and administer the Mortgage Loans for the benefit of Certificateholders,
and
maintain in force a policy or policies of insurance covering errors
and
omissions in the performance of its obligations as Servicer hereunder
and a
fidelity bond in respect of its officers, employees and agents to the
same
extent as the terminated Servicer is so required pursuant to Section
3.14.
(c) Notwithstanding
any provision in this Agreement to the contrary, for a period of 30
days
following the date on which a Servicer shall have received a notice
of a
Servicer Event of Default pursuant to Section 7.01, or a default under
a loan
agreement pursuant to Section 6.04 or a Servicer resignation pursuant
to Section
6.04, the terminated Servicer or its designee may, with the consent
of the NIMS
Insurer, appoint a successor servicer that satisfies the eligibility
criteria of
a successor servicer set forth above; provided that such successor
servicer
agrees to fully effect the servicing transfer within 90 days following
the
termination of the related Servicer and to make all Advances that would
otherwise be made by the Master Servicer or the Trustee, as applicable,
under
Section 7.01 as of the date of such appointment. Any proceeds received
in
connection with the appointment of such successor servicer (after deduction
of
any expenses incurred in connection with the servicing transfer) shall
be the
property of the terminated Servicer or its designee. Notwithstanding
the
foregoing, in the event of a Servicer Event of Default pursuant to
Section
7.01(a)(vii), either (i) the related Servicer shall remit the amount
of the
required Advance by 3:00 p.m.
New York
time on the Business Day following the Servicer Remittance Date or
(ii) by 3:00
p.m. New York time on the Business Day following the Servicer Remittance
Date,
the related Servicer shall have appointed a successor servicer that
satisfies
the eligibility criteria of a successor servicer set forth above and
that has
remitted the amount of the required Advance to the Trust Administrator.
If the
related Servicer fails to adhere to the requirements set forth in the
immediately preceding sentence, the Master Servicer or the Trustee,
as
applicable, shall be the successor in all respects to the related Servicer
in
its capacity as Servicer under this Agreement and shall immediately
assume the
related Servicer’s obligations to make Advances. In no event shall the
termination of a Servicer under this Agreement result in any diminution
of a
Servicer’s right to reimbursement for any outstanding Advances or Servicing
Advances or accrued and unpaid Servicing Fees due to each Servicer
at the time
of termination. Reimbursement of unreimbursed Advances and Servicing
Advances
and accrued and unpaid Servicing Fees shall be made on a FIFO, loan-by-loan
basis. Each Servicer shall continue to be entitled to the benefits
of Section
6.03 hereof related to indemnification, notwithstanding any termination
hereunder.
(d) In
connection with the termination or resignation of a Servicer hereunder,
either
(i) the successor servicer, including the Master Servicer or the Trustee,
as
applicable, if the Master Servicer or the Trustee, as applicable, is
acting as
successor servicer, shall represent and warrant that it is a member
of MERS in
good standing and shall agree to comply in all material respects with
the rules
and procedures of MERS in connection with the servicing of the Mortgage
Loans
that are registered with MERS, in which case the predecessor servicer
shall
cooperate with the successor servicer in causing MERS to revise its records to
reflect the transfer of servicing to the successor servicer as necessary
under
MERS’ rules and regulations, or (ii) the predecessor servicer shall cooperate
with the successor servicer in causing MERS to execute and deliver
an assignment
of Mortgage in recordable form to transfer the Mortgage from MERS to
the Master
Servicer or the Trustee, as applicable, and to execute and deliver
such other
notices, documents and other instruments as may be necessary or desirable
to
effect a transfer of such Mortgage Loan or servicing of such Mortgage
Loan on
the MERS® System to the successor servicer. The predecessor servicer shall file
or cause to be filed any such assignment in the appropriate recording
office.
The predecessor servicer shall bear any and all fees of MERS, costs
of preparing
any assignments of Mortgage, and fees and costs of filing any assignments
of
Mortgage that may be required under this Section 7.02(d).
| SECTION 7.03. |
Trustee
to Act; Appointment of Successor Master
Servicer.
|
(a) Upon
the
receipt by the Master Servicer of a notice of termination pursuant
to
Section 7.01(b) or an Opinion of Counsel rendered by Independent counsel
pursuant to Section 6.05(b) to the effect that the Master Servicer is
legally unable to act or to delegate its duties to a Person which is
legally
able to act, the Trustee shall automatically become the successor in
all
respects to the Master Servicer in its capacity under this Agreement
and the
transactions set forth or provided for herein and shall thereafter
be subject to
all the responsibilities, duties, liabilities and limitations on liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof; provided, however, that the Trustee (i) shall have no obligation
whatsoever with respect to any liability (other than Advances deemed
recoverable
and not previously made) incurred by the Master Servicer at or prior
to the time
of termination and (ii) shall not be obligated to perform any obligation
of the
Master Servicer under Section 3.20 or 3.21 with respect to any period
of time
during which the Trustee was not the Master Servicer. As compensation
therefor,
but subject to Section 6.05, the Trustee shall be entitled to compensation
which the Master Servicer would have been entitled to retain if the
Master
Servicer had continued to act hereunder, except for those amounts due
the Master
Servicer as reimbursement permitted under this Agreement for advances
previously
made or expenses previously incurred. Notwithstanding the above, the
Trustee
may, if it shall be unwilling so to act, or shall, if it is legally
unable so to
act, appoint or petition a court of competent jurisdiction to appoint,
any
established housing and home finance institution which is a ▇▇▇▇▇▇
▇▇▇- or
▇▇▇▇▇▇▇ Mac-approved servicer, acceptable to the NIMS Insurer and with
respect
to a successor to the Master Servicer only, having a net worth of not
less than
$50,000,000, as the successor to the Master Servicer hereunder in the
assumption
of all or any part of the responsibilities, duties or liabilities of
the Master
Servicer hereunder; provided, that the Trustee shall obtain consent
from the
NIMS Insurer and a letter or other evidence each Rating Agency that
the ratings,
if any, on each of the Certificates will not be lowered as a result
of the
selection of the successor to the Master Servicer. Pending appointment
of a
successor to the Master Servicer hereunder, the Trustee shall act in
such
capacity as hereinabove provided. In connection with such appointment
and
assumption, the Trustee may make such arrangements for the compensation
of such
successor out of payments on the Mortgage Loans as it and such successor
shall
agree; provided, however, that the provisions of Section 6.05 shall apply,
the compensation shall not be in excess of that which the Master Servicer
would
have been entitled to if the Master Servicer had continued to act hereunder,
and
that such successor shall undertake and assume the obligations of the
Trustee to
pay compensation to any third Person acting as an agent or independent
contractor in the performance of master servicing responsibilities
hereunder.
The Trustee and such successor shall take such action, consistent with
this
Agreement, as shall be necessary to effectuate any such succession.
If
the
Master Servicer and the Trust Administrator are the same entity, then
at any
time the Master Servicer resigns or is removed as Master Servicer,
the Trust
Administrator shall also be removed hereunder. All reasonable Master
Servicing
Transfer Costs shall be paid by the predecessor Master Servicer upon
presentation of reasonable documentation of such costs, and if such
predecessor
Master Servicer defaults in its obligation to pay such costs, such
costs shall
be paid by the successor Master Servicer or the Trustee (in which case
the
successor Master Servicer or the Trustee, as applicable, shall be entitled
to
reimbursement therefor from the assets of the Trust Fund).
(b) If
the
Trustee shall succeed to any duties of the Master Servicer respecting
the
Mortgage Loans as provided herein, it shall do so in a separate capacity
and not
in its capacity as Trustee and, accordingly, the provisions of Article
VIII
shall be inapplicable to the Trustee in its duties as the successor
to the
Master Servicer in the master servicing of the Mortgage Loans (although
such
provisions shall continue to apply to the Trustee in its capacity as
Trustee);
the provisions of Article VI, however, shall apply to it in its capacity
as
successor Master Servicer.
| SECTION 7.04. |
Notification
to Certificateholders.
|
(a) Upon
any
termination of a Servicer or the Master Servicer pursuant to Section 7.01
above or any appointment of a successor to a Servicer or Master Servicer
pursuant to Section 7.02 or Section 7.03 above, the Trust Administrator, or
in the event of the termination of the Master Servicer, the Trustee
(or such
other successor Trust Administrator) shall give prompt written notice
thereof to
each Servicer, the Credit Risk Manager, the NIMS Insurer, the Master
Servicer
and the Certificateholders at their respective addresses appearing
in the
Certificate Register.
(b) Not
later
than the later of 60 days after the occurrence of any event, which
constitutes
or which, with notice or lapse of time or both, would constitute a
Servicer
Event of Default or a Master Servicer Event of Default or five days
after a
Responsible Officer of the Trust Administrator (in the case of a Servicer
Event
of Default) or the Trustee (in the case of a Master Servicer Event
of Default)
becomes aware of the occurrence of such an event, the Trust Administrator
or
Trustee, as applicable, shall transmit by mail to the Credit Risk Manager,
the
NIMS Insurer and to all Holders of Certificates notice of each such
occurrence,
unless such Servicer Event of Default or Master Servicer Event of Default
shall
have been cured or waived.
| SECTION 7.05. |
Waiver
of Servicer Events of Default and Master Servicer Events of
Termination.
|
The
Holders representing at least 66% of the Voting Rights (with the consent
of the
NIMS Insurer) evidenced by all Classes of Certificates affected by
any default,
Servicer Event of Default or Master Servicer Event of Default hereunder
may
waive such default, Servicer Event of Default or Master Servicer Event
of
Default; provided, however, that a Servicer Event of Default under
clause (i) or
(vii) of Section 7.01(a) or Master Servicer Event of Default under
clause (i) or
(vi) of Section 7.01(b) may be waived only by all of the Holders of
the Regular
Certificates (with the consent of the NIMS Insurer). Upon any such
waiver of a
default, Servicer Event of Default or Master Servicer Event of Default,
such
default, Servicer Event of Default or Master Servicer Event of Default
shall
cease to exist and shall be deemed to have been remedied for every
purpose
hereunder. No such waiver shall extend to any subsequent or other default,
Servicer Event of Default or Master Servicer Event of Default or impair
any
right consequent thereon except to the extent expressly so waived.
Notice of any
such waiver shall be given by the Trust Administrator or the Trustee
as
applicable, to the Rating Agencies and the NIMS Insurer.
| SECTION 7.06. |
Survivability
of Servicer and Master Servicer
Liabilities.
|
Notwithstanding
anything herein to the contrary, upon termination of a Servicer or
the Master
Servicer hereunder, any liabilities
of
the terminated Servicer or the Master Servicer, as applicable, which
accrued
prior to such termination shall survive such termination.
ARTICLE
VIII
CONCERNING
THE TRUSTEE AND THE TRUST ADMINISTRATOR
| SECTION 8.01. |
Duties
of Trustee and Trust Administrator.
|
The
Trustee, prior to the occurrence of a Servicer Event of Default or
Master
Servicer Event of Default and after the curing of all Servicer Events
of Default
or Master Servicer Events of Termination which may have occurred, undertakes
to
perform such duties and only such duties as are specifically set forth
in this
Agreement. The Trust Administrator undertakes to perform such duties
and only
such duties as are specifically set forth in this Agreement. If a Servicer
Event
of Default or Master Servicer Event of Default has occurred (which
has not been
cured) of which a Responsible Officer has knowledge, the Trustee shall
exercise
such of the rights and powers vested in it by this Agreement, and use
the same
degree of care and skill in their exercise, as a prudent man would
exercise or
use under the circumstances in the conduct of his own affairs.
Each
of
the Trustee and the Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to
determine
whether they conform to the requirements of this Agreement; provided,
however,
that neither the Trustee nor the Trust Administrator will be responsible
for the
accuracy or content of any such resolutions, certificates, statements,
opinions,
reports, documents or other instruments. If any such instrument is
found not to
conform to the requirements of this Agreement in a material manner
the Trustee
or the Trust Administrator, as applicable, shall take such action as
it deems
appropriate to have the instrument corrected, and if the instrument
is not
corrected to the Trustee’s or the Trust Administrator’s satisfaction, the
Trustee or the Trust Administrator, as applicable, will provide notice
thereof
to the Certificateholders and the NIMS Insurer.
No
provision of this Agreement shall be construed to relieve the Trustee
or the
Trust Administrator from liability for its own negligent action, its
own
negligent failure to act or its own misconduct; provided, however,
that:
(i) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event
of
Default, and after the curing of all such Servicer Events of Default
or Master
Servicer Events of Termination which may have occurred, the duties
and
obligations of the Trustee 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, in the absence of bad faith on the part of the Trustee,
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.
The Trust Administrator shall not be liable except for the performance
of such
duties and obligations as are specifically set forth in this Agreement,
no
implied covenants or obligations shall be read into this Agreement
against the
Trust Administrator, in the absence of bad faith on the part of the
Trust
Administrator, the Trust Administrator, 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 Trust Administrator,
that conform
to the requirements of this Agreement;
(ii) Neither
the Trustee nor the Trust Administrator shall be personally liable
for an error
of judgment made in good faith by a Responsible Officer of the Trustee
or the
Trust Administrator, as applicable, unless it shall be proved that
the Trustee
or the Trust Administrator, as the case may be, was negligent in ascertaining
the pertinent facts;
(iii) Neither
the Trustee nor the Trust Administrator shall be personally liable
with respect
to any action taken, suffered or omitted to be taken by it in good
faith in
accordance with the direction of the NIMS Insurer or the Holders of
Certificates
evidencing not less than 51% of the Voting Rights relating to the time,
method
and place of conducting any proceeding for any remedy available to
the Trustee
or the Trust Administrator, as applicable, or exercising or omitting
to exercise
any trust or power conferred upon the Trustee, under this Agreement;
and
(iv) The
Trustee shall not be required to take notice or be deemed to have notice
or
knowledge of any default, Servicer Event of Default or Master Servicer
Event of
Default unless a Responsible Officer of the Trustee at the Corporate
Trust
Office obtains actual knowledge of such failure or the Trustee receives
written
notice of such failure from the Depositor, a Servicer or the Holders
of
Certificates evidencing not less than 51% of the Voting Rights.
Neither
the Trustee nor the Trust Administrator shall be required to expend
or risk its
own funds or otherwise incur financial liability in the performance
of any of
its duties hereunder, or in the exercise of any of its rights or powers,
if
there is reasonable ground for believing that the repayment of such
funds or
adequate indemnity against such risk or liability is not reasonably
assured to
it, and none of the provisions contained in this Agreement shall in
any event
require the Trustee to perform, or be responsible for the manner of
performance
of, any of the obligations of the Master Servicer under this Agreement,
except
during such time, if any, as the Trustee shall be the successor to,
and be
vested with the rights, duties, powers and privileges of, the Master
Servicer in
accordance with the terms of this Agreement.
| SECTION 8.02. |
Certain
Matters Affecting the Trustee and the Trust
Administrator
|
(a) Except
as
otherwise provided in Section 8.01:
(i) Either
the Trustee or the Trust Administrator may request and rely upon, and
shall be
protected in acting or refraining from acting upon, any resolution,
Officers’
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or
other paper or document reasonably believed by it to be genuine and
to have been
signed or presented by the proper party or parties, and the manner
of obtaining
consents and of evidencing the authorization of the execution thereof
by
Certificateholders shall be subject to such reasonable regulations
as the
Trustee or the Trust Administrator may prescribe;
(ii) Either
the Trustee or the Trust Administrator may consult with counsel and
any Opinion
of Counsel shall be full and complete authorization and protection
in respect of
any action taken or suffered or omitted by it hereunder in good faith
and in
accordance with such Opinion of Counsel;
(iii) Neither
the Trustee nor the Trust Administrator shall be under any obligation
to
exercise any of the rights or powers vested in it by this Agreement,
or to
institute, conduct or defend any litigation hereunder or in relation
hereto, at
the request, order or direction of any of the Certificateholders or
the NIMS
Insurer, pursuant to the provisions of this Agreement, unless such
Certificateholders or the NIMS Insurer, as applicable, shall have offered
to the
Trustee or the Trust Administrator, as applicable, reasonable security
or
indemnity against the costs, expenses and liabilities which may be
incurred
therein or thereby; the right of the Trustee or the Trust Administrator
to
perform any discretionary act enumerated in this Agreement shall not
be
construed as a duty, and neither the Trustee nor the Trust Administrator
shall
be answerable for other than its negligence or willful misconduct in
the
performance of any such act; nothing contained herein shall, however,
relieve
the Trustee of the obligation, upon the occurrence of a Master Servicer
Event of
Default of which the Trustee has received written notice or of which
a
Responsible Officer of the Trustee has actual knowledge (which has
not been
cured or waived), to exercise such of the rights and powers vested
in it by this
Agreement, and to use the same degree of care and skill in their exercise,
as a
prudent person would exercise under the circumstances in the conduct
of his own
affairs;
(iv) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event
of
Default hereunder and after the curing or waiver of all Servicer Events
of
Default or Master Servicer Events of Termination which may have occurred,
neither the Trustee nor the Trust Administrator shall be personally
liable for
any action taken, suffered or omitted by it in good faith and believed
by it to
be authorized or within the discretion or rights or powers conferred
upon it by
this Agreement;
(v) Prior
to
the occurrence of a Servicer Event of Default or Master Servicer Event
of
Default and after the curing of all Servicer Events of Default or Master
Servicer Events of Termination which may have occurred, neither the
Trustee nor
the Trust Administrator shall be bound to make any investigation into
the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper
or documents, unless requested in writing to do so by the NIMS Insurer
or the
Holders of Certificates entitled to at least 25% of the Voting Rights;
provided,
however, that if the payment within a reasonable time to the Trustee
or the
Trust Administrator, as applicable, of the costs, expenses or liabilities
likely
to be incurred by it in the making of such investigation is, in the
opinion of
the Trustee or the Trust Administrator, as applicable, not reasonably
assured to
the Trustee or the Trust Administrator, as applicable, by the security
afforded
to it by the terms of this Agreement, the Trustee or the Trust Administrator,
as
applicable, may require reasonable indemnity against such cost, expense
or
liability as a condition to such proceeding; and
(vi) Either
the Trustee or the Trust Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through
agents or attorneys, custodians or nominees.
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by it without the possession
of any
of the Certificates, or the production thereof at the trial or other
proceeding
relating thereto, and any such suit, action or proceeding instituted
by the
Trustee shall be brought in its name for the benefit of all the Holders
of such
Certificates, subject to the provisions of this Agreement.
| SECTION 8.03. |
Neither
Trustee nor Trust Administrator Liable for Certificates or
Mortgage
Loans.
|
The
recitals contained herein and in the Certificates (other than the signature
of
the Trust Administrator, the authentication of the Trust Administrator
on the
Certificates, the acknowledgments of the Trustee contained in Article
II and the
representations and warranties of the Trustee and the Trust Administrator
in
Section 8.13) shall be taken as the statements of the Depositor and neither
the Trustee nor the Trust Administrator assumes any responsibility
for their
correctness. Neither the Trustee nor the Trust Administrator makes
any
representations or warranties as to the validity or sufficiency of
this
Agreement (other than as specifically set forth in Section 8.12) or of the
Certificates (other than the signature of the Trust Administrator and
authentication of the Trust Administrator on the Certificates) or of
any
Mortgage Loan or related document. Neither the Trustee nor the Trust
Administrator shall be accountable for the use or application by the
Depositor
of any of the Certificates or of the proceeds of such Certificates,
or for the
use or application of any funds paid to the Depositor, the Servicers
or the
Master Servicer in respect of the Mortgage Loans or deposited in or
withdrawn
from the Collection Account by the Servicers or the Distribution Account
by the
Master Servicer.
| SECTION 8.04. |
Trustee
and Trust Administrator May Own
Certificates.
|
Each
of
the Trustee and the Trust Administrator in its individual capacity
or any other
capacity may become the owner or pledgee of Certificates with the same
rights it
would have if it were not Trustee or Trust Administrator, as applicable.
Each of
the Trustee and the Trust Administrator in its individual capacity
or any other
capacity may transact any banking and trust business with the Originator,
the
Servicers, the Depositor or their Affiliates.
| SECTION 8.05. |
Trust
Administrator’s and Trustee’s Fees and
Expenses.
|
On
each
Distribution Date, the Trust Administrator shall be entitled to compensation
as
separately agreed with the Master Servicer. The annual fees of the
Trustee
hereunder and of the Custodian shall be paid in accordance with side
letter
agreements with the Trust Administrator and at the sole expense of
the Trust
Administrator. The Trustee, the Trust Administrator or any director,
officer,
employee or agent of any of them, shall be indemnified by the Trust
Fund and
held harmless against any loss, liability or expense (not including
expenses and
disbursements incurred or made by the Trustee or the Trust Administrator,
including the compensation and the expenses and disbursements of its
agents and
counsel, in the ordinary course of the Trustee’s or the Trust Administrator’s
performance in accordance with the provisions of this Agreement) incurred
by the
Trustee or by the Trust Administrator arising out of or in connection
with the
acceptance or administration of the obligations and duties of the Trustee
or the
Trust Administrator under this Agreement, other than any loss, liability
or
expense (i) resulting from a breach of a Servicer’s or the Master Servicer’s
obligations and duties under this Agreement for which the Trustee or
the Trust
Administrator, as applicable, is otherwise indemnified under this Agreement
or
(ii) any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence of the Trustee or of the Trust Administrator,
as
applicable, in the performance of its duties hereunder or by reason
of the
Trustee’s or the Trust Administrator’s, as applicable, reckless disregard of
obligations and duties hereunder or as a result of a breach of the
Trustee’s or
the Trust Administrator’s, as applicable, obligations under Article X hereof.
Any amounts payable to the Trustee, the Trust Administrator or any
director,
officer, employee or agent of the Trustee or the Trust Administrator,
in respect
of the indemnification provided by this Section 8.05, or pursuant to any
other right of reimbursement from the Trust Fund that the Trustee,
the Trust
Administrator or any director, officer, employee or agent of the Trustee
or the
Trust Administrator, may have hereunder in its capacity as such, may
be
withdrawn by the Trust Administrator for payment to the applicable
indemnified
Person from the Distribution Account at any time. The foregoing indemnity
shall
survive the resignation or removal of the Trustee or the Trust
Administrator.
| SECTION 8.06. |
Eligibility
Requirements for Trustee and Trust
Administrator.
|
Each
of
the Trustee and the Trust Administrator hereunder shall at all times
be an
entity duly organized and validly existing under the laws of the United
States
of America or any state thereof, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least
$50,000,000 and subject to supervision or examination by federal or
state
authority. If such entity publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising
or examining
authority, then for the purposes of this Section 8.06, the combined capital
and surplus of such entity shall be deemed to be its combined capital
and
surplus as set forth in its most recent report of condition so published.
The
principal offices of each of the Trustee and the Trust Administrator
(other than
the initial Trustee and initial Trust Administrator) shall be in a
state with
respect to which an Opinion of Counsel has been delivered to such Trustee
or
Trust Administrator, as applicable, at the time such Trustee or Trust
Administrator, as applicable, is appointed Trustee or Trust Administrator,
as
applicable, to the effect that the Trust will not be a taxable entity
under the
laws of such state. In case at any time the Trustee or the Trust Administrator
shall cease to be eligible in accordance with the provisions of this
Section 8.06, the Trustee or the Trust Administrator, as applicable, shall
resign immediately in the manner and with the effect specified in
Section 8.07.
| SECTION 8.07. |
Resignation
and Removal of the Trustee or Trust
Administrator.
|
The
Trustee or the Trust Administrator may at any time resign and be discharged
from
the trusts hereby created by giving written notice thereof to the Depositor,
the
NIMS Insurer, the Servicers, the Master Servicer, each Rating Agency
and, if the
Trustee is resigning, to the Trust Administrator, or, if the Trust
Administrator
is resigning, to the Trustee. Upon receiving such notice of resignation,
the
Depositor shall promptly appoint a successor Trustee or Trust Administrator,
(which may be the same Person in the event both the Trustee and the
Trust
Administrator resign or are removed) acceptable to the NIMS Insurer
by written
instrument, in duplicate, one copy of which instrument shall be delivered
to the
resigning Trustee or Trust Administrator, as applicable, and one copy
to the
successor Trustee or Trust Administrator. If no successor Trustee or
Trust
Administrator, as applicable, shall have been so appointed and having
accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or Trust Administrator may petition any court of
competent
jurisdiction for the appointment of a successor Trustee or Trust Administrator,
as applicable.
If
the
Trust Administrator and the Master Servicer are the same entity, then
at any
time the Trust Administrator resigns or is removed as Trust Administrator,
the
Master Servicer shall also be removed hereunder.
If
at any
time the Trustee or the Trust Administrator shall cease to be eligible
in
accordance with the provisions of Section 8.06 and shall fail to resign
after written request therefor by the Depositor or the NIMS Insurer
(or in the
case of the Trust Administrator, the Trustee), or if at any time the
Trustee or
the Trust Administrator shall be legally unable to act, or shall be
adjudged
bankrupt or insolvent, or a receiver of the Trustee or the Trust Administrator
or of its property shall be appointed, or any public officer shall
take charge
or control of the Trustee or the Trust Administrator or of its property
or
affairs for the purpose of rehabilitation, conservation or liquidation,
then the
Depositor, the NIMS Insurer, the Servicers or the Master Servicer may
remove the
Trustee or the Trust Administrator, as applicable. If the Depositor,
a Servicer
or the Master Servicer removes the Trustee or the Trust Administrator
under the
authority of the immediately preceding sentence, the Depositor shall
promptly
appoint a successor Trustee or Trust Administrator, as applicable,
acceptable to
the NIMS Insurer, by written instrument, in duplicate, one copy of
which
instrument shall be delivered to the Trustee or Trust Administrator
so removed
and one copy to the successor Trustee or Trust Administrator.
The
Holders of Certificates entitled to at least 51% of the Voting Rights
(or the
NIMS Insurer upon failure of the Trustee to perform its obligations
hereunder)
may at any time remove the Trustee or the Trust Administrator and appoint
a
successor trustee acceptable to the NIMS Insurer, by written instrument
or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered
to the
Depositor, one complete set to the Trustee or Trust Administrator so
removed and
one complete set to the successor so appointed. A copy of such instrument
shall
be delivered to the Certificateholders, the Servicers and the Master
Servicer by
the Depositor.
The
Trust
Administrator (i) may not be the Originator, either Servicer, the Depositor
or
an affiliate of the Depositor unless the Trust Administrator is an
institutional
trust department, (ii) must be authorized to exercise corporate trust
powers
under the laws of its jurisdiction of organization, and (iii) must
be rated at
least “A/F1” by Fitch Ratings Inc. (“Fitch”), if Fitch is a Rating Agency, or
the equivalent rating by S&P or ▇▇▇▇▇’▇, or such other rating as is
acceptable to Fitch as evidenced by a Rating Agency confirmation. If
no
successor Trust Administrator shall have been appointed and shall have
accepted
appointment within 60 days after the Trust Administrator ceases to
be the Trust
Administrator pursuant to this Section 8.07, then the Trustee shall perform
the duties of the Trust Administrator pursuant to this Agreement. The
Trustee
shall notify the Rating Agencies of any change of Trust
Administrator.
Any
resignation or removal of the Trustee or Trust Administrator and appointment
of
a successor Trustee or Trust Administrator pursuant to any of the provisions
of
this Section shall not become effective until acceptance of appointment by
the successor trustee as provided in Section 8.08.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and
the Trust
Administrator shall at all times be the same Person.
| SECTION 8.08. |
Successor
Trustee or Trust Administrator.
|
Any
successor Trustee or Trust Administrator appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
NIMS Insurer, the Servicers, the Master Servicer and to its predecessor
Trustee
or Trust Administrator an instrument accepting such appointment hereunder,
and
thereupon the resignation or removal of the predecessor Trustee or
Trust
Administrator shall become effective, and such successor Trustee or
Trust
Administrator, without any further act, deed or conveyance, shall become
fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Trust
Administrator. The Depositor and the predecessor Trustee or Trust Administrator
shall execute and deliver such instruments and do such other things
as may
reasonably be required for fully and certainly vesting and confirming
in the
successor Trustee or Trust Administrator all such rights, powers, duties
and
obligations.
No
successor Trustee or Trust Administrator shall accept appointment as
provided in
this Section 8.08 unless at the time of such acceptance such successor
Trustee or Trust Administrator shall be eligible under the provisions
of
Section 8.06 and the appointment of such successor Trustee or Trust
Administrator shall not result in a downgrading of the Regular Certificates
by
any Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon
acceptance of appointment by a successor Trustee or Trust Administrator
as
provided in this Section 8.08, the successor Trustee or Trust Administrator
shall mail notice of the appointment of a successor Trustee or Trust
Administrator hereunder to all Holders of Certificates at their addresses
as
shown in the Certificate Register and to each Rating Agency.
Any
Person appointed as successor trust administrator pursuant to this
Agreement
shall also be required to serve as successor supplemental interest
trust trustee
under the Interest Rate Swap Agreement.
| SECTION 8.09. |
Merger
or Consolidation of Trustee or Trust
Administrator.
|
Any
entity into which the Trustee or the Trust Administrator may be merged
or
converted or with which it may be consolidated, or any entity resulting
from any
merger, conversion or consolidation to which the Trustee or the Trust
Administrator shall be a party, or any entity succeeding to the business
of the
Trustee or Trust Administrator, shall be the successor of the Trustee
or the
Trust Administrator hereunder, as applicable, provided such entity
shall be
eligible under the provisions of Section 8.06 and 8.08, without the
execution or filing of any paper or any further act on the part of
any of the
parties hereto, anything herein to the contrary notwithstanding.
| SECTION 8.10. |
Appointment
of Co-Trustee or Separate Trustee.
|
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting
any legal
requirements of any jurisdiction in which any part of REMIC I or property
securing the same may at the time be located, the Trustee shall have
the power
and shall execute and deliver all instruments to appoint one or more
Persons
approved by the Trustee and the NIMS Insurer to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate
trustees,
of all or any part of REMIC I, and to vest in such Person or Persons,
in such
capacity, such title to REMIC I, or any part thereof, and, subject
to the other
provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Trustee may consider necessary or desirable. Any
such
co-trustee or separate trustee shall be subject to the written approval
of the
NIMS Insurer. If the NIMS Insurer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, the Trustee
alone
shall have the power to make such appointment. No co-trustee or separate
trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s)
shall be
required under Section 8.08 hereof.
In
the
case of any appointment of a co-trustee or separate trustee pursuant
to this
Section 8.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or
performed by the Trustee and such separate trustee or co-trustee jointly,
except
to the extent that under any law of any jurisdiction in which any particular
act
or acts are to be performed by the Trustee (whether as Trustee hereunder
or as
successor to a defaulting Master Servicer hereunder), the Trustee shall
be
incompetent or unqualified to perform such act or acts, in which event
such
rights, powers, duties and obligations (including the holding of title
to REMIC
I or any portion thereof in any such jurisdiction) shall be exercised
and
performed by such separate trustee or co-trustee at the direction of
the
Trustee.
Any
notice, request or other writing given to the Trustee shall be deemed
to have
been given to each of the then separate trustees and co-trustees, as
effectively
as if given to each of them. Every instrument appointing any separate
trustee or
co-trustee shall refer to this Agreement and the conditions of this
Article
VIII. Each separate trustee and co-trustee, upon its acceptance of
the trust
conferred, shall be vested with the estates or property specified in
its
instrument of appointment, either jointly with the Trustee, or separately,
as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to
the conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy thereof
given to the
NIMS Insurer.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee,
its
agent or attorney-in-fact, with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this
Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall
die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised
by the
Trustee, to the extent permitted by law, without the appointment of
a new or
successor trustee or co-trustee.
| SECTION 8.11. |
Appointment
of Office or Agency; Appointment of
Custodian.
|
The
Trust
Administrator will appoint an office or agency in the City of Minneapolis,
Minnesota where the Certificates may be surrendered for registration
of transfer
or exchange, and presented for final distribution, and where notices
and demands
to or upon the Trust Administrator in respect of the Certificates and
this
Agreement may be served.
The
Trustee may, with the consent of the Depositor, the Servicers, the
Master
Servicer and the NIMS Insurer, appoint a Custodian to hold all or a
portion of
the Mortgage Files as agent for the Trustee. The appointment of the
Custodian
may at any time be terminated and a substitute Custodian appointed
therefor upon
the reasonable request of the Servicers, the Master Servicer or the
NIMS Insurer
to the Trustee, the consent to which shall not be unreasonably withheld.
▇▇▇▇▇
Fargo Bank, N.A. is hereby appointed as Custodian, and the Depositor,
the
Servicers and the Master Servicer each consent to such appointment.
Subject to
Article VIII hereof, the Trustee agrees to comply with the terms of
this
Agreement and to enforce the terms and provisions hereof against the
Custodian,
if applicable, for the benefit of the Certificateholders having an
interest in
any Mortgage File held by the Custodian. The Custodian shall be a depository
institution or trust company subject to supervision by federal or state
authority, shall have combined capital and surplus of at least $10,000,000
and
shall be qualified to do business in the jurisdiction in which it holds
any
Mortgage File. Subject to Section 8.02(a) and Section 2.02, in no event
shall the appointment of the Custodian pursuant to this Agreement diminish
the
obligations of the Trustee hereunder.
| SECTION 8.12. |
Representations
and Warranties.
|
Each
of
the Trustee, the Custodian and the Trust Administrator hereby represents
and
warrants to the Servicers, the Master Servicer and the Depositor, as
of the
Closing Date, that:
(i) It
is a
national banking association duly organized, validly existing and in
good
standing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by it, and the performance
and
compliance with the terms of this Agreement by it, will not violate
its articles
of association or bylaws or constitute a default (or an event which,
with notice
or lapse of time, or both, would constitute a default) under, or result
in the
breach of, any material agreement or other instrument to which it is
a party or
which is applicable to it or any of its assets.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution,
delivery and
performance of this Agreement, and has duly executed and delivered
this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the
other
parties hereto, constitutes a valid, legal and binding obligation of
it,
enforceable against it in accordance with the terms hereof, subject
to (A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium
and
other laws affecting the enforcement of creditors’ rights generally, and (B)
general principles of equity, regardless of whether such enforcement
is
considered in a proceeding in equity or at law.
(v) It
is not
in violation of, and its execution and delivery of this Agreement and
its
performance and compliance with the terms of this Agreement will not
constitute
a violation of, any law, any order or decree of any court or arbiter,
or any
order, regulation or demand of any federal, state or local governmental
or
regulatory authority, which violation, in its good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of it
to perform its obligations under this Agreement or its financial
condition.
(vi) No
litigation is pending or, to the best of its knowledge, threatened
against it,
which would prohibit it from entering into this Agreement or, in its
good faith
reasonable judgment, is likely to materially and adversely affect either
the
ability of it to perform its obligations under this Agreement or its
financial
condition.
ARTICLE
IX
TERMINATION
| SECTION 9.01. |
Termination
Upon Repurchase or Liquidation of All Mortgage
Loans.
|
(a) Subject
to Section 9.02, the respective obligations and responsibilities under this
Agreement of the Depositor, the Servicers, the Master Servicer, the
Trust
Administrator and the Trustee (other than the indemnification obligations
of
each Servicer and the Master Servicer pursuant to Section 6.03 and of the
Servicers to make remittances to the Trust Administrator and the Trust
Administrator to make payments in respect of the REMIC I Regular Interests
and
the Classes of Certificates as hereinafter set forth) shall terminate
upon
payment to the Certificateholders and the deposit of all amounts held
by or on
behalf of the Trust Administrator and required hereunder to be so paid
or
deposited on the Distribution Date coinciding with or following the
earlier to
occur of (i) the purchase by the Terminator (as defined below) on a
servicing
retained basis of all Mortgage Loans and each REO Property remaining
in REMIC I
and (ii) the final payment or other liquidation (or any advance with
respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC
I;
provided, however, that in no event shall the trust created hereby
continue
beyond the earlier of (i) the expiration of 21 years from the death
of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador
of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof
and (ii) the
Latest Possible Maturity Date as defined in the Preliminary Statement.
Subject
to Section 3.10 hereof, the purchase by the Terminator of all Mortgage
Loans and each REO Property remaining in REMIC I shall be at a price
(the
“Termination Price”) equal to the greater of (i) the Stated Principal Balance of
the Mortgage Loans and the appraised value of any REO Properties, such
appraisal
to be conducted by an Independent appraiser mutually agreed upon by
the
Terminator and the Trust Administrator in their reasonable discretion
and (ii)
the fair market value of all of the assets of REMIC I (as determined
by the
Terminator and the Trust Administrator, as of the close of business
on the third
Business Day next preceding the date upon which notice of any such
termination
is furnished to Certificateholders pursuant to clause (c) of this
Section 9.01) in each case, plus accrued and unpaid interest thereon at the
weighted average of the Mortgage Rates through the end of the Due Period
preceding the final Distribution Date plus unreimbursed Advances, Servicing
Advances and any unpaid Servicing Fees allocable to such Mortgage Loans
and REO
Properties and any other amounts owed to each Servicer, the Master
Servicer, the
Trust Administrator or the Trustee under this Agreement, any accrued
and unpaid
Net WAC Rate Carryover Amount and any Swap Termination Payment payable
to the
Swap Provider then remaining unpaid or which is due to the exercise
of such
option; provided, however, such option may only be exercised if (i)
the
Termination Price is sufficient to pay all interest accrued on, as
well as
amounts necessary to retire the principal balance of, each class of
notes issued
pursuant to the Indenture and any remaining amounts owed to the trustee
under
the Indenture and the NIMS Insurer on the date such notes are retired
and (ii)
the fair market value of the Mortgage Loans and REO Properties determined
as
described above is at least equal to the Stated Principal Balance of
the
Mortgage Loans (after giving effect to scheduled payments of principal
due
during the related Due Period, to the extent received or advanced,
and
unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties.
(b) The
majority holder of the Class CE Certificates (so long as such Holder
is not the
Seller or an affiliate of the Seller), or if such majority holder fails
to
exercise such right, each Servicer, or if the Servicer fail to exercise
such
right, the Master Servicer, or if the Master Servicer fails to exercise
such
right, the NIMS Insurer, shall have the right (the party exercising
such right,
the “Terminator”), to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I pursuant to clause (i) of the preceding paragraph
no later
than the Determination Date in the month immediately preceding the
Distribution
Date on which the Certificates will be retired; provided, however,
that the
Terminator may elect to purchase all of the Mortgage Loans and each
REO Property
remaining in REMIC I pursuant to clause (i) above only if the
aggregate Stated Principal Balance of the Mortgage Loans and each REO
Property
remaining in the Trust Fund at the time of such election is equal to
or less
than 10% of the aggregate Stated Principal Balance of the Mortgage
Loans as of
the Cut-off Date.
By
acceptance of the Residual Certificates, the Holder of the Residual
Certificates
agrees for so long as any notes insured by the NIMS Insurer and secured
by all
or a portion of the Class CE, Class P, Class R or Class R-X Certificates
are
outstanding, in connection with any termination hereunder, to assign
and
transfer any amounts in excess of par, and to the extent received in
respect of
such termination, to pay any such amounts to the Holders of the Class
CE
Certificates.
In
connection with any termination pursuant to this Section 9.01(b):
(i) At
least twenty (20) days prior to the latest date on which notice of
such optional
termination is required to be mailed to the Certificateholders pursuant
to
Section 9.01(c), the Terminator shall notify in writing (which may
be done in
electronic format) the Swap Provider of the final Distribution Date
on which the
Terminator intends to terminate the Trust Fund;
(ii) No
later
than 4:00 pm (New York City time) four (4) Business Days prior to the
final
Distribution Date specified in the notices required pursuant to Sections
9.01(c), the Trust Administrator shall request in writing (in accordance
with
the applicable provision of the Interest Rate Swap Agreement) and by
phone from
the Swap Provider the amount of the Estimated Swap Termination Payment.
The Swap
Provider shall, no later than 2:00 pm (New York City time) on the following
Business Day, notify in writing (which may be done in electronic format)
the
Trust Administrator of the amount of the Estimated Swap Termination
Payment and
the Trust Administrator shall promptly on the same day notify the Terminator
of
the amount of the Estimated Swap Termination Payment; and
(iii) Two
(2)
Business Days prior to the final Distribution Date specified in the
notices
required pursuant to Sections 9.01(c), (x) the Terminator shall, no
later than
1:00 pm (New York City time) on such day, deliver to the Trust Administrator
and
the Trust Administrator shall deposit funds in the Distribution Account
in an
amount equal to the sum of the Termination Price (which shall be based
on the
Estimated Swap Termination Payment), and (y) if the Trust Administrator
shall
have determined that the all of the requirements for Optional Termination
have
been met, including without limitation the deposit required pursuant
to the
immediately preceding clause (x) as well as the requirements specified
in
Section 9.01(c), then the Trust Administrator shall, on the same Business
Day,
provide written notice to the Terminator and the Swap Provider (in
accordance
with the applicable provision of the Interest Rate Swap Agreement)
confirming
(a) its receipt of the Termination Price (which shall be based on the
Estimated
Swap Termination Payment), and (b) that all other requirements of the
Optional
Termination have been met (the “Optional Termination Notice”). Upon the delivery
of the Optional Termination Notice by the Trust Administrator pursuant
to the
preceding sentence, (i) the optional termination shall become irrevocable,
(ii)
the notice to Certificateholders of such optional termination provided
pursuant
to Section 9.01(c) shall become unrescindable, (iii) the Swap Provider
shall
determine the Swap Termination Payment in accordance with the Interest
Rate Swap
Agreement (which shall not exceed the Estimated Swap Termination Payment),
and
(iv) the Swap Provider shall provide to the Trust Administrator written
notice
of the amount of the Swap Termination Payment not later than one (1)
Business
Day prior to the final Distribution Date specified in the notices required
pursuant to Sections 9.01(c).
(c) Notice
of
the liquidation of the Certificates shall be given promptly by the
Trust
Administrator by letter to Certificateholders and the NIMS Insurer
mailed (a) in
the event such notice is given in connection with the purchase of the
Mortgage
Loans and each REO Property by the Terminator, not earlier than the
10th
day and
not later than the 20th
day of
the month next preceding the month of the final distribution on the
Certificates
or (b) otherwise during the month of such final distribution on or
before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and the final payment
in respect
of the REMIC I Regular Interests and the Certificates will be made
upon
presentation and surrender of the related Certificates at the office
of the
Trust Administrator therein designated, (ii) the amount of any such
final
payment, (iii) that no interest shall accrue in respect of the REMIC
I Regular
Interests or the Certificates from and after the Accrual Period relating
to the
final Distribution Date therefor and (iv) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being
made only
upon presentation and surrender of the Certificates at the office of
the Trust
Administrator. In the event such notice is given in connection with
the purchase
of all of the Mortgage Loans and each REO Property remaining in REMIC
I by the
Terminator, the Terminator shall deliver to the Trust Administrator
for deposit
in the Distribution Account not later than the last Business Day of
the month
next preceding the month of the final distribution on the Certificates
an amount
in immediately available funds equal to the Termination Price. The
Trust
Administrator shall remit to the related Servicer from such funds deposited
in
the Distribution Account (i) any amounts which the related Servicer
would be
permitted to withdraw and retain from the Collection Account pursuant
to Section
3.11 and (ii) any other amounts otherwise payable by the Trust Administrator
to
the related Servicer from amounts on deposit in the Distribution Account
pursuant to the terms of this Agreement, in each case prior to making
any final
distributions pursuant to Section 9.01(d) below. Upon certification
to the
Trustee and the Trust Administrator by the Terminator of the making
of such
final deposit, the Trust Administrator shall promptly release to the
Terminator
the Mortgage Files for the remaining Mortgage Loans, and the Trustee
shall
execute all assignments, endorsements and other instruments necessary
to
effectuate such transfer.
(d) Upon
presentation of the Certificates by the Certificateholders on the final
Distribution Date, the Trust Administrator shall distribute to each
Certificateholder so presenting and surrendering its Certificates the
amount
otherwise distributable on such Distribution Date in accordance with
Section 4.01 in respect of the Certificates so presented and surrendered.
Any funds not distributed to any Holder or Holders of Certificates
being retired
on such Distribution Date because of the failure of such Holder or
Holders to
tender their Certificates shall, on such date, be set aside and held
in trust
and credited to the account of the appropriate non-tendering Holder
or Holders.
If any Certificates as to which notice has been given pursuant to this
Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trust Administrator
shall
mail a second notice to the remaining non-tendering Certificateholders
to
surrender their Certificates for cancellation in order to receive the
final
distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trust Administrator shall, directly or through an agent, mail a
final notice
to the remaining non-tendering Certificateholders concerning surrender
of their
Certificates. The costs and expenses of maintaining the funds in trust
and of
contacting such Certificateholders shall be paid out of the assets
remaining in
the Trust Fund. If within one year after the final notice any such
Certificates
shall not have been surrendered for cancellation, the Trust Administrator
shall
pay to UBS Securities LLC all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No
interest
shall accrue or be payable to any Certificateholder on any amount held
in trust
by the Trust Administrator as a result of such Certificateholder’s failure to
surrender its Certificate(s) for final payment thereof in accordance
with this
Section 9.01. Any such amounts held in trust by the Trust Administrator
shall be held in an Eligible Account and the Trust Administrator may
direct any
depository institution maintaining such account to invest the funds
in one or
more Permitted Investments. All income and gain realized from the investment
of
funds deposited in such accounts held in trust by the Trust Administrator
shall
be for the benefit of the Trust Administrator; provided, however, that
the Trust
Administrator shall deposit in such account the amount of any loss
of principal
incurred in respect of any such Permitted Investment made with funds
in such
accounts immediately upon the realization of such loss.
Immediately
following the deposit of funds in trust hereunder in respect of the
Certificates, the Trust Fund shall terminate.
| SECTION 9.02. |
Additional
Termination Requirements.
|
(a) In
the
event that the Terminator purchases all the Mortgage Loans and each
REO Property
or the final payment on or other liquidation of the last Mortgage Loan
or REO
Property remaining in REMIC I pursuant to Section 9.01, the Trust Fund
shall be terminated in accordance with the following additional requirements,
unless the Trust Administrator and the Servicers have received an Opinion
of
Counsel, which Opinion of Counsel shall be at the expense of the Terminator
(or
in connection with a termination resulting from the final payment on
or other
liquidation of the last Mortgage Loan or REO Property remaining in
REMIC I,
which Opinion of Counsel shall be at the expense of the person seeking
nonadherence to the following additional requirements but which in
no event
shall be at the expense of the Trust Fund or, unless it is the person
seeking
nonadherence to the following additional requirements, the Servicers
or the
Trust Administrator), to the effect that the failure of REMIC I to
comply with
such additional requirements of this Section 9.02 will not (A) result in
the imposition on the Trust Fund of taxes on “prohibited transactions,” as
described in Section 860F of the Code, or (B) cause REMIC I to fail to
qualify as a REMIC at any time that any Certificate is outstanding:
(i) The
Trust
Administrator shall specify the first day in the 90-day liquidation
period in a
statement attached to each Trust REMIC’s final Tax Return pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder, as evidenced by an Opinion of Counsel obtained at the expense
of the
Terminator;
(ii) During
such 90-day liquidation period and, at or prior to the time of making
of the
final payment on the Certificates, the Trustee shall sell all of the
assets of
REMIC I to the Terminator for cash; and
(iii) At
the
time of the making of the final payment on the Certificates, the Trust
Administrator shall distribute or credit, or cause to be distributed
or
credited, to the Holders of the Residual Certificates all cash on hand
in the
Trust Fund (other than cash retained to meet claims), and the Trust
Fund shall
terminate at that time.
(b) At
the
expense of the Terminator, the Depositor shall prepare or cause to
be prepared
the documentation required in connection with the adoption of a plan
of
liquidation of each Trust REMIC pursuant to this Section 9.02.
(c) By
their
acceptance of Certificates, the Holders thereof hereby agree to authorize
the
Trust Administrator to specify the 90-day liquidation period for each
Trust
REMIC, which authorization shall be binding upon all successor
Certificateholders.
ARTICLE
X
REMIC
PROVISIONS
| SECTION 10.01. |
REMIC
Administration.
|
(a) The
Trustee shall elect to treat each Trust REMIC as a REMIC under the
Code and, if
necessary, under applicable state law. Each such election will be made
by the
Trustee on Form 1066 or other appropriate federal tax or information
return or
any appropriate state return for the taxable year ending on the last
day of the
calendar year in which the Certificates are issued. For the purposes
of the
REMIC election in respect of REMIC I, the REMIC I Regular Interests
shall be
designated as the Regular Interests in REMIC I and the Class R-I Interest
shall
be designated as the Residual Interest in REMIC I. For the purposes
of the REMIC
election in respect of REMIC II, the REMIC II Regular Interests shall
be
designated as the Regular Interests in REMIC II and the Class R-II
Interest
shall be designated as the Residual Interest in REMIC II. The Class
A
Certificates, the Mezzanine Certificates, the Class CE Interest, the
Class P
Interest and the Class Swap-IO Interest shall be designated as the
Regular
Interests in REMIC III and the Class R-III Interest shall be designated
as the
Residual Interest in REMIC III. The CE Certificates shall be designated
as the
Regular Interests in REMIC IV and the Class R-IV Interest shall be designated as
the Residual Interest in REMIC IV. The Class P Certificates shall be
designated
as the Regular Interests in REMIC V and the Class R-V Interest shall
be
designated as the Residual Interest in REMIC V. REMIC VI Regular Interest
SWAP-IO shall be designated as the Regular Interests in REMIC VI and
the Class
R-VI Interest shall be designated as the Residual Interest in REMIC
VI. The
Trustee shall not permit the creation of any “interests” in any Trust REMIC
(within the meaning of Section 860G of the Code) other than the interests
identified above as Regular Interests or Residual Interests in REMIC
I, REMIC
II, REMIC III, REMIC IV, REMIC V and REMIC VI.
(b) The
Closing Date is hereby designated as the “Startup Day” of each Trust REMIC
within the meaning of Section 860G(a)(9) of the Code.
(c) The
Trust
Administrator shall be reimbursed for any and all expenses relating
to any tax
audit of the Trust Fund (including, but not limited to, any professional
fees or
any administrative or judicial proceedings with respect to any Trust
REMIC that
involve the Internal Revenue Service or state tax authorities), including
the
expense of obtaining any tax related Opinion of Counsel except as specified
herein. The Trust Administrator, as agent for each Trust REMIC’s tax matters
person shall (i) act on behalf of the Trust Fund in relation to any
tax matter
or controversy involving any Trust REMIC and (ii) represent the Trust
Fund in
any administrative or judicial proceeding relating to an examination
or audit by
any governmental taxing authority with respect thereto. The holder
of the
largest Percentage Interest of the Residual Certificates shall be designated,
in
the manner provided under Treasury Regulations Section 1.860F-4(d)
and Treasury
Regulations Section 301.6231(a)(7)-1, as the tax matters person of
the related
REMIC created hereunder. By their acceptance thereof, the holder of
the largest
Percentage Interest of the Residual Certificates hereby agrees to irrevocably
appoint the Trust Administrator or an Affiliate as its agent to perform
all of
the duties of the tax matters person for the Trust Fund.
(d) The
Trust
Administrator shall prepare, sign and file all of the Tax Returns (including
Form 8811, which must be filed within 30 days following the Closing
Date) in
respect of each Trust REMIC. The expenses of preparing and filing such
returns
shall be borne by the Trust Administrator without any right of reimbursement
therefor.
(e) The
Trust
Administrator shall perform on behalf of each Trust REMIC all reporting
and
other tax compliance duties that are the responsibility of such REMIC
under the
Code, the REMIC Provisions or other compliance guidance issued by the
Internal
Revenue Service or any state or local taxing authority. Among its other
duties,
as required by the Code, the REMIC Provisions or other such compliance
guidance,
the Trust Administrator shall provide (i) to any Transferor of a Residual
Certificate such information as is necessary for the application of
any tax
relating to the transfer of a Residual Certificate to any Person who
is not a
Permitted Transferee, (ii) to the Certificateholders such information
or reports
as are required by the Code or the REMIC Provisions including reports
relating
to interest, original issue discount and market discount or premium
(using the
Prepayment Assumption as required) and (iii) to the Internal Revenue
Service the
name, title, address and telephone number of the person who will serve
as the
representative of each Trust REMIC. The Depositor shall provide or
cause to be
provided to the Trust Administrator, within ten (10) days after the
Closing
Date, all information or data that the Trust Administrator reasonably
determines
to be relevant for tax purposes as to the valuations and issue prices
of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The
Trust
Administrator shall take such action and shall cause each Trust REMIC
to take
such action as shall be necessary to create or maintain the status
thereof as a
REMIC under the REMIC Provisions. Neither the Trust Administrator nor
the
Trustee shall take any action or cause the Trust Fund to take any action
or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger
the
status of any Trust REMIC as a REMIC or (ii) result in the imposition
of a tax
upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an “Adverse REMIC Event”) unless the Trustee, the Trust
Administrator and the NIMS Insurer have received an Opinion of Counsel,
addressed to the Trustee, the NIMS Insurer and the Trust Administrator
(at the
expense of the party seeking to take such action but in no event at
the expense
of the Trustee or the Trust Administrator) to the effect that the contemplated
action will not, with respect to any Trust REMIC, endanger such status
or result
in the imposition of such a tax, nor shall the Servicers take or fail
to take
any action (whether or not authorized hereunder) as to which the Trustee,
the
Trust Administrator or the NIMS Insurer has advised it in writing that
it has
received an Opinion of Counsel to the effect that an Adverse REMIC
Event could
occur with respect to such action; provided that the Servicers may
conclusively
rely on such Opinion of Counsel and shall incur no liability for its
action or
failure to act in accordance with such Opinion of Counsel. In addition,
prior to
taking any action with respect to any Trust REMIC or the respective
assets of
each, or causing any Trust REMIC to take any action, which is not contemplated
under the terms of this Agreement, the Servicers will consult with
the Trustee,
the Trust Administrator, the Master Servicer, the NIMS Insurer or their
respective designees, in writing, with respect to whether such action
could
cause an Adverse REMIC Event to occur with respect to any Trust REMIC
and the
Servicers shall not take any such action or cause any Trust REMIC to
take any
such action as to which the Trustee, the Trust Administrator, the Master
Servicer or the NIMS Insurer has advised it in writing that an Adverse
REMIC
Event could occur; provided that the Servicers may conclusively rely
on such
writing and shall incur no liability for its action or failure to act
in
accordance with such writing. The Trustee, the Trust Administrator,
the Master
Servicer or the NIMS Insurer may consult with counsel to make such
written
advice, and the cost of same shall be borne by the party seeking to
take the
action not permitted by this Agreement, but in no event shall such
cost be an
expense of the Trustee, the Trust Administrator or the Master Servicer.
At all
times as may be required by the Code, the Trust Administrator will
ensure that
substantially all of the assets of REMIC I will consist of “qualified mortgages”
as defined in Section 860G(a)(3) of the Code and “permitted investments” as
defined in Section 860G(a)(5) of the Code, to the extent such obligations
are within the Trust Administrator’s control and not otherwise inconsistent with
the terms of this Agreement.
(g) In
the
event that any tax is imposed on “prohibited transactions” of any REMIC created
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income
from foreclosure property” of such REMIC as defined in Section 860G(c) of
the Code, on any contributions to any such REMIC after the Startup
Day therefor
pursuant to Section 860G(d) of the Code, or any other tax is imposed by the
Code or any applicable provisions of state or local tax laws, such
tax shall be
charged (i) to the Trust Administrator pursuant to Section 10.03 hereof, if
such tax arises out of or results from a breach by the Trust Administrator
of
any of its obligations under this Article X, (ii) to the Trustee pursuant
to
Section 10.03 hereof, if such tax arises out of or results from a breach by
the Trustee of any of its obligations under this Article X, (iii) to
the Master
Servicer pursuant to Section 10.03 hereof, if such tax arises out of or
results from a breach by the Master Servicer of any of its obligations
under
Article III or this Article X, (iv) to the Servicers pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or
this Article
X or (v) against amounts on deposit in the Distribution Account and
shall be
paid by withdrawal therefrom.
(h) [Reserved].
(i) The
Trust
Administrator shall, for federal income tax purposes, maintain books
and records
with respect to each Trust REMIC on a calendar year and on an accrual
basis.
(j) Following
the Startup Day, none of the Servicers, the Master Servicer, the Trust
Administrator or the Trustee shall accept any contributions of assets
to any
Trust REMIC other than in connection with any Qualified Substitute
Mortgage Loan
delivered in accordance with Section 2.03 unless it shall have received an
Opinion of Counsel to the effect that the inclusion of such assets
in the Trust
Fund will not cause the related REMIC to fail to qualify as a REMIC
at any time
that any Certificates are outstanding or subject such REMIC to any
tax under the
REMIC Provisions or other applicable provisions of federal, state and
local law
or ordinances.
(k) None
of
the Trustee, the Trust Administrator, the Servicers or the Master Servicer
shall
enter into any arrangement by which any Trust REMIC will receive a
fee or other
compensation for services nor permit either REMIC to receive any income
from
assets other than “qualified mortgages” as defined in Section 860G(a)(3) of
the Code or “permitted investments” as defined in Section 860G(a)(5) of the
Code.
| SECTION 10.02. |
Prohibited
Transactions and Activities.
|
None
of
the Depositor, the Servicers, the Master Servicer, the Trust Administrator
or
the Trustee shall sell, dispose of or substitute for any of the Mortgage
Loans
(except in connection with (i) the foreclosure of a Mortgage Loan,
including but
not limited to, the acquisition or sale of a Mortgaged Property acquired
by deed
in lieu of foreclosure, (ii) the bankruptcy of REMIC I, (iii) the termination
of
REMIC I pursuant to Article IX of this Agreement, (iv) a substitution
pursuant
to Article II of this Agreement or (v) a purchase of Mortgage Loans
pursuant to
Article II or III of this Agreement), nor acquire any assets for any
Trust REMIC
(other than REO Property acquired in respect of a defaulted Mortgage
Loan), nor
sell or dispose of any investments in the Collection Account or the
Distribution
Account for gain, nor accept any contributions to any Trust REMIC after
the
Closing Date (other than a Qualified Substitute Mortgage Loan delivered
in
accordance with Section 2.03), unless it has received an Opinion of
Counsel, addressed to the Trustee, the Trust Administrator and the
NIMS Insurer
(at the expense of the party seeking to cause such sale, disposition,
substitution, acquisition or contribution but in no event at the expense
of the
Trustee or the Trust Administrator) that such sale, disposition, substitution,
acquisition or contribution will not (a) affect adversely the status
of any
Trust REMIC as a REMIC or (b) cause any Trust REMIC to be subject to
a tax on
“prohibited transactions” or “contributions” pursuant to the REMIC
Provisions.
| SECTION 10.03. |
Servicer,
Master Servicer and Trustee
Indemnification.
|
(a) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status
as a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due
to (i) the
negligent performance by the Trustee or the Trust Administrator of
its duties
and obligations set forth herein or (ii) any state, local or franchise
taxes
imposed upon the Trust Fund as a result of the location of the Trustee
or the
Trust Administrator or any co-trustee, the Trustee or the Trust Administrator,
as applicable, shall indemnify the NIMS Insurer, the Servicers, the
Master
Servicer and the Trust Fund against any and all Losses resulting from
such
negligence, including, without limitation, any reasonable attorneys’ fees
imposed on or incurred as a result of a breach of the Trustee’s or the Trust
Administrator’s, as applicable, or any co-trustee’s covenants; provided,
however,
that
the Trustee or the Trust Administrator, as applicable, shall not be
liable for
any such Losses attributable to the action or inaction of any Servicer,
the
Master Servicer, the Depositor or the Holder of such Residual Certificate,
as
applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Trustee or the
Trust
Administrator, as applicable, has relied. The foregoing shall not be
deemed to
limit or restrict the rights and remedies of the Holder of such Residual
Certificate now or hereafter existing at law or in equity. Notwithstanding
the
foregoing, however, in no event shall the Trustee or the Trust Administrator,
as
applicable, have any liability (1) for any action or omission that
is taken in
accordance with and in compliance with the express terms of, or which
is
expressly permitted by the terms of, this Agreement, (2) for any Losses
other
than arising out of a negligent performance by the Trustee or the Trust
Administrator, as applicable, of its duties and obligations set forth
herein,
and (3) for any special or consequential damages to Certificateholders
(in
addition to payment of principal and interest on the Certificates).
(b) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status
as a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due
to the
negligent performance by the Master Servicer of its duties and obligations
set
forth herein, the Master Servicer shall indemnify the NIMS Insurer,
the
Servicers, the Trustee, the Trust Administrator and the Trust Fund
against any
and all losses, claims, damages, liabilities or expenses (“Losses”) resulting
from such negligence, including, without limitation, any reasonable
attorneys’
fees imposed on or incurred as a result of a breach of the Master Servicer’s
covenants; provided,
however,
that
the Master Servicer shall not be liable for any such Losses attributable
to the
action or inaction of the Trustee, the Trust Administrator, any Servicer,
the
Depositor or the Holder of such Residual Certificate, as applicable,
nor for any
such Losses resulting from misinformation provided by the Holder of
such
Residual Certificate on which the Master Servicer has relied. The foregoing
shall not be deemed to limit or restrict the rights and remedies of
the Holder
of such Residual Certificate now or hereafter existing at law or in
equity.
Notwithstanding the foregoing, however, in no event shall the Master
Servicer
have any liability (1) for any action or omission that is taken in
accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other
than arising
out of a negligent performance by the Master Servicer of its duties
and
obligations set forth herein, and (3) for any special or consequential
damages
to Certificateholders (in addition to payment of principal and interest
on the
Certificates).
(c) In
the
event that any Trust REMIC fails to qualify as a REMIC, loses its status
as a
REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due
to (i) the
negligent performance by the Servicers of its duties and obligations
set forth
herein or (ii) any state, local or franchise taxes imposed upon the
Trust Fund
as a result of the location of a Servicer or any sub-servicer, each
Servicer
shall indemnify the NIMS Insurer, the Master Servicer, the Trustee,
the Trust
Administrator and the Trust Fund against any and all losses, claims,
damages,
liabilities or expenses (“Losses”) resulting from such negligence, including,
without limitation, any reasonable attorneys’ fees imposed on or incurred as a
result of a breach of the related Servicer’s or any sub-servicer’s covenants;
provided,
however,
that
each Servicer shall not be liable for any such Losses attributable
to the action
or inaction of the Master Servicer, the Trustee, the Trust Administrator,
the
Depositor or the Holder of such Residual Certificate, as applicable,
nor for any
such Losses resulting from misinformation provided by the Holder of
such
Residual Certificate on which the related Servicer has relied. The
foregoing
shall not be deemed to limit or restrict the rights and remedies of
the Holder
of such Residual Certificate now or hereafter existing at law or in
equity.
Notwithstanding the foregoing, however, in no event shall a Servicer
have any
liability (1) for any action or omission that is taken in accordance
with and in
compliance with the express terms of, or which is expressly permitted
by the
terms of, this Agreement, (2) for any Losses other than arising out
of a
negligent performance by the related Servicer of its duties and obligations
set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest
on the
Certificates).
ARTICLE XI
MISCELLANEOUS
PROVISIONS
| SECTION 11.01. |
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, each Servicer,
the
Master Servicer, the Trust Administrator and the Trustee with the consent
of the
NIMS Insurer and without the consent of any of the Certificateholders,
(i) to
cure any ambiguity or defect, (ii) to correct, modify or supplement
any
provisions herein (including to give effect to the expectations of
Certificateholders), or (iii) to make any other provisions with respect
to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement, provided that such
action
shall not adversely affect in any material respect the interests of
any
Certificateholder as evidenced by either (i) an Opinion of Counsel
delivered to
the Servicers, the Master Servicer, the Trustee, the Trust Administrator
and the
NIMS Insurer or (ii) confirmation from the Rating Agencies, delivered
to the
Servicers, the Master Servicer, the Trustee, the Trust Administrator
and the
NIMS Insurer, that such amendment will not result in the reduction
or withdrawal
of the rating of any outstanding Class of Certificates. No amendment
shall be
deemed to adversely affect in any material respect the interests of
any
Certificateholder who shall have consented thereto, and no Opinion
of Counsel
shall be required to address the effect of any such amendment on any
such
consenting Certificateholder.
This
Agreement may also be amended from time to time by the Depositor, each
Servicer,
the Master Servicer, the Trust Administrator, the NIMS Insurer and
the Trustee
with the consent of the NIMS Insurer and the Holders of Certificates
entitled to
at least 66% of the Voting Rights for the purpose of adding any provisions
to or
changing in any manner or eliminating any of the provisions of this
Agreement or
of modifying in any manner the rights of the Swap Provider or Holders
of
Certificates; provided, however, that no such amendment shall (i) reduce
in any
manner the amount of, or delay the timing of, payments received on
Mortgage
Loans which are required to be distributed on any Certificate without
the
consent of the Holder of such Certificate, (ii) adversely affect in
any material
respect the interests of the Swap Provider or Holders of any Class
of
Certificates (as evidenced by either (i) an Opinion of Counsel delivered
to the
Trustee and the NIMS Insurer or (ii) confirmation from the Rating Agencies,
delivered to the Servicers, the Master Servicer, the Trustee and the
NIMS
Insurer, that such action will not result in the reduction or withdrawal
of the
rating of any outstanding Class of Certificates) in a manner, other
than as
described in (i), or (iii) modify the consents required by the immediately
preceding clauses (i) and (ii) without the consent of the Holders of
all
Certificates then outstanding. Notwithstanding any other provision
of this
Agreement, for purposes of the giving or withholding of consents pursuant
to
this Section 11.01, Certificates registered in the name of the Depositor,
the Servicers or the Master Servicer or any Affiliate thereof shall
be entitled
to Voting Rights with respect to matters affecting such
Certificates.
Notwithstanding
any contrary provision of this Agreement, none of the Trustee, the
Trust
Administrator or the NIMS Insurer shall consent to any amendment to
this
Agreement unless it shall have first received an Opinion of Counsel
satisfactory
to the NIMS Insurer to the effect that such amendment will not result
in the
imposition of any tax on any Trust REMIC pursuant to the REMIC Provisions
or
cause any Trust REMIC to fail to qualify as a REMIC at any time that
any
Certificates are outstanding.
Notwithstanding
any of the other provisions of this Section 11.01, none of the parties
to this
Agreement shall enter into any amendment to this Agreement that could
reasonably
be expected to have a material adverse effect on the interests of the
Swap
Provider hereunder (excluding, for the avoidance of doubt, any amendment
to this
Agreement that is entered into solely for the purpose of appointing
a successor
servicer, trust administrator, trustee or other service provider) without
the
prior written consent of the Swap Provider, which consent shall not
be
unreasonably withheld, conditioned or delayed.
Promptly
after the execution of any such amendment the Trust Administrator shall
notify
each Certificateholder and make available to each Certificateholder
and the NIMS
Insurer a copy of such amendment.
It
shall
not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance
thereof. The
manner of obtaining such consents and of evidencing the authorization
of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trust Administrator may prescribe.
The
cost
of any Opinion of Counsel to be delivered pursuant to this Section 11.01
shall be borne by the Person seeking the related amendment, but in
no event
shall such Opinion of Counsel be an expense of the Trustee or the Trust
Administrator.
The
Trustee and the Trust Administrator may, but neither shall be obligated
to enter
into any amendment pursuant to this Section that affects its rights, duties
and immunities under this Agreement or otherwise.
| SECTION 11.02. |
Recordation
of Agreement; Counterparts.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the
counties or
other comparable jurisdictions in which any or all of the properties
subject to
the Mortgages are situated, and in any other appropriate public recording
office
or elsewhere, such recordation to be effected by the Servicers at the
expense of
the Certificateholders, but only upon direction of the Trustee or the
Trust
Administrator accompanied by an Opinion of Counsel to the effect that
such
recordation materially and beneficially affects the interests of the
Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein
provided and
for other purposes, this Agreement may be executed simultaneously in
any number
of counterparts, each of which counterparts shall be deemed to be an
original,
and such counterparts shall constitute but one and the same
instrument.
| SECTION 11.03. |
Limitation
on Rights of Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not operate to terminate
this
Agreement or the Trust, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action
or
proceeding in any court for a partition or winding up of the Trust
Fund, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto
or any of them.
No
Certificateholder shall have any right to vote (except as expressly
provided for
herein) or in any manner otherwise control the operation and management
of the
Trust, or the obligations of the parties hereto, nor shall anything
herein set
forth, or contained in the terms of any of the Certificates, be construed
so as
to constitute the Certificateholders from time to time as partners
or members of
an association; nor shall any Certificateholder be under any liability
to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of
this
Agreement to institute any suit, action or proceeding in equity or
at law upon
or under or with respect to this Agreement, unless such Holder previously
shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written
request
upon the Trustee to institute such action, suit or proceeding in its
own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities
to be
incurred therein or thereby, and the Trustee, for 15 days after its
receipt of
such notice, request and offer of indemnity, shall have neglected or
refused to
institute any such action, suit or proceeding. It is understood and
intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatsoever by virtue of any provision
of this
Agreement to affect, disturb or prejudice the rights of the Holders
of any other
of such Certificates, or to obtain or seek to obtain priority over
or preference
to any other such Holder, or to enforce any right under this Agreement,
except
in the manner herein provided and for the equal, ratable and common
benefit of
all Certificateholders. For the protection and enforcement of the provisions
of
this Section, each and every Certificateholder and the Trustee shall
be entitled
to such relief as can be given either at law or in equity.
| SECTION 11.04. |
Governing
Law.
|
This
Agreement shall be construed in accordance with the laws of the State
of New
York and the obligations, rights and remedies of the parties hereunder
shall be
determined in accordance with such laws.
| SECTION 11.05. |
Notices.
|
All
directions, demands and notices hereunder shall be in writing and shall
be
deemed to have been duly given when received if personally delivered
at or
mailed by first class mail, postage prepaid, or by express delivery
service or
delivered in any other manner specified herein, to (a) in the case
of the
Depositor, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Legal (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), or such other address or telecopy
number
as may hereafter be furnished to the Servicers, the Master Servicer,
the Trust
Administrator, the NIMS Insurer and the Trustee in writing by the Depositor,
(b)
in the case of HomEq, HomEq Servicing, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Portfolio Management, Facsimile No.
(▇▇▇)
▇▇▇-▇▇▇▇ with a copy to HomEq Servicing, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department,
Facsimile
No. (▇▇▇) ▇▇▇-▇▇▇▇, or such other address or telecopy number as may
hereafter be
furnished to the Depositor, the Master Servicer, the Trust Administrator
and the
Trustee in writing by HomEq, (c) in the case of ▇▇▇▇▇ Fargo (in its
capacity as
Servicer), ▇▇▇▇▇ Fargo Home Mortgage, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇, MAC X2302-033, with a copy to ▇▇▇▇▇ Fargo Home
Mortgage,
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: General Counsel,
MAC
X2401-06T or such other address or telecopy number as may hereafter
be furnished
to the Depositor, the Master Servicer, the Trust Administrator and
the Trustee
in writing by ▇▇▇▇▇ Fargo in its capacity as Servicer (d) in the case
of the
Master Servicer, Custodian or the Trust Administrator, ▇▇▇▇▇ Fargo
Bank, N.A.,
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Client Manager-MABS
2006-HE4
(telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇ Fargo Bank,
N.A., ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Client Manager-MABS
2006-HE4 (telecopy number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇ Fargo
Bank,
N.A., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Client Manager-MABS 2006-HE4, or such other address or telecopy
number as may hereafter be furnished to the Servicers, the Trustee,
the NIMS
Insurer and the Depositor in writing by the Master Servicer, (e) in
the case of
the Trustee, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇,
Attention: Structured Finance/MASTR 2006-HE4 (telecopy number (▇▇▇)
▇▇▇-▇▇▇▇),
or such other address or telecopy number as may hereafter be furnished
to the
Depositor, the Servicers, the NIMS Insurer, the Trust Administrator
and the
Master Servicer in writing by the Trustee, or such other address or
telecopy
number as may hereafter be furnished to the Master Servicer, the NIMS
Insurer
and the Depositor in writing by the Trustee, (f) in the case of the
Credit Risk
Manager, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel, or such other address or telecopy number as may hereafter
be
furnished to the Depositor, the Servicers, the Trustee and the NIMS
Insurer and
(g) in the case of the NIMS Insurer, if any, the address set forth
in the
Indenture, or such other address or telecopy number as may hereafter
be
furnished to the Master Servicer, the Trust Administrator, the Depositor
and the
Trustee in writing by the NIMS Insurer. Any notice required or permitted
to be
given to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate
Register. Any
notice so mailed within the time prescribed in this Agreement shall
be
conclusively presumed to have been duly given when mailed, whether
or not the
Certificateholder receives such notice. A copy of any notice required
to be
telecopied hereunder also shall be mailed to the appropriate party
in the manner
set forth above.
| SECTION 11.06. |
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this
Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the
remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this
Agreement
or of the Certificates or the rights of the Holders thereof.
| SECTION 11.07. |
Notice
to Rating Agencies and the NIMS Insurer.
|
The
Trust
Administrator shall use its best efforts promptly to provide notice
to the
Rating Agencies and the NIMS Insurer with respect to each of the following
of
which it has actual knowledge:
(1) Any
material change or amendment to this Agreement;
(2) The
occurrence of any Servicer Event of Default or Master Servicer Event
of Default
that has not been cured or waived;
(3) The
resignation or termination of the Master Servicer, the Trust Administrator
or
the Trustee;
(4) The
repurchase or substitution of Mortgage Loans pursuant to or as contemplated
by
Section 2.03;
(5) The
final
payment to the Holders of any Class of Certificates;
(6) Any
change in the location of the Collection Account or the Distribution
Account;
(7) Any
event
that would result in the inability of the Master Servicer to make advances
regarding delinquent Mortgage Loans to the same extent the Servicers
are
required to make such advances as provided in Section 4.03;
and
(8) The
filing of any claim under any Servicer’s blanket bond and errors and omissions
insurance policy required by Section 3.14 or the cancellation or material
modification of coverage under any such instrument.
In
addition, the Trust Administrator shall promptly make available to
each Rating
Agency and the NIMS Insurer copies of each report to Certificateholders
described in Section 4.02 and the Master Servicer shall promptly make
available to each Rating Agency copies of the following:
(1) Each
annual statement as to compliance described in Section 3.20;
(2) Each
annual independent public accountants’ servicing report described in
Section 3.21;
(3) Any
notice delivered pursuant to Section 7.01
Any
such
notice pursuant to this Section 11.07 shall be in writing and shall
be deemed to
have been duly given if personally delivered at or mailed by first
class mail,
postage prepaid, or by express delivery service to ▇▇▇▇▇’▇ Investors Service
Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Standard & Poor’s
Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other addresses as the Rating
Agencies
may designate in writing to the parties hereto.
| SECTION 11.08. |
Article
and Section References.
|
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
| SECTION 11.09. |
Grant
of Security Interest.
|
It
is the
express intent of the parties hereto that the conveyance of the Mortgage
Loans
by the Depositor to the Trustee, be, and be construed as, a sale of
the Mortgage
Loans by the Depositor and not a pledge of the Mortgage Loans to secure
a debt
or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage
Loans are
held to be property of the Depositor, then, (a) it is the express intent
of the
parties that such conveyance be deemed a pledge of the Mortgage Loans
by the
Depositor to the Trustee to secure a debt or other obligation of the
Depositor
and (b)(1) this Agreement shall also be deemed to be a security agreement
within
the meaning of Articles 8 and 9 of the Uniform Commercial Code as in
effect from
time to time in the State of New York; (2) the conveyance provided
for in
Section 2.01 hereof shall be deemed to be a grant by the Depositor to the
Trustee of a security interest in all of the Depositor’s right, title and
interest in and to the Mortgage Loans and all amounts payable to the
holders of
the Mortgage Loans and the Swap Provider in accordance with the terms
thereof
and all proceeds of the conversion, voluntary or involuntary, of the
foregoing
into cash, instruments, securities or other property, including without
limitation all amounts, other than investment earnings, from time to
time held
or invested in the Collection Account and the Distribution Account,
whether in
the form of cash, instruments, securities or other property; (3) the
obligations
secured by such security agreement shall be deemed to be all of the
Depositor’s
obligations under this Agreement, including the obligation to provide
to the
Certificateholders and the Swap Provider the benefits of this Agreement
relating
to the Mortgage Loans and the Trust Fund; and (4) notifications to
persons
holding such property, and acknowledgments, receipts or confirmations
from
persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of
perfecting
such security interest under applicable law. Accordingly, the Depositor
hereby
grants to the Trustee a security interest in the Mortgage Loans and
all other
property described in clause (2) of the preceding sentence, for the
purpose of
securing to the Trustee the performance by the Depositor of the obligations
described in clause (3) of the preceding sentence. Notwithstanding
the
foregoing, the parties hereto intend the conveyance pursuant to
Section 2.01 to be a true, absolute and unconditional sale of the Mortgage
Loans and assets constituting the Trust Fund by the Depositor to the
Trustee.
| SECTION 11.10. |
Third
Party Rights.
|
Each
of
the NIMS Insurer and the Swap Provider shall be deemed a third-party
beneficiary
of this Agreement to the same extent as if it were a party hereto,
and shall
have the right to enforce the provisions of this Agreement.
| SECTION 11.11. |
Intention
of the Parties and Interpretation.
|
Each
of
the parties hereto acknowledges and agrees that the purpose of Sections
3.20,
3.21 and 4.06 of this Agreement is to facilitate compliance by the
Depositor
with the provisions of Regulation AB promulgated by the SEC under the
Exchange
Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from time to time
and subject to clarification and interpretive advice as may be issued
by the
staff of the Commission from time to time. Therefore, each of the parties
hereto
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as reasonably necessary
to be
consistent with any such amendments, interpretive advice or guidance,
convention
or consensus among active participants in the asset-backed securities
markets,
advice of counsel, or otherwise in respect of the requirements of Regulation
AB,
(c) the parties shall comply, to the extent practicable from a timing
and
information systems perspective and to the extent that the Depositor
will pay
any increased costs of the Trustee and Trust Administrator caused by
such
request, with requests made by the Depositor for delivery of additional
or
different information as the Depositor may determine in good faith
is necessary
to comply with the provisions of Regulation AB, and (d) no amendment
of this
Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations
of the
provisions of Regulation AB.
IN
WITNESS WHEREOF, the Depositor, the Servicers, the Master Servicer,
the Trust
Administrator, the Custodian and the Trustee have caused their names
to be
signed hereto by their respective officers thereunto duly authorized,
in each
case as of the day and year first above written.
|
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC., as Depositor
|
|
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇
|
|
Title:
|
Associate
Director
|
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇ ▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇▇▇ ▇▇▇
|
|
Title:
|
Associate
Director
|
|
▇▇▇▇▇
FARGO BANK, N.A., as Master Servicer, Trust Administrator
and
Custodian
|
|
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
|
Assistant
Vice President
|
|
BARCLAYS
CAPITAL REAL ESTATE INC. D/B/A HOMEQ SERVICING, as
Servicer
|
|
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇
|
|
Title:
|
President
|
|
▇▇▇▇▇
FARGO BANK, N.A., as Servicer
|
|
|
By:
|
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
For
purposes of Sections 6.08, 6.09 and 6.10:
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC.
|
|
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
Title:
|
President
and General Counsel
|
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
the
___ day of November 2006, before me, a notary public in and for said
State,
personally appeared ________________________ and ________________________,
known
to me to be a(n) ________________________ and ________________________,
respectively, of Mortgage Asset Securitization Transactions, Inc.,
one of the
corporations that executed the within instrument, and also known to
me to be the
person who executed it on behalf of said corporation, and acknowledged
to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ day of November 2006, before me, a notary public in and for said
State,
personally appeared ________________________ known to me to be a(n)
________________________ of ▇▇▇▇▇ Fargo Bank, N.A., one of the corporations
that
executed the within instrument, and also known to me to be the person
who
executed it on behalf of said corporation, and acknowledged to me that
such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF MARYLAND
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF ▇▇▇▇▇▇
|
)
|
On
the
____ day of November 2006, before me, a notary public in and for said
State,
personally appeared ________________________ known to me to be a(n)
________________________ of Barclays Capital Real Estate Inc. d/b/a
HomEq
Servicing, one of the corporations that executed the within instrument,
and also
known to me to be the person who executed it on behalf of said corporation,
and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
)
|
||
|
)
|
ss.:
|
|
|
COUNTY
OF ▇▇▇▇▇▇
|
)
|
On
the
____ day of November 2006, before me, a notary public in and for said
State,
personally appeared ________________________, known to me to be a(n)
________________________ of U.S. Bank National Association, one of
the
corporations that executed the within instrument, and also known to
me to be the
person who executed it on behalf of said corporation, and acknowledged
to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
EXHIBIT
A-1
FORM
OF
CLASS A-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, THE HOLDER OF
THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION
5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-1 Certificates
as of the
Issue Date: $ 247,700,000.00
Denomination:
$247,700,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AA 0
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE
MASTER SERVICER, THE
TRUST
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class A-1 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
A-1 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
A-1
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class A-1 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
A-1 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, the holder of
this
Certificate shall be deemed to have made the representation Set forth
is Section
5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
and the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF
CLASS A-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, THE HOLDER OF
THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION
5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-2 Certificates
as of the
Issue Date: $64,000,000.00
Denomination:
$64,000,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AB 8
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class A-2 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
A-2 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
A-2
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class A-2 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
A-2 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, the holder of
this
Certificate shall be deemed to have made the representation Set forth
is Section
5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF
CLASS A-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, THE HOLDER OF
THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION
5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-3 Certificates
as of the
Issue Date: $115,500,000.00
Denomination:
$115,500,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AC 6
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class A-3 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
A-3 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
A-3
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class A-3 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
A-3 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, the holder of
this
Certificate shall be deemed to have made the representation Set forth
is Section
5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF
CLASS A-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, THE HOLDER OF
THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET FORTH
IN SECTION
5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-4 Certificates
as of the
Issue Date: $48,807,000.00
Denomination:
$48,807,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AD 4
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class A-4 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
A-4 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
A-4
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class A-4 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
A-4 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the
Custodian, the NIMS Insurer, if any, and the rights of the Certificateholders
under the Agreement at any time by the Depositor, the Master Servicer,
the
Servicer, the Trust Administrator, the Trustee and the NIMS Insurer,
if any,
without the consent on the Certificateholders or with the consent
of the Holders
of Certificates entitled to at least 66% of the Voting Rights as
further set
forth in the Agreement. Any such consent by the Holder of this Certificate
shall
be conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, the holder of
this
Certificate shall be deemed to have made the representation Set forth
is Section
5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
, or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF
CLASS M-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT
DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-1 Certificates
as of the
Issue Date: $21,923,000.00
Denomination:
$21,923,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AE 2
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-1 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-1 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-1
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-1 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-1 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
FORM
OF
CLASS M-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND THE CLASS
M-1
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT
REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-2 Certificates
as of the
Issue Date: $20,722,000.00
Denomination:
$20,722,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AF 9
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-2 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-2 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-2
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-2 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-2 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-7
FORM
OF
CLASS M-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED
IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-3 Certificates
as of the
Issue Date: $11,712,000.00
Denomination:
$11,712,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AG 7
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-3 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-3 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-3
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-3 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-3 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-8
FORM
OF
CLASS M-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES
TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO
HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-4 Certificates
as of the
Issue Date: $10,811,000.00
Denomination:
$10,811,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AH 5
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-4 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-4 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-4
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-4 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-4 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Custodian, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate
is registered as the owner hereof for all purposes, and none of the
Depositor,
the Master Servicer, the Trust Administrator, the Trustee nor any
such agent
shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-9
FORM
OF
CLASS M-5 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES
AND THE
CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING
AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-5 Certificates
as of the
Issue Date: $9,910,000.00
Denomination:
$9,910,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AJ 1
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-5 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-5 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-5
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-5 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-5 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-10
FORM
OF
CLASS M-6 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS
M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED
IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-6 Certificates
as of the
Issue Date: $9,309,000.00
Denomination:
$9,309,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AK 8
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-6 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-6 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-6
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-6 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-6 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-11
FORM
OF
CLASS M-7 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6 CERTIFICATES
TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO
HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-7 Certificates
as of the
Issue Date: $8,709,000.00
Denomination:
$8,709,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AL 6
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-7 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-7 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-7
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-7 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-7 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-12
FORM
OF
CLASS M-8 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES
AND THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING
AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-8 Certificates
as of the
Issue Date: $7,808,000.00
Denomination:
$7,808,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AM 4
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE
MASTER SERVICER, THE
TRUST
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-8 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-8 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-8
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-8 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-8 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-13
FORM
OF
CLASS M-9 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES AND THE CLASS M-8 CERTIFICATES TO THE EXTENT
DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-9 Certificates
as of the
Issue Date: $4,504,000.00
Denomination:
$4,504,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AN 2
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-9 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-9 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-9
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-9 Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
M-9 Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Custodian, the Trust
Administrator or the Trustee may treat the Person in whose name this
Certificate
is registered as the owner hereof for all purposes, and none of the
Depositor,
the Master Servicer, the Custodian, the Trust Administrator, the
Trustee nor any
such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-14
FORM
OF
CLASS M-10 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES AND THE CLASS
M-9
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT
REFERRED TO HEREIN.
THE
HOLDER OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
SET
FORTH IN SECTION 5.02 (c) OF THE AGREEMENT.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-10 Certificates
as of the
Issue Date: $4,504,000.00
Denomination:
$4,504,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AP 7
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-10 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-10 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-10
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-10 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser
of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal
Balance of the Class M-10 Certificates, or otherwise by check mailed
by first
class mail to the address of the Person entitled thereto, as such
name and
address shall appear on the Certificate Register. Notwithstanding
the above, the
final distribution on this Certificate will be made after due notice
by the
Trust Administrator of the pendency of such distribution and only
upon
presentation and surrender of this Certificate at the office or agency
appointed
by the Trust Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
The
holder of this Certificate shall be deemed to have made the representation
Set
forth is Section 5.02 (c) of the Pooling & Servicing Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-15
FORM
OF
CLASS M-11 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUST ADMINISTRATOR OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS
M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES,
THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES, THE CLASS M-9
CERTIFICATES
AND THE CLASS M-10 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING
AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
|
Series:
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-11 Certificates
as of the
Issue Date: $ 6,006,000.00
Denomination:
$6,006,000.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
CUSIP:
576449 AQ 5
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the
aggregate
Certificate Principal Balance of the Class M-11 Certificates as of
the Issue
Date) in that certain beneficial ownership interest evidenced by
all the Class
M-11 Certificates in a REMIC created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such
transfer is
made pursuant to an effective registration statement under the Act
and any
applicable sate securities laws or is exempt from the registration
requirements
under said Act and such laws. In the event that a transfer is to
be made in
reliance upon an exemption from the Act and such laws, in order to
assure
compliance with the Act, and such laws, the Holder of this Certificate
desiring
to effect such transfer and such Holder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding
the
transfer. The Holder hereof desiring to effect such transfer shall,
and does
hereby agree to indemnify the Trustee and the Depositor against any
liability
that may result if the transfer is not so exempt or is not made in
accordance
with such federal and state laws.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
M-11
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class M-11 Certificates the aggregate initial
Certificate Principal Balance of which is in excess of the lesser
of (i)
$5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal
Balance of the Class M-11 Certificates, or otherwise by check mailed
by first
class mail to the address of the Person entitled thereto, as such
name and
address shall appear on the Certificate Register. Notwithstanding
the above, the
final distribution on this Certificate will be made after due notice
by the
Trust Administrator of the pendency of such distribution and only
upon
presentation and surrender of this Certificate at the office or agency
appointed
by the Trust Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable
with respect
to this Certificate on any Distribution Date shall equal a rate per
annum equal
to the lesser of (i) the related Formula Rate for such Distribution
Date and
(ii) the related Net WAC Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
No
transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the
Code, any Person acting, directly or indirectly, on behalf of any
such Plan or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-16
FORM
OF
CLASS CE CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE RESOLD OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS
OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH
THE PROCEDURES
DESCRIBED HEREIN.
|
Series
2006-HE4
Pass-Through
Rate: Variable
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class CE Certificates
as of the Issue
Date: $8,714,692.36
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate
by the
aggregate Certificate Principal Balance of the Class CE Certificates
as of the
Issue Date) in that certain beneficial ownership interest evidenced
by all the
Class CE Certificates in a REMIC created pursuant to a Pooling and
Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
CE
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class CE Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
CE Certificates, or otherwise by check mailed by first class mail
to the address
of the Person entitled thereto, as such name and address shall appear
on the
Certificate Register. Notwithstanding the above, the final distribution
on this
Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is
made pursuant
to an effective registration statement under the Securities Act of
1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that
does not
require such registration or qualification. In the event that such
a transfer of
this Certificate is to be made without registration or qualification,
the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and
from such
Holder's prospective transferee, substantially in the forms attached
to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion
of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of
the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the
Trust
Administrator, the Custodian in their respective capacities as such),
together
with copies of the written certification(s) of the Holder of the
Certificate
desiring to effect the transfer and/or such Holder's prospective
transferee upon
which such Opinion of Counsel is based. None of the Depositor or
the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities
law or
to take any action not otherwise required under the Agreement to
permit the
transfer of such Certificates without registration or qualification.
Any Holder
desiring to effect a transfer of this Certificate shall be required
to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor,
the Servicer
and the Master Servicer against any liability that may result if
the transfer is
not so exempt or is not made in accordance with such federal and
state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the
Code, any Person acting, directly or indirectly, on behalf of any
such Plan or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-17
FORM
OF
CLASS P CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986 AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE RESOLD OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS
OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH
THE PROCEDURES
DESCRIBED HEREIN.
|
Series:
2006-HE4
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class P Certificates
as of the Issue
Date: $100.00
Denomination:
$100.00
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate
by the
aggregate Certificate Principal Balance of the Class P Certificates
as of the
Issue Date) in that certain beneficial ownership interest evidenced
by all the
Class P Certificates in REMIC V created pursuant to a Pooling and
Servicing
Agreement, dated as specified above (the “Agreement”), among Mortgage Asset
Securitization Transactions, Inc. (hereinafter called the “Depositor,” which
term includes any successor entity under the Agreement), the Master
Servicer,
the Trust Administrator, the Custodian and the Trustee, a summary
of certain of
the pertinent provisions of which is set forth hereafter. To the
extent not
defined herein, the capitalized terms used herein have the meanings
assigned in
the Agreement. This Certificate is issued under and is subject to
the terms,
provisions and conditions of the Agreement, to which Agreement the
Holder of
this Certificate by virtue of the acceptance hereof assents and by
which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
P Certificates
on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class P Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class P
Certificates, or otherwise by check mailed by first class mail to
the address of
the Person entitled thereto, as such name and address shall appear
on the
Certificate Register. Notwithstanding the above, the final distribution
on this
Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate
Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is
made pursuant
to an effective registration statement under the Securities Act of
1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that
does not
require such registration or qualification. In the event that such
a transfer of
this Certificate is to be made without registration or qualification,
the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and
from such
Holder's prospective transferee, substantially in the forms attached
to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion
of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of
the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the
Trust
Administrator, the Custodian in their respective capacities as such),
together
with copies of the written certification(s) of the Holder of the
Certificate
desiring to effect the transfer and/or such Holder's prospective
transferee upon
which such Opinion of Counsel is based. None of the Depositor or
the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities
law or
to take any action not otherwise required under the Agreement to
permit the
transfer of such Certificates without registration or qualification.
Any Holder
desiring to effect a transfer of this Certificate shall be required
to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor,
the Servicer
and the Master Servicer against any liability that may result if
the transfer is
not so exempt or is not made in accordance with such federal and
state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the
Code, any Person acting, directly or indirectly, on behalf of any
such Plan or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-18
FORM
OF
CLASS R CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF
1986 AS AMENDED (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE RESOLD OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS
OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH
THE PROCEDURES
DESCRIBED HEREIN.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUST ADMINISTRATOR
THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION
THEREOF,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT,
ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY
OF THE
FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED
IN SECTION
521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1
OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION
511 OF THE
CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF
THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL
HEREINAFTER
BE REFERRED TO AS A “DISQUALIFIED ORGANIZATION”) OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES
CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING,
BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED
TO THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02 (C)
OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT
IS A
DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL
OWNERSHIP OF
THIS CERTIFICATE.
|
Series:
2006-HE4
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Percentage Interest of the Class R Certificates as of the
Issue Date:
100.00%
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
|
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (as specified above) in that certain beneficial ownership
interest
evidenced by all the Certificates of the Class to which this Certificate
belongs
created pursuant to a Pooling and Servicing Agreement, dated as specified
above
(the “Agreement”), among Mortgage Asset Securitization Transactions, Inc.
(hereinafter called the “Depositor,” which term includes any successor entity
under the Agreement), the Master Servicer, the Trust Administrator,
the
Custodian and the Trustee, a summary of certain of the pertinent
provisions of
which is set forth hereafter. To the extent not defined herein, the
capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate
is issued under and is subject to the terms, provisions and conditions
of the
Agreement, to which Agreement the Holder of this Certificate by virtue
of the
acceptance hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
R Certificates
on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class R Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class R
Certificates, or otherwise by check mailed by first class mail to
the address of
the Person entitled thereto, as such name and address shall appear
on the
Certificate Register. Notwithstanding the above, the final distribution
on this
Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is
made pursuant
to an effective registration statement under the Securities Act of
1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that
does not
require such registration or qualification. In the event that such
a transfer of
this Certificate is to be made without registration or qualification,
the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and
from such
Holder's prospective transferee, substantially in the forms attached
to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion
of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of
the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the
Trust
Administrator, the Custodian in their respective capacities as such),
together
with copies of the written certification(s) of the Holder of the
Certificate
desiring to effect the transfer and/or such Holder's prospective
transferee upon
which such Opinion of Counsel is based. Neither the Depositor nor
the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities
law or
to take any action not otherwise required under the Agreement to
permit the
transfer of such Certificates without registration or qualification.
Any Holder
desiring to effect a transfer of this Certificate shall be required
to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor,
the Servicer
and the Master Servicer against any liability that may result if
the transfer is
not so exempt or is not made in accordance with such federal and
state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the
Code, any Person acting, directly or indirectly, on behalf of any
such Plan or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trust Administrator (i)
an affidavit to
the effect that such transferee is any Person other than a Disqualified
Organization or the agent (including a broker, nominee or middleman)
of a
Disqualified Organization, and (ii) a certificate that acknowledges
that (A) the
Class R Certificates have been designated as a residual interest
in a REMIC, (B)
it will include in its income a pro
rata share
of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C)
it expects to
have the financial means to satisfy all of its tax obligations including
those
relating to holding the Class R Certificates. Notwithstanding the
registration
in the Certificate Register of any transfer, sale or other disposition
of this
Certificate to a Disqualified Organization or an agent (including
a broker,
nominee or middleman) of a Disqualified Organization, such registration
shall be
deemed to be of no legal force or effect whatsoever and such Person
shall not be
deemed to be a Certificateholder for any purpose, including, but
not limited to,
the receipt of distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed
to have
consented to the provisions of Section 5.02 of the Agreement and
to any
amendment of the Agreement deemed necessary by counsel of the Depositor
to
ensure that the transfer of this Certificate to any Person other
than a
Permitted Transferee or any other Person will not cause the Trust
Fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November ___, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-19
FORM
OF
CLASS R-X CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF
1986 AS AMENDED (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE RESOLD OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS
OR IS SOLD OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH
THE PROCEDURES
DESCRIBED HEREIN.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUST ADMINISTRATOR
THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION
THEREOF,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT,
ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY
OF THE
FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED
IN SECTION
521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1
OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION
511 OF THE
CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF
THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL
HEREINAFTER
BE REFERRED TO AS A “DISQUALIFIED ORGANIZATION”) OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS
TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES
CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING,
BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED
TO THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02 (C)
OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT
IS A
DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL
OWNERSHIP OF
THIS CERTIFICATE.
|
Series:
2006-HE4
Cut-off
Date and date of Pooling and Servicing Agreement: November
1,
2006
First
Distribution Date: December 26, 2006
No.
1
|
Aggregate
Percentage Interest of the Class R-X Certificates as of
the Issue Date:
100.00%
Master
Servicer, Trust Administrator and Custodian: ▇▇▇▇▇ Fargo
Bank,
N.A.
Trustee:
U.S. Bank National Association
Issue
Date: November 30, 2006
|
MORTGAGE
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the
“Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
fixed-rate
and adjustable-rate, first and second lien mortgage loans (the “Mortgage Loans”)
formed and sold by
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN MORTGAGE
ASSET
SECURITIZATION TRANSACTIONS, INC., THE MASTER SERVICER, THE TRUST
ADMINISTRATOR,
THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF
THE UNITED STATES.
This
certifies that UBS Securities LLC is the registered owner of a Percentage
Interest (as specified above) in that certain beneficial ownership
interest
evidenced by all the Certificates of the Class to which this Certificate
belongs
created pursuant to a Pooling and Servicing Agreement, dated as specified
above
(the “Agreement”), among Mortgage Asset Securitization Transactions, Inc.
(hereinafter called the “Depositor,” which term includes any successor entity
under the Agreement), the Master Servicer, the Trust Administrator,
the
Custodian and the Trustee, a summary of certain of the pertinent
provisions of
which is set forth hereafter. To the extent not defined herein, the
capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate
is issued under and is subject to the terms, provisions and conditions
of the
Agreement, to which Agreement the Holder of this Certificate by virtue
of the
acceptance hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the
25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to
the Person
in whose name this Certificate is registered on the Record Date,
in an amount
equal to the product of the Percentage Interest evidenced by this
Certificate
and the amount required to be distributed to the Holders of Class
R-X
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement
will be made
or caused to be made by the Trust Administrator by wire transfer
in immediately
available funds to the account of the Person entitled thereto if
such Person
shall have so notified the Trust Administrator in writing at least
five Business
Days prior to the Record Date immediately prior to such Distribution
Date and is
the registered owner of Class R-X Certificates the aggregate initial
Certificate
Principal Balance of which is in excess of the lesser of (i) $5,000,000
or (ii)
two-thirds of the aggregate initial Certificate Principal Balance
of the Class
R-X Certificates, or otherwise by check mailed by first class mail
to the
address of the Person entitled thereto, as such name and address
shall appear on
the Certificate Register. Notwithstanding the above, the final distribution
on
this Certificate will be made after due notice by the Trust Administrator
of the
pendency of such distribution and only upon presentation and surrender
of this
Certificate at the office or agency appointed by the Trust Administrator
for
that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Mortgage Pass-Through Certificates of the Series specified on the
face hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections
and
recoveries respecting the Mortgage Loans, all as more specifically
set forth
herein and in the Agreement. As provided in the Agreement, withdrawals
from the
Distribution Account may be made from time to time for purposes other
than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the
Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the
amendment
thereof and the modification of the rights and obligations of the
Depositor, the
Master Servicer, the Servicer, the Trust Administrator, the Trustee,
the NIMS
Insurer, if any, and the rights of the Certificateholders under the
Agreement at
any time by the Depositor, the Master Servicer, the Servicer, the
Trust
Administrator, the Trustee and the NIMS Insurer, if any, without
the consent on
the Certificateholders or with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights as further set forth
in the
Agreement. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders
of this
Certificate and of any Certificate issued upon the transfer hereof
or in
exchange herefor or in lieu hereof whether or not notation of such
consent is
made upon this Certificate. The Agreement also permits the amendment
thereof, in
certain limited circumstances, without the consent of the Holders
of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein
set forth,
the transfer of this Certificate is registrable in the Certificate
Register upon
surrender of this Certificate for registration of transfer at the
offices or
agencies appointed by the Trust Administrator as provided in the
Agreement, duly
endorsed by, or accompanied by an assignment in the form below or
other written
instrument of transfer in form satisfactory to the Trust Administrator
duly
executed by, the Holder hereof or such Holder's attorney duly authorized
in
writing, and thereupon one or more new Certificates of the same Class
in
authorized denominations evidencing the same aggregate Percentage
Interest will
be issued to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is
made pursuant
to an effective registration statement under the Securities Act of
1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that
does not
require such registration or qualification. In the event that such
a transfer of
this Certificate is to be made without registration or qualification,
the Trust
Administrator shall require receipt of (i) if such transfer is purportedly
being
made in reliance upon Rule 144A under the 1933 Act, written certifications
from
the Holder of the Certificate desiring to effect the transfer, and
from such
Holder's prospective transferee, substantially in the forms attached
to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion
of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of
the Trust
Fund or of the Depositor, the Trustee or the Master Servicer, the
Trust
Administrator, the Custodian in their respective capacities as such),
together
with copies of the written certification(s) of the Holder of the
Certificate
desiring to effect the transfer and/or such Holder's prospective
transferee upon
which such Opinion of Counsel is based. Neither the Depositor nor
the Trust
Administrator is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities
law or
to take any action not otherwise required under the Agreement to
permit the
transfer of such Certificates without registration or qualification.
Any Holder
desiring to effect a transfer of this Certificate shall be required
to indemnify
the Trustee, the Trust Administrator, the Custodian, the Depositor,
the Servicer
and the Master Servicer against any liability that may result if
the transfer is
not so exempt or is not made in accordance with such federal and
state
laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the
Code, any Person acting, directly or indirectly, on behalf of any
such Plan or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 5.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons
in
Classes and denominations representing Percentage Interests specified
in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate
Percentage
Interest, as requested by the Holder surrendering the same. No service
charge
will be made for any such registration of transfer or exchange of
Certificates,
but the Trust Administrator may require payment of a sum sufficient
to cover any
tax or other governmental charge that may be imposed in connection
with any
transfer or exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trust Administrator (i)
an affidavit to
the effect that such transferee is any Person other than a Disqualified
Organization or the agent (including a broker, nominee or middleman)
of a
Disqualified Organization, and (ii) a certificate that acknowledges
that (A) the
Class R-X Certificates have been designated as a residual interest
in a REMIC,
(B) it will include in its income a pro
rata share
of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C)
it expects to
have the financial means to satisfy all of its tax obligations including
those
relating to holding the Class R-X Certificates. Notwithstanding the
registration
in the Certificate Register of any transfer, sale or other disposition
of this
Certificate to a Disqualified Organization or an agent (including
a broker,
nominee or middleman) of a Disqualified Organization, such registration
shall be
deemed to be of no legal force or effect whatsoever and such Person
shall not be
deemed to be a Certificateholder for any purpose, including, but
not limited to,
the receipt of distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed
to have
consented to the provisions of Section 5.02 of the Agreement and
to any
amendment of the Agreement deemed necessary by counsel of the Depositor
to
ensure that the transfer of this Certificate to any Person other
than a
Permitted Transferee or any other Person will not cause the Trust
Fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Master Servicer, the Trust Administrator, the Trustee
and any
agent of the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee may treat the Person in whose name this Certificate is registered
as the
owner hereof for all purposes, and none of the Depositor, the Master
Servicer,
the Trust Administrator, the Trustee nor any such agent shall be
affected by
notice to the contrary.
The
obligations created by the Agreement and the Trust Fund created thereby
shall
terminate upon payment to the Certificateholders of all amounts held
by the
Trust Administrator and required to be paid to them pursuant to the
Agreement
following the earlier of (i) the final payment or other liquidation
(or any
advance with respect thereto) of the last Mortgage Loan and REO Property
remaining in REMIC I and (ii) the purchase by the party designated
in the
Agreement at a price determined as provided in the Agreement from
REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage
Loans.
The Agreement permits, but does not require, the party designated
in the
Agreement to purchase from REMIC I all of the Mortgage Loans and
all property
acquired in respect of any Mortgage Loan at a price determined as
provided in
the Agreement. The exercise of such right will effect early retirement
of the
Certificates; however, such right to purchase is subject to the aggregate
Stated
Principal Balance of the Mortgage Loans and REO Properties remaining
in the
Trust Fund at the time of purchase being less than or equal to 10%
of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor
and the
Trust Administrator assumes no responsibility for their
correctness.
Unless
the certificate of authentication hereon has been executed by the
Trust
Administrator, by manual signature, this Certificate shall not be
entitled to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trust Administrator has caused this Certificate
to be duly
executed.
Dated:
November __, 2006
|
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely
as Trust
Administrator for the MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trust Administrator
|
||
|
By:
|
||
|
Authorized
Signatory
|
||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face
of this
instrument, shall be construed as though they were written out in
full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
__________________
(State)
|
|
TEN
ENT -
|
as
tenants by the entireties
|
||
|
JT
TEN -
|
as
joint tenants with right
of
survivorship and not as
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________
|
.
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to
____%
evidenced by the within Mortgage Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee
on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trust Administrator to issue a new Certificate
of a like
Percentage Interest and Class to the above named assignee and deliver
such
Certificate to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately
available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
B
[RESERVED]
EXHIBIT
C-1
FORM
OF
INITIAL CERTIFICATION
[Date]
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Structured Finance/MASTR 2006-HE4
|
|
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Client Manager: MABS 2006-HE4
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of November 1,
2006,
among Mortgage Asset Securitization Transactions,
Inc.,
▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer, Custodian
and
Trust Administrator, ▇▇▇▇▇ Fargo Bank, N.A. as
Servicer,
Barclays
Capital Real Estate Inc. d/b/a HomEq
Servicing and
U.S. Bank National Association,
Mortgage
Pass-Through Certificates, Series
2006-HE4
|
Ladies
and Gentlemen:
Attached
is the [Custodian’s] [Trustee’s] preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing
Agreement
(the “Pooling and Servicing Agreement”). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the
Pooling and
Servicing Agreement.
The
[Custodian] [Trustee] has made no independent examination of any
documents
contained in each Mortgage File beyond the review specifically required
in the
Pooling and Servicing Agreement. The [Custodian] [Trustee] makes
no
representations as to (i) the validity, legality, sufficiency, enforceability
or
genuineness of any of the documents contained in the Mortgage File
pertaining to
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the
collectability, insurability, effectiveness or suitability of any
such Mortgage
Loan or (iii) whether any Mortgage File included any of the documents
specified
in clause (vi) of Section 2.01 of the Pooling and Servicing
Agreement.
Capitalized
words and phrases used herein shall have the respective meanings
assigned to
them in the Pooling and Servicing Agreement. This Certificate is
qualified in
all respects by the terms of said Pooling and Servicing Agreement.
|
[Custodian/
Trustee]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
C-2
FORM
OF
FINAL CERTIFICATION
[Date]
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Structured Finance/MASTR 2006-HE4
|
|
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Client Manager: MABS 2006-HE4
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of November 1,
2006,
among Mortgage Asset Securitization Transactions, Inc.,
▇▇▇▇▇
Fargo Bank, N.A. as Master Servicer, Custodian
and
Trust Administrator, ▇▇▇▇▇ Fargo Bank, N.A. as
Servicer,
Barclays
Capital Real Estate Inc. d/b/a HomEq
Servicing and
U.S. Bank National Association, Mortgage
Pass-Through
Certificates,
Series 2006-HE4
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement,
the
undersigned, as [Custodian’s] [Trustee’s], hereby certifies that as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage loan
paid in full or listed on Schedule I hereto) it (or its custodian)
has received
the applicable documents listed in Section 2.01 of the Pooling and
Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified
on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule
I
hereto, it has reviewed the documents listed above and has determined
that each
such document appears to be complete and, based on an examination
of such
documents, the information set forth in the Mortgage Loan Schedule
is
correct.
The
[Custodian’s] [Trustee’s] has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required
in the
Pooling and Servicing Agreement. The [Custodian’s] [Trustee’s] makes no
representations as to (i) the validity, legality, sufficiency, enforceability
or
genuineness of any of the documents contained in the Mortgage File
pertaining to
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the
collectability, insurability, effectiveness or suitability of any
such Mortgage
Loan or (iii) whether any Mortgage File included any of the documents
specified
in clause (vi) of Section 2.01 of the Pooling and Servicing
Agreement.
Capitalized
words and phrases used herein shall have the respective meanings
assigned to
them in the Pooling and Servicing Agreement. This Certificate is
qualified in
all respects by the terms of said Pooling and Servicing Agreement.
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[CUSTODIAN/
TRUSTEE]
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By:
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Name:
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Title:
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EXHIBIT
C-3
FORM
OF
RECEIPT OF MORTGAGE NOTES
|
Mortgage
Asset Securitization Transactions, Inc.
1285
Avenue of the Americas
New
York, New York 10019
|
U.S.
Bank National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Structured Finance/ MASTR 2006-HE4
|
|
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Client Manager: MABS 2006-HE4
|
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of November 1,
2006,
among Mortgage Asset Securitization Transactions,
Inc.,
▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer, Custodian
and
Trust Administrator, ▇▇▇▇▇ Fargo Bank, N.A. as
Servicer,
Barclays
Capital Real Estate Inc. d/b/a HomEq
Servicing and
U.S. Bank National Association, Mortgage
Pass-Through
Certificates, Series
2006-HE4
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement, dated as
of November 1,
2006, among Mortgage Asset Securitization Transactions, Inc. as Depositor,
▇▇▇▇▇
Fargo Bank, N.A. as Master Servicer, Trust Administrator and Custodian
(the
“Master Servicer”, the “Trust Administrator” and the “Custodian”), ▇▇▇▇▇ Fargo
Bank, N.A. as Servicer, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing
as
Servicer (together with ▇▇▇▇▇ Fargo, N.A., the “Servicers”) and U.S. Bank
National Association as Trustee, we hereby acknowledge the receipt
of the
original Mortgage Notes (a copy of which is attached hereto as Exhibit
1) with
any exceptions thereto listed on Exhibit 2.
|
[TRUSTEE/
CUSTODIAN]
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By:
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Name:
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Title:
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EXHIBIT
D
FORMS
OF
ASSIGNMENT AGREEMENTS
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006,
(“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
EquiFirst Corporation (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby
agree as
follows:
Assignment
and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns to
the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser,
in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated as
of May 1,
2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as initial purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement
relates to the
Mortgage Loans and (y) other than as provided below with respect
to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee
hereunder any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase
Agreement
which are not the mortgage loans set forth on the Mortgage Loan
Schedule and are
not the subject of this Agreement.
Recognition
of the Company
From
and
after the date hereof, the Company shall and does hereby recognize
that the
Assignee will transfer the Mortgage Loans and assign its rights
under the
Purchase Agreement (solely to the extent set forth herein) and
this Agreement to
MASTR Asset-Backed Securities Trust 2006-HE4 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 2006 (the
“Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust administrator
(including its successors in interest and any successor servicers
under the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), ▇▇▇▇▇ Fargo
Bank, N.A. and Barclays Capital Real Estate Inc. d/b/a HomEq Servicing
as
servicers and U.S. Bank National Association, as trustee (including
its successors in interest and any successor trustees under the
Pooling
Agreement,
the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the
date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trustee and the Servicer acting on the Trust’s behalf)
shall have all the rights and remedies available to the Assignor,
insofar as
they relate to the Mortgage Loans, under the Purchase Agreement,
including,
without limitation, the enforcement of the document delivery requirements
and
remedies with respect to breaches of representations and warranties
set forth in
the Purchase Agreement, and shall be entitled to enforce all of
the obligations
of the Company thereunder insofar as they relate to the Mortgage
Loans, and
(iv) all references to the Purchaser (insofar as they relate to the
rights,
title and interest and, with respect to obligations of the Purchaser,
only
insofar as they relate to the enforcement of the representations,
warranties and
covenants of the Company) or the Custodian under the Purchase Agreement
insofar
as they relate to the Mortgage Loans, shall be deemed to refer
to the Trust
(including the Trustee and the Servicer acting on the Trust’s behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify,
waiver, or
otherwise alter any of the terms or provisions of the Purchase
Agreement which
amendment, modification, waiver or other alteration would in any
way affect the
Mortgage Loans or the Company’s performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent
of the
Trustee.
Representations
and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee and
the Trust as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing
under the laws
of the jurisdiction of its incorporation;
(b) The
Company has full corporate power and authority to execute, deliver
and perform
its obligations under this Agreement and has full corporate power
and authority
to perform its obligations under the Purchase Agreement. The execution
by the
Company of this Agreement is in the ordinary course of the Company’s business
and will not conflict with, or result in a breach of, any of the
terms,
conditions or provisions of the Company’s charter or bylaws or any legal
restriction, or any material agreement or instrument to which the
Company is now
a party or by which it is bound, or result in the violation of
any law, rule,
regulation, order, judgment or decree to which the Company or its
property is
subject. The execution, delivery and performance by the Company
of this
Agreement have been duly authorized by all necessary corporate
action on part of
the Company. This Agreement has been duly executed and delivered
by the Company,
and, upon the due authorization, execution and delivery by the
Assignor and the
Assignee, will constitute the valid and legally binding obligation
of the
Company, enforceable against the Company in accordance with its
terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating
to
creditors’ rights generally, and by general principles of equity regardless
of
whether enforceability is considered in a proceeding in equity
or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or, to the
best of the
Company’s knowledge, threatened against the Company, before any court,
administrative agency or other tribunal, which would draw into
question the
validity of this Agreement or the Purchase Agreement, or which,
either in any
one instance or in the aggregate, would result in any material
adverse change in
the ability of the Company to perform its obligations under this
Agreement or
the Purchase Agreement, and the Company is solvent.
2. Pursuant
to Section 8 of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee and the
Trust, that the
representations and warranties set forth in Section 3.01 of the
Purchase
Agreement (set forth on Schedule 1 hereto) are true and correct
as of the date
of this Agreement (the “Closing Date”) as if such representations and warranties
were made on such Closing Date, and that the representations and
warranties set
forth in Section 3.02 of the Purchase Agreement (set forth on Sechedule
1
hereto) are true and correct as of the related Servicing Transfer
Date (as
defined in the Purchase Agreement).
3. The
Assignor hereby makes the following representations and warranties
as of the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material
respects with
applicable local, state, and federal laws, including, but not limited
to, all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable predatory
and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E);
(d) No
Mortgage Loan originated on or after October 1, 2002 through March
6, 2003 is
governed by the Georgia Fair Lending Act; and
(e) To
the
best of the Assignor’s knowledge, with respect to the
representations and warranties set forth in Section
3.02, nothing has occurred in the period of time from the Servicing
Transfer
Date (as defined in the Purchase Agreement) to the date hereof
which would cause
such representation and warranties to be untrue in any material
respect as of
the date hereof.
In
addition to the foregoing, within 60 days
of
the earlier of discovery by the Assignor or receipt of notice by
the Assignor of
(i) the breach of any representation or warranty of the
Company
set forth in Section 3.02
of
the Purchase Agreement which materially and adversely affects the
interests of
the Certificateholders in any of the Mortgage Loan and for which
the Company has
failed to cure such breach in accordance with the terms of the
Purchase
Agreement and (ii)(a) the fact that the Company is no longer an
operating
company or (b) an Officers’ Certificate certifying to the fact that the Company
is financially unable to cure such breach pursuant to the terms
of the Purchase
Agreement, the Assignor shall take such action described in Section
2.03 of the
Pooling Agreement in respect of such Mortgage Loan. Such obligation
of the
Assignor shall continue until such time that the Rating Agencies
inform the
Assignee and the Assignor in writing that such obligation is no
longer required
in order for the Rating Agencies to maintain their then-current
ratings on the
Certificates.
Remedies
for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available
to the
Assignor, the Assignee and the Trust (including the Trustee and
the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in
Section 2 hereof
shall be as set forth in Subsection 3.01 of the Purchase Agreement
as if they
were set forth herein (including without limitation the repurchase
and indemnity
obligations set forth therein). In addition, the Company hereby
acknowledges and
agrees that any breach of the representations set forth in ▇▇▇▇▇▇▇
▇.▇▇ (▇),
(▇), (▇▇), (▇▇), (▇▇), (▇▇), (▇▇▇), (▇▇▇), (▇▇▇), (▇▇▇) or (ooo)
of the Purchase
Agreement shall be deemed to materially and adversely affect the
value of the
related mortgage loans or the interests of the Trust in the related
mortgage
loans.
The
Assignor hereby acknowledges and agrees that the remedies available
to the
Assignee and the Trust (including the Trustee and the Master Servicer
acting on
the Trust’s behalf) in connection with any breach of the representations
and
warranties made by the Assignor set forth in Section 3 hereof shall
be as set
forth in Section 2.03 of the Pooling Agreement as if they were
set forth herein.
The
Assignor hereby acknowledges and agrees that a breach of any one
of the
representations set forth in Section 3 above will be deemed to
materially
adversely affect the interests of the certificateholders and shall
require a
repurchase of the affected Mortgage Loan(s).
Miscellaneous
4. This
Agreement shall be construed in accordance with the laws of the
State of New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
5. No
term
or provision of this Agreement may be waived or modified unless
such waiver or
modification is in writing and signed by the party against whom
such waiver or
modification is sought to be enforced, with the prior written consent
of the
Trustee.
6. This
Agreement shall inure to the benefit of (i) the successors and
assigns of the
parties hereto and (ii) the Trust (including the Trustee and the
Servicer acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company
may
be merged or consolidated shall, without the requirement for any
further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to
the extent
assigned hereunder) by Assignor to Assignee and by Assignee to
the Trust and
nothing contained herein shall supersede or amend the terms of
the Purchase
Agreement.
8. This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
9. In
the
event that any provision of this Agreement conflicts with any provision
of the
Purchase Agreement with respect to the Mortgage Loans, the terms
of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto) but
not defined in
this Agreement shall have the meanings given to such terms in the
Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
duly authorized officers as of the date first above written.
|
UBS
REAL ESTATE SECURITIES INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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EQUIFIRST
CORPORATION
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By:
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Name:
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Title:
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EXHIBIT
A
Mortgage
Loan Schedule
AVAILABLE
UPON REQUEST
SCHEDULE
1
Limitations
on Representations and Warranties
Capitalized
terms used herein but not defined in this Schedule 1 shall have
the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that
as of each
Closing Date and as of each Servicing Transfer Date or as of such
date
specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing under
the laws of
North Carolina. The Company has all licenses necessary to carry
out its business
as now being conducted, and is licensed and qualified to transact
business in
and is in good standing under the laws of each state in which any
Mortgaged
Property is located or is otherwise exempt under applicable law
from such
licensing or qualification or is otherwise not required under applicable
law to
effect such licensing or qualification and no demand for such licensing
or
qualification has been made upon the Company by any such state,
and in any event
the Company is in compliance with the laws of any such state to
the extent
necessary to ensure the enforceability of each Mortgage Loan and
the interim
servicing of the Mortgage Loans in accordance with the terms of
this Agreement.
No licenses or approvals obtained by the Company have been suspended
or revoked
by any court, administrative agency, arbitrator or governmental
body and no
proceedings are pending which might result in such suspension or
revocation;
(b) The
Company has the full power and authority and legal right to hold,
transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute,
deliver
and perform, and to enter into and consummate all transactions
contemplated by
this Agreement and the related Confirmation and to conduct its
business as
presently conducted; the Company has duly authorized the execution,
delivery and
performance of this Agreement and any agreements contemplated hereby,
has duly
executed and delivered this Agreement and the related Confirmation,
and any
agreements contemplated hereby, and this Agreement and the related
Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements
contemplated
hereby, constitute the legal, valid and binding obligations of
the Company,
enforceable against it in accordance with their respective terms,
except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles affecting
the
enforceability of the rights of creditors; and all requisite corporate
action
has been taken by the Company to make this Agreement, the related
Confirmation
and all agreements contemplated hereby valid and binding upon the
Company in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the
transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and
conditions of this Agreement and the related Confirmation will
conflict with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any
of the terms,
conditions or provisions of any legal restriction or any agreement
or instrument
to which the Company is now a party or by which it is bound, or
constitute a
default or result in an acceleration under any of the foregoing,
or result in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have
a material
adverse effect on the sale of the Mortgage Loans, the execution,
delivery,
performance or enforceability of this Agreement or the related
Confirmation, or
which is reasonably likely to have a material adverse effect on
the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by
the Company of
or compliance by the Company with this Agreement and the related
Confirmation,
except for consents, approvals, authorizations and orders which
have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement
and the related
Confirmation are in the ordinary course of business of the Company,
and the
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by
the Company pursuant to this Agreement and the related Confirmation
are not
subject to bulk transfer or any similar statutory provisions in
effect in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect to
each Mortgage
Note and Mortgage have been legal and in accordance with applicable
laws and
regulations, and in all material respects in accordance with Accepted
Servicing
Practices. The Company further represents and warrants that: with
respect to
escrow deposits and payments that the Company is entitled to collect,
all such
payments are in the possession of, or under the control of, the
Company or its
delegate, and there exist no deficiencies in connection therewith
for which
customary arrangements for repayment thereof have not been made;
all escrow
payments have been collected and are being maintained in full compliance
with
applicable state and federal law and the provisions of the related
Mortgage Note
and Mortgage; as to any Mortgage Loan that is the subject of an
escrow, escrow
of funds is not prohibited by applicable law and has been established
in an
amount sufficient to pay for every escrowed item that remains unpaid
and has
been assessed but is not yet due and payable; no escrow deposits
or other
charges or payments due under the Mortgage Note have been capitalized
under any
Mortgage or the related Mortgage Note; all Mortgage Interest Rate
adjustments
have been made in strict compliance with state and federal law
and the terms of
the related Mortgage Note; and any interest required to be paid
pursuant to
state and local law has been properly paid and credited;
(h) The
Company has not used selection procedures that identified the Mortgage
Loans as
being less desirable or valuable than other comparable mortgage
loans in the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the Purchaser
as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete
set of books
and records for each Mortgage Loan which shall be clearly marked
to reflect the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage
loans for HUD,
with such facilities, procedures and personnel necessary for the
sound servicing
of such mortgage loans. The Company is duly qualified, licensed,
registered and
otherwise authorized under all applicable federal, state and local
laws and
regulations and is in good standing to sell mortgage loans to and
service
mortgage loans;
(k) The
Company does not believe, nor does it have any cause or reason
to believe, that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent and
the sale of
the Mortgage Loans will not cause the Company to become insolvent.
The sale of
the Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared
by, or on
behalf of, the Company pursuant to this Agreement, the related
Confirmation or
in connection with the transactions contemplated hereby, contains
or will
contain any statement that is or will be inaccurate or misleading
in any
material respect;
(m) The
consideration received by the Company upon the sale of the Mortgage
Loans
constitutes fair consideration and reasonably equivalent value
for such Mortgage
Loans;
(n) The
Company has delivered to the Initial Purchaser financial statements
as to its
last two complete fiscal years. All such financial statements fairly
present the
pertinent results of operations and changes in financial position
for each of
such periods and the financial position at the end of each such
period of the
Company and its subsidiaries and have been prepared in accordance
with GAAP
consistently applied throughout the periods involved, except as
set forth in the
notes thereto. There has been no change in the business, operations,
financial
condition, properties or assets of the Company since the date of
the Company’s
financial statements that would have a material adverse effect
on its ability to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent
or other person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(p) The
Company is a member of MERS in good standing, and will comply in
all material
respects with the rules and procedures of MERS in connection with
the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are
registered
with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to
each Mortgage
Loan, as of the related Closing Date and as of the related Servicing
Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Initial Purchaser,
is complete,
true and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security interest
with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second
lien and second
priority security interest with respect to each Mortgage Loan which
is indicated
by the Company to be a Second Lien (as reflected on the Mortgage
Loan Schedule),
in either case, in the related Mortgaged Property securing the
related Mortgage
Note;
(c) As
of the
related Closing Date, the Mortgage Loan is not delinquent in payment
more than
30 days and has not been dishonored; there are no material defaults
under the
terms of the Mortgage Loan; the Company has not advanced funds,
or induced,
solicited or knowingly received any advance of funds from a party
other than the
owner of the Mortgaged Property subject to the Mortgage, directly
or indirectly,
for the payment of any amount required by the Mortgage Loan; no
payment with
respect to each Mortgage Loan has been contractually delinquent
during the
preceding twelve-month period;
(d) To
the
best of the Company’s knowledge, all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments
or ground rents
which previously became due and owing have been paid, or escrow
funds have been
established in an amount sufficient to pay for every such escrowed
item which
remains unpaid and which has been assessed but is not yet due and
payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or
modified in any respect, except by written instruments which have
been recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor
has been
released, in whole or in part, from the terms thereof except in
connection with
an assumption agreement and which assumption agreement is part
of the Mortgage
File and the terms of which are reflected in the related Mortgage
Loan Schedule;
the substance of any such waiver, alteration or modification has
been approved
by the issuer of any related title insurance policy, to the extent
required by
the related policy.
(f) The
Mortgage Note and the Mortgage are not subject to any right of
rescission,
set-off, counterclaim or defense, including, without limitation,
the defense of
usury, nor will the operation of any of the terms of the Mortgage
Note or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any
right of
rescission, set-off, counterclaim or defense, including the defense
of usury,
and no such right of rescission, set-off, counterclaim or defense
has been
asserted with respect thereto; and the Mortgagor was not a debtor
in any state
or federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by a Qualified Insurer, against loss by fire, windstorm,
hurricane,
hail damage or other perils normally under extended coverage endorsement,
in an
amount representing coverage not less than the lesser of (i) the
lesser of (a)
the maximum insurable value of the improvements securing such Mortgage
Loans and
(b) the full replacement cost of the improvements securing such
Mortgage Loan,
and (ii) the greater of (a) either (1) the outstanding principal
balance of the
Mortgage Loan with respect to each Mortgage Loan which is indicated
by the
Company to be a First Lien (as reflected on the Mortgage Loan Schedule)
or (2)
with respect to each Second Lien Mortgage Loan, the sum of the
outstanding
principal balance of the first lien on such Mortgage Loan and the
outstanding
principal balance of such Second Lien Mortgage Loan, and (b) an
amount such that
the proceeds thereof shall be sufficient to prevent the Mortgagor
and/or the
mortgagee from becoming a co-insurer, but in no event greater than
the maximum
amount permitted under applicable law. All such standard hazard
policies are in
full force and effect and on the date of origination contained
a standard
mortgagee clause naming the Company and its successors in interest
and assigns
as loss payee and such clause is still in effect and all premiums
due thereon
have been paid. If required by the Flood Disaster Protection Act
of 1973, as
amended, the Mortgage Loan is covered by a flood insurance policy
meeting the
requirements of the current guidelines of the Federal Insurance
Administration,
in an amount not less than the amount required by the Flood Disaster
Protection
Act of 1973, as amended. Such policy was issued by a Qualified
Insurer. The
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at
the Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance
at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Each
Mortgage Loan and, if any, the related prepayment penalty complied
in all
material respects with any and all requirements of any federal,
state or local
law including, without limitation, usury, truth in lending, real
estate
settlement procedures, consumer credit protection, equal credit
opportunity,
fair housing, disclosure, or predatory, fair and abusive lending
laws applicable
to the origination and servicing of loans of a type similar to
the Mortgage
Loans and the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other
than the
subordination of any Second Lien Mortgage Loan to the related First
Lien), in
whole or in part, or rescinded, and the Mortgaged Property has
not been released
from the lien of the Mortgage, in whole or in part nor has any
instrument been
executed that would effect any such release, cancellation, subordination
or
rescission. The Company has not waived the performance by the Mortgagor
of any
action, if the Mortgagor’s failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any
default resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected
(A) first
lien and first priority security interest with respect to each
Mortgage Loan
which is indicated by the Company to be a First Lien (as reflected
on the
Mortgage Loan Schedule), or (B) second lien and second priority
security
interest with respect to each Mortgage Loan which is indicated
by the Company to
be a Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Schedule), in
either case, on the Mortgaged Property including all buildings
on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the
foregoing
securing the Mortgage Note’s original principal balance. The Mortgage and the
Mortgage Note do not contain any evidence of any security interest
or other
interest or right thereto. Such lien is free and clear of all adverse
claims,
liens and encumbrances having priority over the first lien of the
Mortgage
subject only to (1) the lien of non-delinquent current real property
taxes and
assessments not yet due and payable, (2) covenants, conditions
and restrictions,
rights of way, easements and other matters of the public record
as of the date
of recording which are acceptable to mortgage lending institutions
generally and
either (A) which are referred to or otherwise considered in the
appraisal made
for the originator of the Mortgage Loan, or (B) which do not adversely
affect
the appraised value of the Mortgaged Property as set forth in such
appraisal,
(3) other matters to which like properties are commonly subject
which do not
materially interfere with the benefits of the security intended
to be provided
by the Mortgage or the use, enjoyment, value or marketability of
the related
Mortgaged Property and (4) with respect to each Mortgage Loan which
is indicated
by the Company to be a Second Lien Mortgage Loan (as reflected
on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security
agreement,
chattel mortgage or equivalent document related to and delivered
in connection
with the Mortgage Loan establishes and creates a valid, subsisting,
enforceable
and perfected (A) first lien and first priority security interest
with respect
to each Mortgage Loan which is indicated by the Company to be a
First Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien and
second priority
security interest with respect to each Mortgage Loan which is indicated
by the
Company to be a Second Lien Mortgage Loan (as reflected on the
Mortgage Loan
Schedule), in either case, on the property described therein, and
the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine
and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application
affecting the
rights of creditors and by general equitable principles and the
Company has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage had
the legal
capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have
been duly and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan
has taken place
on the part of the Company or the Mortgagor, or, to the best of
the Company’s
knowledge, any other party involved in the origination or servicing
of the
Mortgage Loan. The proceeds of the Mortgage Loan have been fully
disbursed and
there is no requirement for future advances thereunder, and any
and all
requirements as to completion of any on-site or off-site improvements
and as to
disbursements of any escrow funds therefor have been complied with.
All costs,
fees and expenses incurred in making or closing the Mortgage Loan
and the
recording of the Mortgage were paid or are in the process of being
paid, and the
Mortgagor is not entitled to any refund of any amounts paid or
due under the
Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage
Loan and the
indebtedness evidenced by the Mortgage Note, and upon recordation
the Purchaser
or its designee will be the owner of record of the Mortgage and
the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage
Loan to the
Purchaser, the Company will retain the Servicing File in trust
for the Purchaser
only for the purpose of interim servicing and supervising the interim
servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including
the Mortgage
Note and the Mortgage, were not subject to an assignment or pledge,
and the
Company had good and marketable title to and was the sole owner
thereof and had
full right to transfer and sell the Mortgage Loan to the Purchaser
free and
clear of any encumbrance, equity, lien, pledge, charge, claim or
security
interest and has the full right and authority subject to no interest
or
participation of, or agreement with, any other party, to sell and
assign the
Mortgage Loan pursuant to this Agreement and following the sale
of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear
of any
encumbrance, equity, participation interest, lien, pledge, charge,
claim or
security interest. The Company intends to relinquish all rights
to possess,
control and monitor the Mortgage Loan, except for the purposes
of interim
servicing the Mortgage Loan as set forth in this Agreement. Each
Mortgagor is a
natural person;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to prudent lenders in the secondary market
with respect
to title insurance and qualified to do business in the jurisdiction
where the
Mortgaged Property is located, insuring (subject to the exceptions
contained in
(j)(1), (2) and (3) above and, with respect to each Mortgage Loan
which is
indicated by the Company to be a Second Lien Mortgage Loan (as
reflected on the
Mortgage Loan Schedule) clause (4)) the Company, its successors
and assigns, as
to the first (or, where applicable, second) priority lien of the
Mortgage in the
original principal amount of the Mortgage Loan and, with respect
to each
Adjustable Rate Mortgage Loan, against any loss by reason of the
invalidity or
unenforceability of the lien resulting from the provisions of the
Mortgage
providing for adjustment in the Mortgage Interest Rate and Monthly
Payment.
Additionally, such policy affirmatively insures ingress and egress
to and from
the Mortgaged Property. Where required by applicable state law
or regulation,
the Mortgagor has been given the opportunity to choose the carrier
of the
required mortgage title insurance. The Company, its successors
and assigns, are
the sole insureds of such lender’s title insurance policy, such title insurance
policy has been duly and validly endorsed to the Purchaser or the
assignment to
the Purchaser of the Company’s interest therein does not require the consent of
or notification to the insurer and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon
the consummation
of the transactions contemplated by this Agreement and the related
Confirmation.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Company, has
done, by act or
omission, anything which would impair the coverage of such lender’s title
insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing
under the
Mortgage or the related Mortgage Note and no event which, with
the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default,
breach,
violation or event permitting acceleration. With respect to each
Mortgage Loan
which is indicated by the Company to be a Second Lien Mortgage
Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is
in full force and
effect, (ii) there is no default, breach, violation or event of
acceleration
existing under such First Lien mortgage or the related mortgage
note, (iii)
either no consent for the Mortgage Loan is required by the holder
of the First
Lien or such consent has been obtained and is contained in the
Mortgage File,
(iv) to the best of Company’s knowledge, no event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration
thereunder, and
either (A) the First Lien mortgage contains a provision which allows
or (B)
applicable law requires, the mortgagee under the Second Lien Mortgage
Loan to
receive notice of, and affords such mortgagee an opportunity to
cure any default
by payment in full or otherwise under the First Lien mortgage,
and (v) such
Second Lien Mortgage Loan is secured by a one- to four-family residence
that is
the principal residence of the Mortgagor;
(o) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could
give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens
prior to or equal to the lien of the related Mortgage;
(p) To
the
best of the Company’s knowledge, all improvements subject to the Mortgage which
were considered in determining the Appraised Value of the Mortgaged
Property lie
wholly within the boundaries and building restriction lines of
the Mortgaged
Property (and wholly within the project with respect to a condominium
unit) and
no improvements on adjoining properties encroach upon the Mortgaged
Property
except those which are insured against by the title insurance policy
referred to
in clause (m) above and all improvements on the property comply
with all
applicable zoning and subdivision laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage
Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage
Loan and the
Company has prudently originated and underwritten each Mortgage
Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on forms
generally
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Mortgage Loan bears
interest at the
Mortgage Interest Rate set forth in the related Mortgage Loan Schedule,
and
Monthly Payments under the Mortgage Note are due and payable on
the Due Date set
forth on the related Mortgage Loan Schedule. The Mortgage contains
the usual and
enforceable provisions of the originator at the time of origination
for the
acceleration of the payment of the unpaid principal amount of the
Mortgage Loan
if the related Mortgaged Property is sold without the prior consent
of the
mortgagee thereunder;
(r) To
the
best of the Company’s knowledge, the Mortgaged Property is not subject to any
material damage by waste, fire, earthquake, windstorm, flood or
other casualty,
and is in good repair. At origination of the Mortgage Loan there
was, and there
currently is, no proceeding pending for the total or partial condemnation
of the
Mortgaged Property. To the best of the Company’s knowledge, there have not been
any condemnation proceedings with respect to the Mortgaged Property
and there
are no such proceedings scheduled to commence at a future date;
(s) The
related Mortgage contains customary and enforceable provisions
such as to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided thereby.
There is no homestead or other exemption available to the Mortgagor
which would
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and
duly qualified
if required under applicable law to act as such, has been properly
designated
and currently so serves and is named in the Mortgage, and no fees
or expenses
are or will become payable by the Purchaser to the trustee under
the deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged Property
which, (a)
with respect to First Lien Mortgage Loans, was on appraisal form
1004 and (b)
was signed prior to the final approval of the mortgage loan application
by a
Qualified Appraiser, who had no interest, direct or indirect, in
the Mortgaged
Property or in any loan made on the security thereof, and whose
compensation is
not affected by the approval or disapproval of the Mortgage Loan,
and the
appraisal and appraiser both satisfy prudent lenders in the secondary
market and
requirements of Title XI of FIRREA and the regulations promulgated
thereunder,
all as in effect on the date the Mortgage Loan was originated.
The appraisal is
in a form generally acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether as
mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which
they held
and disposed of such interest, were) (A) in compliance with any
and all
applicable licensing requirements of the laws of the state wherein
the Mortgaged
Property is located, and (B) (1) organized under the laws of such
state, or (2)
qualified to do business in such state, or (3) federal savings
and loan
associations or national banks or a Federal Home Loan Bank or savings
bank
having principal offices in such state, or (4) not doing business
in such
state;
(w) The
related Mortgage Note is not and has not been secured by any collateral
except
the lien of the corresponding Mortgage and the security interest
of any
applicable security agreement or chattel mortgage referred to in
(j) above and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage
Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent
and the
Company has no knowledge of any circumstances or condition with
respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors to
regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become
delinquent, or materially adversely affect the value or marketability
of the
Mortgage Loan;
(aa) Principal
payments on the Mortgage Loan commenced no more than sixty (60)
days after the
funds were disbursed in connection with the Mortgage Loan. The
Mortgage Loans
have an original term to maturity of not more than 30 years, with
interest
payable in arrears on the Due Date indicated on the related Mortgage
Loan
Schedule. Each Mortgage Note (other than with respect to a Balloon
Mortgage
Loan) requires a monthly payment which is sufficient to fully amortize
the
original principal balance over the original term thereof (other
than during the
interest-only period with respect to a Mortgage Loan identified
on the related
Mortgage Loan Schedule as an interest-only Mortgage Loan) and to
pay interest at
the related Mortgage Interest Rate. With respect to each Mortgage
Loan
identified on the Mortgage Loan Schedule as an interest-only Mortgage
Loan, the
interest-only period is five (5) years and following the expiration
of such
interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining
term of the
Mortgage Loan. With respect to each Balloon Mortgage Loan, the
Mortgage Note
requires a monthly payment which is sufficient to fully amortize
the original
principal balance over the original term thereof and to pay interest
at the
related Mortgage Interest Rate and requires a final Monthly Payment
substantially greater than the preceding monthly payment which
is sufficient to
repay the remained unpaid principal balance of the Balloon Mortgage
Loan as the
Due Date of such monthly payment. No Mortgage Loan contains terms
or provisions
which would result in negative amortization. No Mortgage Loan provides
for the
capitalization or forbearance of interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment
of Mortgage is
in recordable form and is acceptable for recording under the laws
of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the related
Mortgage
Loan Schedule and consists of a single parcel of real property
with a detached
single family residence erected thereon, or a townhouse, or a two-to
four-family
dwelling, or an individual condominium unit in a condominium project,
or an
individual unit in a planned unit development or a de minimis planned
unit
development, provided, however, that no residence or dwelling is
a single parcel
of real property with a cooperative housing corporation erected
thereon, or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination
no portion
of the Mortgaged Property has been used for commercial purposes,
provided, that
Mortgaged Properties which contain a home office shall not be considered
as
being used for commercial purposes as long as the Mortgaged Property
has not
been altered for such commercial purposes and is not storing any
chemicals or
raw materials other than those commonly used for homeowner repair,
maintenance
and/or household purposes. If a Mortgaged Property is used for
mixed-use
purposes, then (i) such Mortgaged Property is a one-family
dwelling that the Mortgagor occupies as a principal residence,
(ii)such
Mortgaged Property represents a legal, permissible use of the property
under the
local zoning requirements, (iii) such Mortgaged Property is primarily
residential in nature,
(iv)
the market
value of such Mortgaged Property must be primarily a function of
its residential
characteristics, rather than of the business use or any special
business-use
modifications that were made, (v) the Mortgagor is both the owner
and the
operator of the business, (vi) such Mortgaged Property has not
been altered for
business use and (vii) such Mortgaged Property does not display
any signage
indicating the business nature of such Mortgaged Property;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the Mortgage
Loans are
subject to a Prepayment Penalty. For any Mortgage Loan originated
prior to
October 1, 2002 that is subject to a Prepayment Penalty, such prepayment
penalty
does not extend beyond five years after the date of origination.
For any
Mortgage Loan originated on or following October 1, 2002 that is
subject to a
Prepayment Penalty, such prepayment penalty does not extend beyond
three years
after the date of origination. Any such prepayment penalty is permissible
and
enforceable in accordance with its terms upon the Mortgagor’s full and voluntary
principal prepayment under applicable law. With respect to any
Mortgage Loan
that contains a provision permitting imposition of a penalty upon
a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit
to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such
a prepayment
penalty; (iii) the prepayment penalty was adequately disclosed
to the Mortgagor
in the loan documents pursuant to applicable state and federal
law; and (iv)
such prepayment penalty shall not be imposed in any instance where
the Mortgage
Loan is accelerated or paid off in connection with the workout
of a delinquent
mortgage or due to the Mortgagor’s default, notwithstanding that the terms of
the Mortgage Loan or state or federal law might permit the imposition
of such a
prepayment penalty;
(ff) To
the
best of the Company’s knowledge, the Mortgaged Property is lawfully occupied
under applicable law, and all inspections, licenses and certificates
required to
be made or issued with respect to all occupied portions of the
Mortgaged
Property and, with respect to the use and occupancy of the same,
including but
not limited to certificates of occupancy and fire underwriting
certificates,
have been made or obtained from the appropriate authorities;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium or
planned unit
development project meets the eligibility requirements of the Seller’s
Underwriting Guidelines. There is no litigation pending with respect
to the
related condominium unit, the development or the homeowner’s
association;
(hh)
To the
best of the Company’s knowledge, there is no pending action or proceeding
directly involving the Mortgaged Property in which compliance with
any
environmental law, rule or regulation is an issue; to the best
of the Company’s
knowledge, there is no violation of any environmental law, rule
or regulation
with respect to the Mortgaged Property; and to the best of the
Company’s
knowledge, nothing further remains to be done to satisfy in full
all
requirements of each such law, rule or regulation constituting
a prerequisite to
use and enjoyment of said property;
(ii) The
Mortgagor has not notified the Company requesting relief under
the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act,
and
the Company has no knowledge of any relief requested or allowed
to the Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related
Closing Date
which has resulted or will result in an exclusion from, denial
of, or defense to
coverage under any insurance policy related to a Mortgage Loan
(including,
without limitation, any exclusions, denials or defenses which would
limit or
reduce the availability of the timely payment of the full amount
of the loss
otherwise due thereunder to the insured) whether arising out of
actions,
representations, errors, omissions, negligence, or fraud, or for
any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association,
a savings bank,
a commercial bank, a credit union, an insurance company, or similar
institution
which is supervised and examined by a federal or state authority,
or by a
mortgagee approved by the Secretary of HUD pursuant to Sections
203 and 211 of
the National Housing Act;
(mm) No
Mortgaged Property is subject to a ground lease;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly assessed to the Mortgagor and no
claims will
arise as to broker fees that are double charged and for which the
Mortgagor
would be entitled to reimbursement;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been
delivered to the
Purchaser certifying that the original Mortgage Note has been lost
or destroyed
and not been replaced, if such Mortgage Loan is subsequently in
default, the
enforcement of such Mortgage Loan will not be materially adversely
affected by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the
Assignment of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit
A-1 and
required to be delivered on the related Closing Date have been
delivered to the
Purchaser or its designee all in compliance with the specific requirements
of
this Agreement. With respect to each Mortgage Loan, the Company
is in possession
of a complete Mortgage File and Servicing File except for such
documents as have
been delivered to the Purchaser or its designee;
(rr) To
the
best of the Company’s knowledge, all information supplied by, on behalf of, or
concerning the Mortgagor is true, accurate and complete and does
not contain any
statement that is or will be inaccurate or misleading in any material
respect;
(ss)
To the
best of the Company’s knowledge, there does not exist on the related Mortgaged
Property any hazardous substances, hazardous wastes or solid wastes,
as such
terms are defined in the Comprehensive Environmental Response Compensation
and
Liability Act, the Resource Conservation and Recovery Act of 1976,
or other
federal, state or local environmental legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination
of more than
100% and no Mortgage Loan had a Combined Loan-to-Value Ratio at
the time of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of
the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
law, including any predatory or abusive lending laws (or a similarly
classified
loan using different terminology under a law imposing heightened
regulatory
scrutiny or additional legal liability for a residential mortgage
loan having
high interest rates, points and/or fees), (c) a High Cost Loan
or Covered Loan,
as applicable (as such terms are defined in the current version
of Standard
& Poor’s LEVELS® Glossary, Appendix E) or (d) in violation of any state law
or ordinance comparable to HOEPA;
(vv) No
Mortgagor was required to purchase any credit life, disability,
accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit.
No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection
with the
origination of the Mortgage Loan; No proceeds from any Mortgage
Loan were used
to purchase or finance single-premium insurance policies or debt
cancellation
agreements as part of the origination of or as a condition to closing,
such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related Closing
Date have
been consolidated with the outstanding principal amount secured
by the Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate
and single repayment term. The lien of the Mortgage securing the
consolidated
principal amount is expressly insured as having (A) first lien
priority with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien priority
with respect to each Mortgage Loan which is indicated by the Company
to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan Data
Transmission),
in either case, by a title insurance policy, an endorsement to
the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal
amount does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year
consisting of
twelve 30-day months;
(yy) Unless
otherwise set forth on the related Mortgage Loan Schedule, no Mortgage
Loan is a
Balloon Mortgage Loan;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by
MERS and such MIN
is accurately provided on the related Mortgage Loan Schedule. The
related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received
any notice of
liens or legal actions with respect to such Mortgage Loan and no
such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing is legally
classified
as real property, is permanently affixed to a foundation, is the
principal
residence of the Mortgagor, meets the characteristics of site built
housing and
is deemed to be "modular housing" as such term is defined by the
Mortgage
Bankers Association;
(ccc) [Reserved];
(ddd) The
Company has complied with all applicable anti-money laundering
laws and
regulations, including without limitation the USA Patriot Act of
2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program
as required
by the Anti-Money Laundering Laws, has conducted the requisite
due diligence in
connection with the origination of each Mortgage Loan for purposes
of the
Anti-Money Laundering Laws, including with respect to the legitimacy
of the
applicable Mortgagor and the origin of the assets used by the said
Mortgagor to
purchase the property in question, and maintains, and will maintain,
sufficient
information to identify the applicable Mortgagor for purposes of
the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification pursuant
to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department
of the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions
of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage Loan
if the
related first lien provides for negative amortization, the LTV
was calculated at
the maximum principal balance of such first lien that could result
upon
application of such negative amortization feature;
(fff) No
predatory or deceptive lending practices, including but not limited
to, the
extension of credit to the applicable Mortgagor without regard
for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to
said Mortgagor which has no apparent benefit to said Mortgagor,
were employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied
manufactured
home located in the State of Georgia was originated (or modified)
on or after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgagor was encouraged or required to select a Mortgage Loan
product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as,
without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing
through the
Mortgage Loan originator’s higher priced subprime lending channel was directed
towards or offered the Mortgage Loan’s originator standard mortgage line if the
Borrower was able to qualify for one of the standard products.
If, at the time
of loan application, the Mortgagor may have qualified for a lower
cost credit
product then the Mortgagor was offered such lower cost credit product
by the
Mortgage Loan’s originator;
(iii) The
methodology used in underwriting the extension of credit for each
Mortgage Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit.
The
methodology employed objective criteria that related to such facts
as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the
Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments
on the
Mortgage Loan;
(jjj) All
points, fees and charges (including finance charges) and whether
or not
financed, assessed, collected or to be collected in connection
with the
origination and servicing of each Mortgage Loan have been disclosed
in writing
to the Mortgagor in accordance with applicable state and federal
law and
regulation;
(kkk) All
points and fees related to each Mortgage Loan were disclosed in
writing to the
Mortgagor in accordance with applicable state and federal law and
regulation;
(lll) [Reserved];
(mmm) [Reserved];
(nnn) No
Mortgage Loan is a "High-Cost Home Loan" under the New Jersey Home
Ownership
Security Act of 2002 (the "NJ Act"); and each Mortgage Loan subject
to the NJ
Act is considered under the NJ Act as, either, a (1) purchase money
Home Loan,
(2) purchase money Covered Loan (with respect to Mortgage Loans
which were
originated between November 26, 2003 and July 7, 2004), (3) a rate/term
refinance Home Loan, or (4) a cash-out refinance Home Loan for
which the related
Mortgage File contains a statement signed by the Mortgagor stating
that the
proceeds of the loan will not be used for the purpose of home
improvement;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made or caused to be made any payment in the
nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the Commonwealth
of
Massachusetts was made to pay off or refinance an existing loan
or other debt of
the related borrower (as the term "borrower" is defined in the
regulations
promulgated by the Massachusetts Secretary of State in connection
with the
Massachusetts General Laws Chapter 183, Section 28C (the “Mass AF Law”) unless
(a) the related Mortgage Interest Rate (that would be effective
once the
introductory rate expires, with respect to Adjustable Rate Mortgage
Loans) did
or would not exceed by more than 2.50% the yield on United States
Treasury
securities having comparable periods of maturity to the maturity
of the related
Mortgage Loan as of the fifteenth day of the month immediately
preceding the
month in which the application for the extension of credit was
received by the
related lender or (b) the Mortgage Loan is an “open-end home loan” (as such term
is used in the Mass AF Law or the regulations promulgated in connection
therewith) and the related Mortgage Note provides that the related
Mortgage
Interest Rate may not exceed at any time the Prime rate index as
published in
the Wall
Street Journal
plus a
margin of one percent,
or if
(i) the refinancing transaction was in the “borrower’s interest” as determined
in accordance with the Mass AF Law and (ii) the related Servicing
File contains
evidence of the Company’s determination of “borrower’s interest” in accordance
with the Mass AF Law; and
(rrr) No
Mortgage Loan is a Convertible Mortgage Loan.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006,
(“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
First NLC Financial Services, LLC (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other
valuable
consideration the receipt and sufficiency of which hereby are
acknowledged, and
of the mutual covenants herein contained, the parties hereto
hereby agree as
follows:
I.
Assignment and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee
(x) all of the right, title and interest of the Assignor, as
purchaser, in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated
as of July
1, 2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement
relates to the
Mortgage Loans and (y) other than as provided below with respect
to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee
hereunder any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase
Agreement
which are not the mortgage loans set forth on the Mortgage Loan
Schedule and are
not the subject of this Agreement.
II.
Recognition of the Company
From
and
after the date hereof, the Company shall and does hereby recognize
that the
Assignee will transfer the Mortgage Loans and assign its rights
under the
Purchase Agreement (solely to the extent set forth herein) and
this Agreement to
MASTR Asset-Backed Securities Trust 2006-HE4 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 2006
(the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust
administrator
(including its successors in interest and any successor servicers
under the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), ▇▇▇▇▇ Fargo
Bank, N.A. and Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing as
servicers (the “Servicers”) and U.S. Bank National Association, as trustee
(including its successors in interest and any successor trustees
under the
Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the
date hereof (i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer
and the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage
Loans, under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches
of
representations and warranties set forth in the Purchase Agreement,
and shall be
entitled to enforce all of the obligations of the Company thereunder
insofar as
they relate to the Mortgage Loans, and (iii) all references to the
Purchaser (insofar as they relate to the rights, title and interest
and, with
respect to obligations of the Purchaser, only insofar as they
relate to the
enforcement of the representations, warranties and covenants
of the Company) or
the Custodian under the Purchase Agreement insofar as they relate
to the
Mortgage Loans, shall be deemed to refer to the Trust (including
the Trustee,
the Trust Administrator, the Master Servicer and the Servicer
acting on the
Trust’s behalf). Neither the Company nor the Assignor shall amend or
agree to
amend, modify, waiver, or otherwise alter any of the terms or
provisions of the
Purchase Agreement which amendment, modification, waiver or other
alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without
the prior
written consent of the Trustee.
III.
Representations and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee
and the Trust as
of the date hereof that:
(a) Attached
hereto as Exhibit
B
is a
true and accurate copy of the representations and warranties
set forth in
Sections 3.01 and 3.02 of the Purchase Agreement, which Purchase
Agreement is in
full force and effect as of the date hereof and the provisions
of which have not
been waived, amended or modified in any respect, nor has any
notice of
termination been given thereunder;
(b) The
Company is duly organized, validly existing and in good standing
under the laws
of the jurisdiction of its incorporation;
(c) The
Company has full power and authority to execute, deliver and
perform its
obligations under this Agreement and has full power and authority
to perform its
obligations under the Purchase Agreement. The execution by the
Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now
a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Company or its property is subject.
The
execution, delivery and performance by the Company of this Agreement
have been
duly authorized by all necessary corporate action on part of
the Company. This
Agreement has been duly executed and delivered by the Company,
and, upon the due
authorization, execution and delivery by the Assignor and the
Assignee, will
constitute the valid and legally binding obligation of the Company,
enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium
or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is considered
in a proceeding in equity or at law;
(d) No
consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be
obtained or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(e) There
is
no action, suit, proceeding or investigation pending or threatened
against the
Company, before any court, administrative agency or other tribunal,
which would
draw into question the validity of this Agreement or the Purchase
Agreement, or
which, either in any one instance or in the aggregate, would
result in any
material adverse change in the ability of the Company to perform
its obligations
under this Agreement or the Purchase Agreement, and the Company
is
solvent.
2. Pursuant
to Section 8.01(b)(iii) of the Purchase Agreement, the Company
hereby represents
and warrants, for the benefit of the Assignor, the Assignee and
the Trust, that
the representations and warranties set forth in Sections 3.01
and 3.02 of the
Purchase Agreement (set forth on Schedule 1 hereto), are true
and correct as of
the date hereof, as if such representations and warranties were
made on such
date.
3. The
Assignor hereby makes the following representations and warranties
as of the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material
respects with
applicable local, state, and federal laws, including, but not
limited to, all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable
predatory and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E); and
(d) No
Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is
governed by the Georgia Fair Lending Act;
IV.
Remedies for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available
to the
Assignor, the Assignee and the Trust (including the Trustee and
the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth
in Section 3 hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement
as if they
were set forth herein (including without limitation the repurchase
and indemnity
obligations set forth therein). It is understood by the parties
hereto that a
breach of the representations and warranties made in Sections
3.02 (h), (n),
(ee), (pp), (uu), (vv), (ccc), (ggg), (hhh), (iii), (jjj), (ooo),
(rrr) or (sss)
of the Purchase Agreement shall be deemed to materially and adversely
affect the
value of the related mortgage loan or the interests of the Trust
in the related
mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available
to the
Assignee and the Trust (including the Trustee and the Master
Servicer acting on
the Trust’s behalf) in connection with any breach of the representations
and
warranties made by the Assignor set forth in Section 3 hereof
shall be as set
forth in Section 2.03 of the Pooling and Servicing Agreement
as if they were set
forth herein (including without limitation the repurchase obligations
set forth
therein). The
Assignor hereby acknowledges and agrees that a breach of any
one of the
representations set forth in Section 5 above will be deemed to
materially
adversely affect the interests of the certificateholders and
shall require a
repurchase of the affected Mortgage Loan(s).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation
of the
Company with respect to any breach of representation and warranty
made by the
Company regarding the Mortgage Loans.
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the
State of New
York, without regard to conflicts of law principles, and the
obligations, rights
and remedies of the parties hereunder shall be determined in
accordance with
such laws.
No
term
or provision of this Agreement may be waived or modified unless
such waiver or
modification is in writing and signed by the party against whom
such waiver or
modification is sought to be enforced, with the prior written
consent of the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and
assigns of the
parties hereto and (ii) the Trust (including the Trustee, the
Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor,
Assignee or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to
the extent
assigned hereunder) by Assignor to Assignee and by Assignee to
the Trust and
nothing contained herein shall supersede or amend the terms of
the Purchase
Agreement.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
In
the
event that any provision of this Agreement conflicts with any
provision of the
Purchase Agreement with respect to the Mortgage Loans, the terms
of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto)
but not defined in
this Agreement shall have the meanings given to such terms in
the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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FIRST
NLC FINANCIAL SERVICES, LLC
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By:
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Name:
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EXHIBIT
A
Mortgage
Loan Schedule
Available
Upon Request
SCHEDULE
1
Capitalized
terms used herein but not defined in this Schedule 1 shall have
the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that
as of each
Closing Date and as of each Servicing Transfer Date or as of
such date
specifically provided herein:
(a) The
Company is a limited liability company duly organized and validly
existing under
the laws of Florida. The Company has all licenses necessary to
carry out its
business as now being conducted, and is licensed and qualified
to transact
business in and is in good standing under the laws of each state
in which any
Mortgaged Property is located or is otherwise exempt under applicable
law from
such licensing or qualification or is otherwise not required
under applicable
law to effect such licensing or qualification and no demand for
such licensing
or qualification has been made upon the Company by any such state,
and in any
event the Company is in compliance with the laws of any such
state to the extent
necessary to ensure the enforceability of each Mortgage Loan
and the interim
servicing of the Mortgage Loans in accordance with the terms
of this Agreement.
No licenses or approvals obtained by the Company have been suspended
or revoked
by any court, administrative agency, arbitrator or governmental
body and no
proceedings are pending which might result in such suspension
or
revocation;
(b) The
Company has the full power and authority and legal right to hold,
transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver
and perform, and to enter into and consummate all transactions
contemplated by
this Agreement and the related Confirmation and to conduct its
business as
presently conducted; the Company has duly authorized the execution,
delivery and
performance of this Agreement and any agreements contemplated
hereby, has duly
executed and delivered this Agreement and the related Confirmation,
and any
agreements contemplated hereby, and this Agreement and the related
Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements
contemplated
hereby, constitute the legal, valid and binding obligations of
the Company,
enforceable against it in accordance with their respective terms,
except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles
affecting the
enforceability of the rights of creditors; and all requisite
corporate action
has been taken by the Company to make this Agreement, the related
Confirmation
and all agreements contemplated hereby valid and binding upon
the Company in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the
transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and
conditions of this Agreement and the related Confirmation will
conflict with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any
of the terms,
conditions or provisions of any legal restriction or any agreement
or instrument
to which the Company is now a party or by which it is bound,
or constitute a
default or result in an acceleration under any of the foregoing,
or result in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have
a material
adverse effect on the sale of the Mortgage Loans, the execution,
delivery,
performance or enforceability of this Agreement or the related
Confirmation, or
which is reasonably likely to have a material adverse effect
on the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance
by the Company of
or compliance by the Company with this Agreement and the related
Confirmation,
except for consents, approvals, authorizations and orders which
have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement
and the related
Confirmation are in the ordinary course of business of the Company,
and the
transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by
the Company pursuant to this Agreement and the related Confirmation
are not
subject to bulk transfer or any similar statutory provisions
in effect in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect
to each Mortgage
Note and Mortgage have been legal and in accordance with applicable
laws and
regulations, and in all material respects in accordance with
Accepted Servicing
Practices. The Company further represents and warrants that:
with respect to
escrow deposits and payments that the Company is entitled to
collect, all such
payments are in the possession of, or under the control of, the
Company or its
delegate, and there exist no deficiencies in connection therewith
for which
customary arrangements for repayment thereof have not been made;
all escrow
payments have been collected and are being maintained in full
compliance with
applicable state and federal law and the provisions of the related
Mortgage Note
and Mortgage; as to any Mortgage Loan that is the subject of
an escrow, escrow
of funds is not prohibited by applicable law and has been established
in an
amount sufficient to pay for every escrowed item that remains
unpaid and has
been assessed but is not yet due and payable; no escrow deposits
or other
charges or payments due under the Mortgage Note have been capitalized
under any
Mortgage or the related Mortgage Note; all Mortgage Interest
Rate adjustments
have been made in strict compliance with state and federal law
and the terms of
the related Mortgage Note; and any interest required to be paid
pursuant to
state and local law has been properly paid and credited;
(h) The
Company has not used selection procedures that identified the
Mortgage Loans as
being less desirable or valuable than other comparable mortgage
loans in the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the
Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete
set of books
and records for each Mortgage Loan which shall be clearly marked
to reflect the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage
loans for HUD,
with such facilities, procedures and personnel necessary for
the sound servicing
of such mortgage loans. The Company is duly qualified, licensed,
registered and
otherwise authorized under all applicable federal, state and
local laws and
regulations and is in good standing to sell mortgage loans to
and service
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and no event has
occurred which
would make the Company unable to comply with eligibility requirements
or which
would require notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(k) The
Company does not believe, nor does it have any cause or reason
to believe, that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent
and the sale of
the Mortgage Loans will not cause the Company to become insolvent.
The sale of
the Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared
by, or on
behalf of, the Company pursuant to this Agreement, the related
Confirmation or
in connection with the transactions contemplated hereby, contains
or will
contain any statement that is or will be inaccurate or misleading
in any
material respect. The Company has prudently originated and underwritten
each
Mortgage Loan;
(m) The
consideration received by the Company upon the sale of the Mortgage
Loans
constitutes fair consideration and reasonably equivalent value
for such Mortgage
Loans;
(n) The
Company has delivered to the Initial Purchaser financial statements
as to its
last two complete fiscal years. All such financial statements
fairly present the
pertinent results of operations and changes in financial position
for each of
such periods and the financial position at the end of each such
period of the
Company and its subsidiaries and have been prepared in accordance
with GAAP
consistently applied throughout the periods involved, except
as set forth in the
notes thereto. There has been no change in the business, operations,
financial
condition, properties or assets of the Company since the date
of the Company’s
financial statements that would have a material adverse effect
on its ability to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent
or other person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(p)
The
Company is a member of MERS in good standing, and will comply
in all material
respects with the rules and procedures of MERS in connection
with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans
are registered
with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to
each Mortgage
Loan, as of the related Closing Date and as of the related Servicing
Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule,
including any
diskette or other related data tapes sent to the Initial Purchaser,
is complete,
true and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security
interest with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second
lien and second
priority security interest with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien (as reflected on the Mortgage
Loan Schedule),
in either case, in the related Mortgaged Property securing the
related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such
Mortgage Loan have
been made as of the related Closing Date, the Mortgage Loan is
not delinquent in
payment more than 30 days and has not been dishonored; there
are no material
defaults under the terms of the Mortgage Loan; the Company has
not advanced
funds, or induced, solicited or knowingly received any advance
of funds from a
party other than the owner of the Mortgaged Property subject
to the Mortgage,
directly or indirectly, for the payment of any amount required
by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been
delinquent during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer
and municipal
charges, leasehold payments or ground rents which previously
became due and
owing have been paid, or escrow funds have been established in
an amount
sufficient to pay for every such escrowed item which remains
unpaid and which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or
modified in any respect, except by written instruments which
have been recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor
has been
released, in whole or in part, from the terms thereof except
in connection with
an assumption agreement and which assumption agreement is part
of the Mortgage
File and the terms of which are reflected in the related Mortgage
Loan Schedule;
the substance of any such waiver, alteration or modification
has been approved
by the issuer has been approved by the issuer of any related
title insurance
policy, to the extent required by the related policy.
(f) The
Mortgage Note and the Mortgage are not subject to any right of
rescission,
set-off, counterclaim or defense, including, without limitation,
the defense of
usury, nor will the operation of any of the terms of the Mortgage
Note or the
Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any
right of
rescission, set-off, counterclaim or defense, including the defense
of usury,
and no such right of rescission, set-off, counterclaim or defense
has been
asserted with respect thereto; and the Mortgagor was not a debtor
in any state
or federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the
Mortgaged Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ Guides,
against loss
by fire, hazards of extended coverage and such other hazards
as are provided for
in the ▇▇▇▇▇▇ Mae Guides or by the ▇▇▇▇▇▇▇ Mac Guides, in an
amount representing
coverage not less than the lesser of (i) the maximum insurable
value of the
improvements securing such Mortgage Loans, and (ii) the greater
of (a) either
(1) the outstanding principal balance of the Mortgage Loan with
respect to each
Mortgage Loan which is indicated by the Company to be a First
Lien (as reflected
on the Mortgage Loan Schedule) or (2) with respect to each Second
Lien Mortgage
Loan, the sum of the outstanding principal balance of the first
lien on such
Mortgage Loan and the outstanding principal balance of such Second
Lien Mortgage
Loan, and (b) an amount such that the proceeds thereof shall
be sufficient to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer,
but in no
event greater than the maximum amount permitted under applicable
law. All such
standard hazard policies are in full force and effect and on
the date of
origination contained a standard mortgagee clause naming the
Company and its
successors in interest and assigns as loss payee and such clause
is still in
effect and all premiums due thereon have been paid. If required
by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan
is covered by a
flood insurance policy meeting the requirements of the current
guidelines of the
Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇
Mac requirements, in an amount not less than the amount required
by the Flood
Disaster Protection Act of 1973, as amended. Such policy was
issued by an
insurer acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines.
The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance
at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Each
Mortgage Loan and, if any, the related prepayment penalty complied
in all
material respects with any and all requirements of any federal,
state or local
law including, without limitation, usury, truth in lending, real
estate
settlement procedures, consumer credit protection, equal credit
opportunity,
fair housing, disclosure, or predatory, fair and abusive lending
laws applicable
to the origination and servicing of loans of a type similar to
the Mortgage
Loans and the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other
than the
subordination of any Second Lien Mortgage Loan to the related
First Lien), in
whole or in part, or rescinded, and the Mortgaged Property has
not been released
from the lien of the Mortgage, in whole or in part nor has any
instrument been
executed that would effect any such release, cancellation, subordination
or
rescission. The Company has not waived the performance by the
Mortgagor of any
action, if the Mortgagor’s failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any
default resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected
(A) first
lien and first priority security interest with respect to each
Mortgage Loan
which is indicated by the Company to be a First Lien (as reflected
on the
Mortgage Loan Schedule), or (B) second lien and second priority
security
interest with respect to each Mortgage Loan which is indicated
by the Company to
be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule), in
either case, on the Mortgaged Property including all buildings
on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to
the foregoing
securing the Mortgage Note’s original principal balance. The Mortgage and the
Mortgage Note do not contain any evidence of any security interest
or other
interest or right thereto. Such lien is free and clear of all
adverse claims,
liens and encumbrances having priority over the first lien of
the Mortgage
subject only to (1) the lien of non-delinquent current real property
taxes and
assessments not yet due and payable, (2) covenants, conditions
and restrictions,
rights of way, easements and other matters of the public record
as of the date
of recording which are acceptable to mortgage lending institutions
generally and
either (A) which are referred to or otherwise considered in the
appraisal made
for the originator of the Mortgage Loan, or (B) which do not
adversely affect
the appraised value of the Mortgaged Property as set forth in
such appraisal,
(3) other matters to which like properties are commonly subject
which do not
materially interfere with the benefits of the security intended
to be provided
by the Mortgage or the use, enjoyment, value or marketability
of the related
Mortgaged Property and (4) with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien Mortgage Loan (as reflected
on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security
agreement,
chattel mortgage or equivalent document related to and delivered
in connection
with the Mortgage Loan establishes and creates a valid, subsisting,
enforceable
and perfected (A) first lien and first priority security interest
with respect
to each Mortgage Loan which is indicated by the Company to be
a First Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien
and second priority
security interest with respect to each Mortgage Loan which is
indicated by the
Company to be a Second Lien Mortgage Loan (as reflected on the
Mortgage Loan
Schedule), in either case, on the property described therein,
and the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine
and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy,
insolvency,
moratorium, reorganization and other laws of general application
affecting the
rights of creditors and by general equitable principles and the
Company has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage
had the legal
capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have
been duly and
properly executed by such parties. No fraud, error, omission,
misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan
has taken place
on the part of the Company or the Mortgagor, or, on the part
of any other party
involved in the origination or servicing of the Mortgage Loan.
The proceeds of
the Mortgage Loan have been fully disbursed and there is no requirement
for
future advances thereunder, and any and all requirements as to
completion of any
on-site or off-site improvements and as to disbursements of any
escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in
making or closing the Mortgage Loan and the recording of the
Mortgage were paid
or are in the process of being paid, and the Mortgagor is not
entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage
Loan and the
indebtedness evidenced by the Mortgage Note, and upon recordation
the Purchaser
or its designee will be the owner of record of the Mortgage and
the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage
Loan to the
Purchaser, the Company will retain the Servicing File in trust
for the Purchaser
only for the purpose of interim servicing and supervising the
interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including
the Mortgage
Note and the Mortgage, were not subject to an assignment or pledge,
and the
Company had good and marketable title to and was the sole owner
thereof and had
full right to transfer and sell the Mortgage Loan to the Purchaser
free and
clear of any encumbrance, equity, lien, pledge, charge, claim
or security
interest and has the full right and authority subject to no interest
or
participation of, or agreement with, any other party, to sell
and assign the
Mortgage Loan pursuant to this Agreement and following the sale
of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear
of any
encumbrance, equity, participation interest, lien, pledge, charge,
claim or
security interest. The Company intends to relinquish all rights
to possess,
control and monitor the Mortgage Loan, except for the purposes
of interim
servicing the Mortgage Loan as set forth in this Agreement. Either
the Mortgagor
is a natural person or the Mortgagor is an inter-vivos trust
acceptable to
▇▇▇▇▇▇ Mae. With respect to each inter-vivos trust, holding title
to the
Mortgaged Property in such trust will not diminish any rights
as a creditor
including the right to full title to the Mortgaged Property in
the event
foreclosure proceedings are initiated;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and qualified
to do
business in the jurisdiction where the Mortgaged Property is
located, insuring
(subject to the exceptions contained in (j)(1), (2) and (3) above
and, with
respect to each Mortgage Loan which is indicated by the Company
to be a Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule)
clause (4)) the
Company, its successors and assigns, as to the first (or, where
applicable,
second) priority lien of the Mortgage in the original principal
amount of the
Mortgage Loan and, with respect to each Adjustable Rate Mortgage
Loan, against
any loss by reason of the invalidity or unenforceability of the
lien resulting
from the provisions of the Mortgage providing for adjustment
in the Mortgage
Interest Rate and Monthly Payment. Additionally, such policy
affirmatively
insures ingress and egress to and from the Mortgaged Property.
Where required by
applicable state law or regulation, the Mortgagor has been given
the opportunity
to choose the carrier of the required mortgage title insurance.
The Company, its
successors and assigns, are the sole insureds of such lender’s title insurance
policy, such title insurance policy has been duly and validly
endorsed to the
Purchaser or the assignment to the Purchaser of the Company’s interest therein
does not require the consent of or notification to the insurer
and such lender’s
title insurance policy is in full force and effect and will be
in full force and
effect upon the consummation of the transactions contemplated
by this Agreement
and the related Confirmation. No claims have been made under
such lender’s title
insurance policy, and no prior holder of the related Mortgage,
including the
Company, has done, by act or omission, anything which would impair
the coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing
under the
Mortgage or the related Mortgage Note and no event which, with
the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default,
breach,
violation or event permitting acceleration. With respect to each
Mortgage Loan
which is indicated by the Company to be a Second Lien Mortgage
Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is
in full force and
effect, (ii) there is no default, breach, violation or event
of acceleration
existing under such First Lien mortgage or the related mortgage
note, (iii)
either no consent for the Mortgage Loan is required by the holder
of the First
Lien or such consent has been obtained and is contained in the
Mortgage File,
(iv) to the best of Company’s knowledge, no event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration
thereunder, and
either (A) the First Lien mortgage contains a provision which
allows or (B)
applicable law requires, the mortgagee under the Second Lien
Mortgage Loan to
receive notice of, and affords such mortgagee an opportunity
to cure any default
by payment in full or otherwise under the First Lien mortgage,
and (v) such
Second Lien Mortgage Loan is secured by a one- to four-family
residence that is
the principal residence of the Mortgagor;
(o) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could
give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in
determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and
building restriction lines of the Mortgaged Property (and wholly
within the
project with respect to a condominium unit) and no improvements
on adjoining
properties encroach upon the Mortgaged Property except those
which are insured
against by the title insurance policy referred to in clause (m)
above and all
improvements on the property comply with all applicable zoning
and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage
Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage
Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on
forms generally
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Company is currently
selling loans
to ▇▇▇▇▇▇ Mae and/or ▇▇▇▇▇▇▇ Mac which are the same document
forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage
Loan bears
interest at the Mortgage Interest Rate set forth in the related
Mortgage Loan
Schedule, and Monthly Payments under the Mortgage Note are due
and payable on
the first day of each month. The Mortgage contains the usual
and enforceable
provisions of the originator at the time of origination for the
acceleration of
the payment of the unpaid principal amount of the Mortgage Loan
if the related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(r) The
Mortgaged Property is not subject to any material damage by waste,
fire,
earthquake, windstorm, flood or other casualty, and is in good
repair. At
origination of the Mortgage Loan there was, and there currently
is, no
proceeding pending for the total or partial condemnation of the
Mortgaged
Property. There have not been any condemnation proceedings with
respect to the
Mortgaged Property and there are no such proceedings scheduled
to commence at a
future date;
(s) The
related Mortgage contains customary and enforceable provisions
such as to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided thereby.
There is no homestead or other exemption available to the Mortgagor
which would
interfere with the right to sell the Mortgaged Property at a
trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and
duly qualified
if required under applicable law to act as such, has been properly
designated
and currently so serves and is named in the Mortgage, and no
fees or expenses
are or will become payable by the Purchaser to the trustee under
the deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged
Property which, (a)
with respect to First Lien Mortgage Loans, was on appraisal form
1004 or form
2055 with an interior inspection, or (b) with respect to Second
Lien Mortgage
Loans, was on appraisal form 704, 2065 or 2055 with an exterior
only inspection,
and (c) with respect to (a) or (b) above, was signed prior to
the final approval
of the mortgage loan application by a Qualified Appraiser, who
had no interest,
direct or indirect, in the Mortgaged Property or in any loan
made on the
security thereof, and whose compensation is not affected by the
approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy
the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and Title XI of
FIRREA and the
regulations promulgated thereunder, all as in effect on the date
the Mortgage
Loan was originated. The appraisal is in a form acceptable to
▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether
as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in
which they held
and disposed of such interest, were) (A) in compliance with any
and all
applicable licensing requirements of the laws of the state wherein
the Mortgaged
Property is located, and (B) (1) organized under the laws of
such state, or (2)
qualified to do business in such state, or (3) federal savings
and loan
associations or national banks or a Federal Home Loan Bank or
savings bank
having principal offices in such state, or (4) not doing business
in such
state;
(w) The
related Mortgage Note is not and has not been secured by any
collateral except
the lien of the corresponding Mortgage and the security interest
of any
applicable security agreement or chattel mortgage referred to
in (j) above and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no
Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent
and the
Company has no knowledge of any circumstances or condition with
respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors
to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become
delinquent, or materially adversely affect the value or marketability
of the
Mortgage Loan;
(aa) Principal
payments on the Mortgage Loan commenced no more than sixty (60)
days after the
funds were disbursed in connection with the Mortgage Loan. The
Mortgage Loans
have an original term to maturity of not more than 30 years,
with interest
payable in arrears on the first day of each month. Each Mortgage
Note requires a
monthly payment which is sufficient to fully amortize the original
principal
balance over the original term thereof (other than during the
interest-only
period with respect to a Mortgage Loan identified on the related
Mortgage Loan
Schedule as an interest-only Mortgage Loan) and to pay interest
at the related
Mortgage Interest Rate. With respect to each Mortgage Loan identified
on the
Mortgage Loan Schedule as an interest-only Mortgage Loan, the
interest-only
period does not exceed ten (10) years (or such lesser period
specified on the
Mortgage Loan Schedule) and following the expiration of such
interest-only
period, the remaining Monthly Payments shall be sufficient to
fully amortize the
original principal balance over the remaining term of the Mortgage
Loan. No
Mortgage Loan contains terms or provisions which would result
in negative
amortization. No Mortgage Loan provides for the capitalization
or forbearance of
interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance
policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment
of Mortgage is
in recordable form and is acceptable for recording under the
laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the
related Mortgage
Loan Schedule and consists of a single parcel of real property
with a detached
single family residence erected thereon, or a townhouse, or a
two-to four-family
dwelling, or an individual condominium unit in a condominium
project, or an
individual unit in a planned unit development or a de minimis
planned unit
development, provided, however, that no residence or dwelling
is a single parcel
of real property with a cooperative housing corporation erected
thereon, or a
mobile home. As of the date of origination, no portion of the
Mortgaged Property
was used for commercial purposes, and since the date or origination
no portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the
Mortgage Loans are
subject to a Prepayment Penalty. For any Mortgage Loan originated
prior to
October 1, 2002 that is subject to a Prepayment Penalty, such
prepayment penalty
does not extend beyond five years after the date of origination.
For any
Mortgage Loan originated on or following October 1, 2002 that
is subject to a
Prepayment Penalty, such prepayment penalty does not extend beyond
three years
after the date of origination. Any such prepayment penalty is
permissible and
enforceable in accordance with its terms upon the Mortgagor’s full and voluntary
principal prepayment under applicable law. With respect to any
Mortgage Loan
that contains a provision permitting imposition of a penalty
upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit
to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such
a prepayment
penalty; (ii) the Mortgage Loan’s originator had a written policy of offering
the Mortgagor, or requiring third-party brokers to offer the
Mortgagor, the
option of obtaining a Mortgage Loan that did not require payment
of such a
prepayment penalty and the Mortgagor was offer such a product
by the Mortgage
Loan’s originator; (iii) the prepayment penalty was adequately disclosed
to the
Mortgagor in the loan documents pursuant to applicable state
and federal law;
and (iv) such prepayment penalty shall not be imposed in any
instance where the
Mortgage Loan is accelerated or paid off in connection with the
workout of a
delinquent mortgage or due to the Mortgagor’s default, notwithstanding that the
terms of the Mortgage Loan or state or federal law might permit
the imposition
of such a prepayment penalty;
(ff) The
Mortgaged Property is lawfully occupied under applicable law,
and all
inspections, licenses and certificates required to be made or
issued with
respect to all occupied portions of the Mortgaged Property and,
with respect to
the use and occupancy of the same, including but not limited
to certificates of
occupancy and fire underwriting certificates, have been made
or obtained from
the appropriate authorities;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium
or planned unit
development project meets the eligibility requirements of ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇
Mac;
(hh)
There is
no pending action or proceeding directly involving the Mortgaged
Property in
which compliance with any environmental law, rule or regulation
is an issue;
there is no violation of any environmental law, rule or regulation
with respect
to the Mortgaged Property; and nothing further remains to be
done to satisfy in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(ii) The
Mortgagor has not notified the Company requesting relief under
the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act,
and
the Company has no knowledge of any relief requested or allowed
to the Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or
rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related
Closing Date
which has resulted or will result in an exclusion from, denial
of, or defense to
coverage under any insurance policy related to a Mortgage Loan
(including,
without limitation, any exclusions, denials or defenses which
would limit or
reduce the availability of the timely payment of the full amount
of the loss
otherwise due thereunder to the insured) whether arising out
of actions,
representations, errors, omissions, negligence, or fraud, or
for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association,
a savings bank,
a commercial bank, a credit union, an insurance company, or similar
institution
which is supervised and examined by a federal or state authority,
or by a
mortgagee approved by the Secretary of HUD pursuant to Sections
203 and 211 of
the National Housing Act;
(mm) No
Mortgaged Property is subject to a ground lease;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly assessed to the Mortgagor and
no claims will
arise as to broker fees that are double charged and for which
the Mortgagor
would be entitled to reimbursement;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been
delivered to the
Purchaser certifying that the original Mortgage Note has been
lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently
in default, the
enforcement of such Mortgage Loan will not be materially adversely
affected by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the
Assignment of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit
A-1 and
required to be delivered on the related Closing Date have been
delivered to the
Purchaser or its designee all in compliance with the specific
requirements of
this Agreement. With respect to each Mortgage Loan, the Company
is in possession
of a complete Mortgage File and Servicing File except for such
documents as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor
is true,
accurate and complete and does not contain any statement that
is or will be
inaccurate or misleading in any material respect;
(ss)
To the
best of the Company’s knowledge, there does not exist on the related Mortgaged
Property any hazardous substances, hazardous wastes or solid
wastes, as such
terms are defined in the Comprehensive Environmental Response
Compensation and
Liability Act, the Resource Conservation and Recovery Act of
1976, or other
federal, state or local environmental legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination
of more than
95% and no Mortgage Loan had a Combined Loan-to-Value Ratio at
the time of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of
the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
law, including any predatory or abusive lending laws (or a similarly
classified
loan using different terminology under a law imposing heightened
regulatory
scrutiny or additional legal liability for a residential mortgage
loan having
high interest rates, points and/or fees), (c) a High Cost Loan
or Covered Loan,
as applicable (as such terms are defined in the current version
of Standard
& Poor’s LEVELS® Glossary, Appendix E) or (d) in violation of any state law
or ordinance comparable to HOEPA. No Mortgage Loan (including
purchase money
loans or refinance transactions) has an “annual percentage rate” or “total
points and fees” payable by the Mortgagor (as each such term is defined under
HOEPA) that equal or exceed the applicable thresholds defined
under HOEPA
(Section 32 of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i)
and
(ii));
(vv) No
Mortgagor was required to purchase any credit life, disability,
accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit.
No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection
with the
origination of the Mortgage Loan; No proceeds from any Mortgage
Loan were used
to purchase or finance single-premium insurance policies or debt
cancellation
agreements as part of the origination of or as a condition to
closing, such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related
Closing Date have
been consolidated with the outstanding principal amount secured
by the Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate
and single repayment term. The lien of the Mortgage securing
the consolidated
principal amount is expressly insured as having (A) first lien
priority with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien priority
with respect to each Mortgage Loan which is indicated by the
Company to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Data Transmission),
in either case, by a title insurance policy, an endorsement to
the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal
amount does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day
year consisting of
twelve 30-day months;
(yy) No
Mortgage Loan is a Balloon Mortgage Loan;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by
MERS and such MIN
is accurately provided on the related Mortgage Loan Schedule.
The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received
any notice of
liens or legal actions with respect to such Mortgage Loan and
no such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing shall
be legally
classified as real property, is permanently affixed to a foundation
and must
assume the characteristics of site-built housing and must otherwise
conform to
the requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, including without
limitation the
requirement that such manufactured housing will be the principal
residence of
the Mortgagor upon origination of the Mortgage Loan;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately
furnished
complete information (e.g., favorable and unfavorable) on the
related borrower
credit files to Equifax, Experian and Trans Union Credit Information
Company
(three of the credit repositories), in accordance with the Fair
Credit Reporting
Act and its implementing regulations, on a monthly basis and
the Company will
fully furnish, in accordance with the Fair Credit Reporting Act
and its
implementing regulations, accurate and complete information (e.g.,
favorable and
unfavorable) on its borrower credit files to Equifax, Experian,
and Trans Union
Credit Information Company (three of the credit repositories),
on a monthly
basis;
(ddd) The
Company has complied with all applicable anti-money laundering
laws and
regulations, including without limitation the USA Patriot Act
of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program
as required
by the Anti-Money Laundering Laws, has conducted the requisite
due diligence in
connection with the origination of each Mortgage Loan for purposes
of the
Anti-Money Laundering Laws, including with respect to the legitimacy
of the
applicable Mortgagor and the origin of the assets used by the
said Mortgagor to
purchase the property in question, and maintains, and will maintain,
sufficient
information to identify the applicable Mortgagor for purposes
of the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification
pursuant to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department
of the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions
of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage
Loan the related
first lien does not contain any term that could result in negative
amortization;
(fff) No
predatory or deceptive lending practices, including but not limited
to, the
extension of credit to the applicable Mortgagor without regard
for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to
said Mortgagor which has no apparent benefit to said Mortgagor,
were employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending
eligibility for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied
manufactured
home located in the State of Georgia was originated (or modified)
on or after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgagor was encouraged or required to select a Mortgage Loan
product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as,
without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing
through the
Mortgage Loan originator’s higher priced sup prime lending channel was directed
towards or offered the Mortgage Loan’s originator standard mortgage line if the
Borrower was able to qualify for one of the standard products.
If, at the time
of loan application, the Mortgagor may have qualified for a lower
cost credit
product then offered by any mortgage lending affiliate of the
Mortgage Loan’s
originator, the Mortgage Loan’s originator referred the Mortgagor’s application
to such affiliate for underwriting consideration;
(iii) The
methodology used in underwriting the extension of credit for
each Mortgage Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension
of credit. The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based
on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of the origination the Mortgagor had the ability
to make timely
payments on the Mortgage Loan;
(jjj) All
points, fees and charges (including finance charges) and whether
or not
financed, assessed, collected or to be collected in connection
with the
origination and servicing of each Mortgage Loan have been disclosed
in writing
to the Mortgagor in accordance with applicable state and federal
law and
regulation;
(kkk) All
Points and Fees related to each Loan were disclosed in writing
to the Mortgagor
in accordance with applicable state and federal law and regulation.
Except as
otherwise disclosed in the Mortgage Loan Schedule, no Mortgagor
was charged
Points and Fees (whether or not financed) in an amount that exceeds
the greater
of (1) 5% of the principal amount of such Mortgage Loan or (2)
$1,000;
(lll) The
Company will transmit full-file credit reporting data for each
Mortgage Loan
pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and for each
Mortgage Loan,
Company agrees it shall report one of the following statuses
each month as
follows: new origination, current, delinquent (30-, 60-, 90-days,
etc.),
foreclosed, or charged-off;
(mmm) Each
Mortgage Loan is eligible for sale in the secondary mortgage
market or for
securitization without unreasonable credit enhancement;
(nnn) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase
money Home Loan,
(2) purchase money Covered Loan (with
respect to Mortgage Loans which were originated between November
26, 2003 and
July 7, 2004),
or (3)
a rate/term refinance Home Loan;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made or caused to be made any payment in the
nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the
Commonwealth of
Massachusetts was made to pay off or refinance an existing loan
or other debt of
the related borrower (as the term "borrower" is defined in the
regulations
promulgated by the Massachusetts Secretary of State in connection
with the
Massachusetts General Laws Chapter 183, Section 28C) unless (a)
the related
Mortgage Interest Rate (that would be effective once the introductory
rate
expires, with respect to Adjustable Rate Mortgage Loans) did
or would not exceed
by more than 2.50% the yield on United States Treasury securities
having
comparable periods of maturity to the maturity of the related
Mortgage Loan as
of the fifteenth day of the month immediately preceding the month
in which the
application for the extension of credit was received by the related
lender or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage
Note provides that
the related Mortgage Interest Rate may not exceed at any time
the Prime rate
index as published in the Wall
Street Journal
plus a
margin of one percent;
(rrr) [Reserved];
and
(sss) With
respect to each Mortgage Loan, the related residential dwelling
is not a
manufactured housing unit.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006,
(“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
Decision One Mortgage Company, LLC (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other
valuable
consideration the receipt and sufficiency of which hereby are
acknowledged, and
of the mutual covenants herein contained, the parties hereto
hereby agree as
follows:
I.
Assignment and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee
(x) all of the right, title and interest of the Assignor, as
purchaser, in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated
as of August
1, 2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement
relates to the
Mortgage Loans and (y) other than as provided below with respect
to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee
hereunder any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase
Agreement
which are not the mortgage loans set forth on the Mortgage Loan
Schedule and are
not the subject of this Agreement.
II.
Recognition of the Company
From
and
after the date hereof, the Company shall and does hereby recognize
that the
Assignee will transfer the Mortgage Loans and assign its rights
under the
Purchase Agreement (solely to the extent set forth herein) and
this Agreement to
MASTR Asset-Backed Securities Trust 2006-HE4 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 2006
(the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust
administrator
(including its successors in interest and any successor servicers
under the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), ▇▇▇▇▇ Fargo
Bank, N.A. and Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing as
servicers (the “Servicers”) and U.S. Bank National Association, as trustee
(including its successors in interest and any successor trustees
under the
Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the
date hereof (i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer
and the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage
Loans, under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches
of
representations and warranties set forth in the Purchase Agreement,
and shall be
entitled to enforce all of the obligations of the Company thereunder
insofar as
they relate to the Mortgage Loans, and (iii) all references to the
Purchaser (insofar as they relate to the rights, title and interest
and, with
respect to obligations of the Purchaser, only insofar as they
relate to the
enforcement of the representations, warranties and covenants
of the Company) or
the Custodian under the Purchase Agreement insofar as they relate
to the
Mortgage Loans, shall be deemed to refer to the Trust (including
the Trustee,
the Trust Administrator, the Master Servicer and the Servicer
acting on the
Trust’s behalf). Neither the Company nor the Assignor shall amend or
agree to
amend, modify, waiver, or otherwise alter any of the terms or
provisions of the
Purchase Agreement which amendment, modification, waiver or other
alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without
the prior
written consent of the Trustee.
III.
Representations and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee
and the Trust as
of the date hereof that:
(a) Attached
hereto as Exhibit
B
is a
true and accurate copy of the representations and warranties
set forth in
Sections 3.01 and 3.02 of the Purchase Agreement, which Purchase
Agreement is in
full force and effect as of the date hereof and the provisions
of which have not
been waived, amended or modified in any respect, nor has any
notice of
termination been given thereunder;
(b) The
Company is duly organized, validly existing and in good standing
under the laws
of the jurisdiction of its incorporation;
(c) The
Company has full power and authority to execute, deliver and
perform its
obligations under this Agreement and has full power and authority
to perform its
obligations under the Purchase Agreement. The execution by the
Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now
a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Company or its property is subject.
The
execution, delivery and performance by the Company of this Agreement
have been
duly authorized by all necessary corporate action on part of
the Company. This
Agreement has been duly executed and delivered by the Company,
and, upon the due
authorization, execution and delivery by the Assignor and the
Assignee, will
constitute the valid and legally binding obligation of the Company,
enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium
or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is considered
in a proceeding in equity or at law;
(d) No
consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be
obtained or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(e) There
is
no action, suit, proceeding or investigation pending or threatened
against the
Company, before any court, administrative agency or other tribunal,
which would
draw into question the validity of this Agreement or the Purchase
Agreement, or
which, either in any one instance or in the aggregate, would
result in any
material adverse change in the ability of the Company to perform
its obligations
under this Agreement or the Purchase Agreement, and the Company
is
solvent.
2. Pursuant
to Section 8.01(b)(iii) of the Purchase Agreement, the Company
hereby represents
and warrants, for the benefit of the Assignor, the Assignee and
the Trust, that
the representations and warranties set forth in Sections 3.01
and 3.02 of the
Purchase Agreement (set forth on Schedule 1 hereto), are true
and correct as of
the date hereof, as if such representations and warranties were
made on such
date.
3. The
Assignor hereby makes the following representations and warranties
as of the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material
respects with
applicable local, state, and federal laws, including, but not
limited to, all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable
predatory and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E); and
(d) No
Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is
governed by the Georgia Fair Lending Act;
IV.
Remedies for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available
to the
Assignor, the Assignee and the Trust (including the Trustee and
the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth
in Section 3 hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement
as if they
were set forth herein (including without limitation the repurchase
and indemnity
obligations set forth therein). It is understood by the parties
hereto that a
breach of the representations and warranties made in Sections
3.02 (h), (n),
(ee), (pp), (uu), (vv), (ccc), (ggg), (hhh), (iii), (jjj), (ooo),
(rrr) or (sss)
of the Purchase Agreement shall be deemed to materially and adversely
affect the
value of the related mortgage loan or the interests of the Trust
in the related
mortgage loans.
The
Company
shall
repurchase any Mortgage Loan sold to the
Assignor
for
which the first monthly payment due in September 2006 or October
2006 becomes 30
days past due (each, a “Delinquent Loan”) or, in lieu of repurchase of a
Delinquent Loan by the
Company, the Assignor and the Company
may
agree to a substitution of another Mortgage Loan for any Delinquent
Loan. Any
such substituted Mortgage Loan will be subject to the
Assignor’s
acceptability. Such repurchase will be made at the
Repurchase Price (as defined in the Purchase Agreement).
The
Assignor hereby acknowledges and agrees that the remedies available
to the
Assignee and the Trust (including the Trustee and the Master
Servicer acting on
the Trust’s behalf) in connection with any breach of the representations
and
warranties made by the Assignor set forth in Section 3 hereof
shall be as set
forth in Section 2.03 of the Pooling and Servicing Agreement
as if they were set
forth herein (including without limitation the repurchase obligations
set forth
therein). The
Assignor hereby acknowledges and agrees that a breach of any
one of the
representations set forth in Section 5 above will be deemed to
materially
adversely affect the interests of the certificateholders and
shall require a
repurchase of the affected Mortgage Loan(s).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation
of the
Company with respect to any breach of representation and warranty
made by the
Company regarding the Mortgage Loans.
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the
State of New
York, without regard to conflicts of law principles, and the
obligations, rights
and remedies of the parties hereunder shall be determined in
accordance with
such laws.
No
term
or provision of this Agreement may be waived or modified unless
such waiver or
modification is in writing and signed by the party against whom
such waiver or
modification is sought to be enforced, with the prior written
consent of the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and
assigns of the
parties hereto and (ii) the Trust (including the Trustee, the
Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor,
Assignee or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to
the extent
assigned hereunder) by Assignor to Assignee and by Assignee to
the Trust and
nothing contained herein shall supersede or amend the terms of
the Purchase
Agreement.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
In
the
event that any provision of this Agreement conflicts with any
provision of the
Purchase Agreement with respect to the Mortgage Loans, the terms
of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto)
but not defined in
this Agreement shall have the meanings given to such terms in
the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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Title:
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DECISION
ONE MORTGAGE COMPANY, LLC
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EXHIBIT
A
Mortgage
Loan Schedule
Available
Upon Request
SCHEDULE
1
Capitalized
terms used herein but not defined in this Schedule 1 shall have
the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that
as of each
Closing Date and as of each Servicing Transfer Date or as of
such date
specifically provided herein:
(a) The
Company is a limited liability company duly organized and validly
existing under
the laws of the State of North Carolina. The Company has all
licenses necessary
to carry out its business as now being conducted, and is licensed
and qualified
to transact business in and is in good standing under the laws
of each state in
which any Mortgaged Property is located or is otherwise exempt
under applicable
law from such licensing or qualification or is otherwise not
required under
applicable law to effect such licensing or qualification and
no demand for such
licensing or qualification has been made upon the Company by
any such state, and
in any event the Company is in compliance with the laws of any
such state to the
extent necessary to ensure the enforceability of each Mortgage
Loan and the
interim servicing of the Mortgage Loans in accordance with the
terms of this
Agreement. No licenses or approvals obtained by the Company have
been suspended
or revoked by any court, administrative agency, arbitrator or
governmental body
and no proceedings are pending which might result in such suspension
or
revocation;
(b) The
Company has the full power and authority and legal right to hold,
transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver
and perform, and to enter into and consummate all transactions
contemplated by
this Agreement and the related Confirmation and to conduct its
business as
presently conducted; the Company has duly authorized the execution,
delivery and
performance of this Agreement and any agreements contemplated
hereby, has duly
executed and delivered this Agreement and the related Confirmation,
and any
agreements contemplated hereby, and this Agreement and the related
Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements
contemplated
hereby, constitute the legal, valid and binding obligations of
the Company,
enforceable against it in accordance with their respective terms,
except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles
affecting the
enforceability of the rights of creditors; and all requisite
corporate action
has been taken by the Company to make this Agreement, the related
Confirmation
and all agreements contemplated hereby valid and binding upon
the Company in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the
transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and
conditions of this Agreement and the related Confirmation will
conflict with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any
of the terms,
conditions or provisions of any legal restriction or any agreement
or instrument
to which the Company is now a party or by which it is bound,
or constitute a
default or result in an acceleration under any of the foregoing,
or result in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have
a material
adverse effect on the sale of the Mortgage Loans, the execution,
delivery,
performance or enforceability of this Agreement or the related
Confirmation, or
which is reasonably likely to have a material adverse effect
on the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance
by the Company of
or compliance by the Company with this Agreement and the related
Confirmation,
except for consents, approvals, authorizations and orders which
have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement
and the related
Confirmation are in the ordinary course of business of the Company,
and the
transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by
the Company pursuant to this Agreement and the related Confirmation
are not
subject to bulk transfer or any similar statutory provisions
in effect in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect
to each Mortgage
Note and Mortgage have been legal and in accordance with applicable
laws and
regulations, and in all material respects in accordance with
Accepted Servicing
Practices. The Company further represents and warrants that:
with respect to
escrow deposits and payments that the Company is entitled to
collect, all such
payments are in the possession of, or under the control of, the
Company or its
delegate, and there exist no deficiencies in connection therewith
for which
customary arrangements for repayment thereof have not been made;
all escrow
payments have been collected and are being maintained in full
compliance with
applicable state and federal law and the provisions of the related
Mortgage Note
and Mortgage; as to any Mortgage Loan that is the subject of
an escrow, escrow
of funds is not prohibited by applicable law and has been established
in an
amount sufficient to pay for every escrowed item that remains
unpaid and has
been assessed but is not yet due and payable; no escrow deposits
or other
charges or payments due under the Mortgage Note have been capitalized
under any
Mortgage or the related Mortgage Note; all Mortgage Interest
Rate adjustments
have been made in strict compliance with state and federal law
and the terms of
the related Mortgage Note; and any interest required to be paid
pursuant to
state and local law has been properly paid and credited;
(h) The
Company has not used selection procedures that identified the
Mortgage Loans as
being less desirable or valuable than other comparable mortgage
loans in the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the
Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete
set of books
and records for each Mortgage Loan which shall be clearly marked
to reflect the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage
loans for HUD,
with such facilities, procedures and personnel necessary for
the sound servicing
of such mortgage loans. The Company is duly qualified, licensed,
registered and
otherwise authorized under all applicable federal, state and
local laws and
regulations and is in good standing to sell mortgage loans to
and service
mortgage loans and no event has occurred which would make the
Company unable to
comply with eligibility requirements or which would require notification
to HUD;
(k) The
Company does not believe, nor does it have any cause or reason
to believe, that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent
and the sale of
the Mortgage Loans will not cause the Company to become insolvent.
The sale of
the Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared
by, or on
behalf of, the Company pursuant to this Agreement, the related
Confirmation or
in connection with the transactions contemplated hereby, contains
or will
contain any statement that is or will be inaccurate or misleading
in any
material respect. The Company has prudently originated and underwritten
each
Mortgage Loan;
(m) The
consideration received by the Company upon the sale of the Mortgage
Loans
constitutes fair consideration and reasonably equivalent value
for such Mortgage
Loans;
(n) The
Company has delivered to the Initial Purchaser financial statements
as to its
last two complete fiscal years. All such financial statements
fairly present the
pertinent results of operations and changes in financial position
for each of
such periods and the financial position at the end of each such
period of the
Company and its subsidiaries and have been prepared in accordance
with GAAP
consistently applied throughout the periods involved, except
as set forth in the
notes thereto. There has been no change in the business, operations,
financial
condition, properties or assets of the Company since the date
of the Company’s
financial statements that would have a material adverse effect
on its ability to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent
or other person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(p) The
Company is a member of MERS in good standing, and will comply
in all material
respects with the rules and procedures of MERS in connection
with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans
are registered
with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to
each Mortgage
Loan, as of the related Closing Date and as of the related Servicing
Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule,
including any
diskette or other related data tapes sent to the Initial Purchaser,
is complete,
true and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security
interest with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second
lien and second
priority security interest with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien (as reflected on the Mortgage
Loan Schedule),
in either case, in the related Mortgaged Property securing the
related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such
Mortgage Loan have
been made as of the related Closing Date, the Mortgage Loan is
not delinquent in
payment more than 30 days and has not been dishonored; there
are no material
defaults under the terms of the Mortgage Loan; the Company has
not advanced
funds, or induced, solicited or knowingly received any advance
of funds from a
party other than the owner of the Mortgaged Property subject
to the Mortgage,
directly or indirectly, for the payment of any amount required
by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been
delinquent during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer
and municipal
charges, leasehold payments or ground rents which previously
became due and
owing have been paid, or escrow funds have been established in
an amount
sufficient to pay for every such escrowed item which remains
unpaid and which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or
modified in any respect, except by written instruments which
have been recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor
has been
released, in whole or in part, from the terms thereof except
in connection with
an assumption agreement and which assumption agreement is part
of the Mortgage
File and the terms of which are reflected in the related Mortgage
Loan Schedule;
the substance of any such waiver, alteration or modification
has been approved
by the issuer has been approved by the issuer of any related
title insurance
policy, to the extent required by the related policy.
(f) The
Mortgage Note and the Mortgage are not subject to any right of
rescission,
set-off, counterclaim or defense, including, without limitation,
the defense of
usury, nor will the operation of any of the terms of the Mortgage
Note or the
Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any
right of
rescission, set-off, counterclaim or defense, including the defense
of usury,
and no such right of rescission, set-off, counterclaim or defense
has been
asserted with respect thereto; and the Mortgagor was not a debtor
in any state
or federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the
Mortgaged Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ Guides,
against loss
by fire, hazards of extended coverage and such other hazards
as are generally
acceptable to prudent lenders in the secondary mortgage market,
in an amount
representing coverage not less than the lesser of (i) the maximum
insurable
value of the improvements securing such Mortgage Loans, and (ii)
the greater of
(a) either (1) the outstanding principal balance of the Mortgage
Loan with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule) or (2) with
respect to each
Second Lien Mortgage Loan, the sum of the outstanding principal
balance of the
first lien on such Mortgage Loan and the outstanding principal
balance of such
Second Lien Mortgage Loan, and (b) an amount such that the proceeds
thereof
shall be sufficient to prevent the Mortgagor and/or the mortgagee
from becoming
a co-insurer, but in no event greater than the maximum amount
permitted under
applicable law. All such standard hazard policies are in full
force and effect
and on the date of origination contained a standard mortgagee
clause naming the
Company and its successors in interest and assigns as loss payee
and such clause
is still in effect and all premiums due thereon have been paid.
If required by
the Flood Disaster Protection Act of 1973, as amended, the Mortgage
Loan is
covered by a flood insurance policy meeting the requirements
of the current
guidelines of the Federal Insurance Administration which policy
conforms to
▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac requirements, in an amount not less
than the amount
required by the Flood Disaster Protection Act of 1973, as amended.
Such policy
was issued by an insurer acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac guidelines.
The Mortgage obligates the Mortgagor thereunder to maintain all
such insurance
at the Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance
at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Each
Mortgage Loan and, if any, the related prepayment penalty complied
in all
material respects with any and all requirements of any federal,
state or local
law including, without limitation, usury, truth in lending, real
estate
settlement procedures, consumer credit protection, equal credit
opportunity,
fair housing, disclosure, or predatory, fair and abusive lending
laws applicable
to the origination and servicing of loans of a type similar to
the Mortgage
Loans and the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other
than the
subordination of any Second Lien Mortgage Loan to the related
First Lien), in
whole or in part, or rescinded, and the Mortgaged Property has
not been released
from the lien of the Mortgage, in whole or in part nor has any
instrument been
executed that would effect any such release, cancellation, subordination
or
rescission. The Company has not waived the performance by the
Mortgagor of any
action, if the Mortgagor’s failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any
default resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected
(A) first
lien and first priority security interest with respect to each
Mortgage Loan
which is indicated by the Company to be a First Lien (as reflected
on the
Mortgage Loan Schedule), or (B) second lien and second priority
security
interest with respect to each Mortgage Loan which is indicated
by the Company to
be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule), in
either case, on the Mortgaged Property including all buildings
on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to
the foregoing
securing the Mortgage Note’s original principal balance. The Mortgage and the
Mortgage Note do not contain any evidence of any security interest
or other
interest or right thereto. Such lien is free and clear of all
adverse claims,
liens and encumbrances having priority over the first lien of
the Mortgage
subject only to (1) the lien of non-delinquent current real property
taxes and
assessments not yet due and payable, (2) covenants, conditions
and restrictions,
rights of way, easements and other matters of the public record
as of the date
of recording which are acceptable to mortgage lending institutions
generally and
either (A) which are referred to or otherwise considered in the
appraisal made
for the originator of the Mortgage Loan, or (B) which do not
adversely affect
the appraised value of the Mortgaged Property as set forth in
such appraisal,
(3) other matters to which like properties are commonly subject
which do not
materially interfere with the benefits of the security intended
to be provided
by the Mortgage or the use, enjoyment, value or marketability
of the related
Mortgaged Property and (4) with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien Mortgage Loan (as reflected
on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security
agreement,
chattel mortgage or equivalent document related to and delivered
in connection
with the Mortgage Loan establishes and creates a valid, subsisting,
enforceable
and perfected (A) first lien and first priority security interest
with respect
to each Mortgage Loan which is indicated by the Company to be
a First Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien
and second priority
security interest with respect to each Mortgage Loan which is
indicated by the
Company to be a Second Lien Mortgage Loan (as reflected on the
Mortgage Loan
Schedule), in either case, on the property described therein,
and the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine
and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy,
insolvency,
moratorium, reorganization and other laws of general application
affecting the
rights of creditors and by general equitable principles and the
Company has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage
had the legal
capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have
been duly and
properly executed by such parties. No fraud, error, omission,
misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan
has taken place
on the part of the Company or the Mortgagor, or, on the part
of any other party
involved in the origination or servicing of the Mortgage Loan.
The proceeds of
the Mortgage Loan have been fully disbursed and there is no requirement
for
future advances thereunder, and any and all requirements as to
completion of any
on-site or off-site improvements and as to disbursements of any
escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in
making or closing the Mortgage Loan and the recording of the
Mortgage were paid
or are in the process of being paid, and the Mortgagor is not
entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage
Loan and the
indebtedness evidenced by the Mortgage Note, and upon recordation
the Purchaser
or its designee will be the owner of record of the Mortgage and
the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage
Loan to the
Purchaser, the Company will retain the Servicing File in trust
for the Purchaser
only for the purpose of interim servicing and supervising the
interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including
the Mortgage
Note and the Mortgage, were not subject to an assignment or pledge,
and the
Company had good and marketable title to and was the sole owner
thereof and had
full right to transfer and sell the Mortgage Loan to the Purchaser
free and
clear of any encumbrance, equity, lien, pledge, charge, claim
or security
interest and has the full right and authority subject to no interest
or
participation of, or agreement with, any other party, to sell
and assign the
Mortgage Loan pursuant to this Agreement and following the sale
of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear
of any
encumbrance, equity, participation interest, lien, pledge, charge,
claim or
security interest. The Company intends to relinquish all rights
to possess,
control and monitor the Mortgage Loan, except for the purposes
of interim
servicing the Mortgage Loan as set forth in this Agreement. Either
the Mortgagor
is a natural person or the Mortgagor is an inter-vivos trust
acceptable to
▇▇▇▇▇▇ Mae. With respect to each inter-vivos trust, holding title
to the
Mortgaged Property in such trust will not diminish any rights
as a creditor
including the right to full title to the Mortgaged Property in
the event
foreclosure proceedings are initiated;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and qualified
to do
business in the jurisdiction where the Mortgaged Property is
located, insuring
(subject to the exceptions contained in (j)(1), (2) and (3) above
and, with
respect to each Mortgage Loan which is indicated by the Company
to be a Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule)
clause (4)) the
Company, its successors and assigns, as to the first (or, where
applicable,
second) priority lien of the Mortgage in the original principal
amount of the
Mortgage Loan and, with respect to each Adjustable Rate Mortgage
Loan, against
any loss by reason of the invalidity or unenforceability of the
lien resulting
from the provisions of the Mortgage providing for adjustment
in the Mortgage
Interest Rate and Monthly Payment. Additionally, such policy
affirmatively
insures ingress and egress to and from the Mortgaged Property.
Where required by
applicable state law or regulation, the Mortgagor has been given
the opportunity
to choose the carrier of the required mortgage title insurance.
The Company, its
successors and assigns, are the sole insureds of such lender’s title insurance
policy, such title insurance policy has been duly and validly
endorsed to the
Purchaser or the assignment to the Purchaser of the Company’s interest therein
does not require the consent of or notification to the insurer
and such lender’s
title insurance policy is in full force and effect and will be
in full force and
effect upon the consummation of the transactions contemplated
by this Agreement
and the related Confirmation. No claims have been made under
such lender’s title
insurance policy, and no prior holder of the related Mortgage,
including the
Company, has done, by act or omission, anything which would impair
the coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing
under the
Mortgage or the related Mortgage Note and no event which, with
the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default,
breach,
violation or event permitting acceleration. With respect to each
Mortgage Loan
which is indicated by the Company to be a Second Lien Mortgage
Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is
in full force and
effect, (ii) there is no default, breach, violation or event
of acceleration
existing under such First Lien mortgage or the related mortgage
note, (iii)
either no consent for the Mortgage Loan is required by the holder
of the First
Lien or such consent has been obtained and is contained in the
Mortgage File,
(iv) to the best of Company’s knowledge, no event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration
thereunder, and
either (A) the First Lien mortgage contains a provision which
allows or (B)
applicable law requires, the mortgagee under the Second Lien
Mortgage Loan to
receive notice of, and affords such mortgagee an opportunity
to cure any default
by payment in full or otherwise under the First Lien mortgage,
and (v) such
Second Lien Mortgage Loan is secured by a one- to four-family
residence that is
the principal residence of the Mortgagor;
(o) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could
give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in
determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and
building restriction lines of the Mortgaged Property (and wholly
within the
project with respect to a condominium unit) and no improvements
on adjoining
properties encroach upon the Mortgaged Property except those
which are insured
against by the title insurance policy referred to in clause (m)
above and all
improvements on the property comply with all applicable zoning
and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage
Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage
Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on
forms generally
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Company is currently
selling loans
to ▇▇▇▇▇▇ Mae and/or ▇▇▇▇▇▇▇ Mac which are the same document
forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage
Loan bears
interest at the Mortgage Interest Rate set forth in the related
Mortgage Loan
Schedule, and Monthly Payments under the Mortgage Note are due
and payable on
the first day of each month. The Mortgage contains the usual
and enforceable
provisions of the originator at the time of origination for the
acceleration of
the payment of the unpaid principal amount of the Mortgage Loan
if the related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(r) The
Mortgaged Property is not subject to any material damage by waste,
fire,
earthquake, windstorm, flood or other casualty, and is in good
repair. At
origination of the Mortgage Loan there was, and there currently
is, no
proceeding pending for the total or partial condemnation of the
Mortgaged
Property. There have not been any condemnation proceedings with
respect to the
Mortgaged Property and there are no such proceedings scheduled
to commence at a
future date;
(s) The
related Mortgage contains customary and enforceable provisions
such as to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided thereby.
There is no homestead or other exemption available to the Mortgagor
which would
interfere with the right to sell the Mortgaged Property at a
trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and
duly qualified
if required under applicable law to act as such, has been properly
designated
and currently so serves and is named in the Mortgage, and no
fees or expenses
are or will become payable by the Purchaser to the trustee under
the deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged
Property which, (a)
with respect to First Lien Mortgage Loans, was on appraisal form
1004 or form
2055 with an interior inspection, or (b) with respect to Second
Lien Mortgage
Loans, was on appraisal form 704, 2065 or 2055 with an exterior
only inspection,
and (c) with respect to (a) or (b) above, was signed prior to
the final approval
of the mortgage loan application by a Qualified Appraiser, who
had no interest,
direct or indirect, in the Mortgaged Property or in any loan
made on the
security thereof, and whose compensation is not affected by the
approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy
the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and Title XI of
FIRREA and the
regulations promulgated thereunder, all as in effect on the date
the Mortgage
Loan was originated. The appraisal is in a form acceptable to
▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether
as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in
which they held
and disposed of such interest, were) (A) in compliance with any
and all
applicable licensing requirements of the laws of the state wherein
the Mortgaged
Property is located, and (B) (1) organized under the laws of
such state, or (2)
qualified to do business in such state, or (3) federal savings
and loan
associations or national banks or a Federal Home Loan Bank or
savings bank
having principal offices in such state, or (4) not doing business
in such
state;
(w) The
related Mortgage Note is not and has not been secured by any
collateral except
the lien of the corresponding Mortgage and the security interest
of any
applicable security agreement or chattel mortgage referred to
in (j) above and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no
Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent
and the
Company has no knowledge of any circumstances or condition with
respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors
to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become
delinquent, or materially adversely affect the value or marketability
of the
Mortgage Loan;
(aa) Principal
payments on the Mortgage Loan commenced no more than sixty (60)
days after the
funds were disbursed in connection with the Mortgage Loan. The
Mortgage Loans
have an original term to maturity of not more than 30 years,
with interest
payable in arrears on the first day of each month. Each Mortgage
Note requires a
monthly payment which is sufficient to fully amortize the original
principal
balance over the original term thereof (other than during the
interest-only
period with respect to a Mortgage Loan identified on the related
Mortgage Loan
Schedule as an interest-only Mortgage Loan or a Mortgage Loan
which is
identified on the related Mortgage Loan Schedule as a Balloon
Mortgage Loan) and
to pay interest at the related Mortgage Interest Rate. With respect
to each
Mortgage Loan identified on the Mortgage Loan Schedule as an
interest-only
Mortgage Loan, the interest-only period does not exceed ten (10)
years (or such
lesser period specified on the Mortgage Loan Schedule) and following
the
expiration of such interest-only period, the remaining Monthly
Payments shall be
sufficient to fully amortize the original principal balance over
the remaining
term of the Mortgage Loan. No Mortgage Loan contains terms or
provisions which
would result in negative amortization. No Mortgage Loan provides
for the
capitalization or forbearance of interest. ;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance
policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment
of Mortgage is
in recordable form and is acceptable for recording under the
laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the
related Mortgage
Loan Schedule and consists of a single parcel of real property
with a detached
single family residence erected thereon, or a townhouse, or a
two-to four-family
dwelling, or an individual condominium unit in a condominium
project, or an
individual unit in a planned unit development or a de minimis
planned unit
development, provided, however, that no residence or dwelling
is a single parcel
of real property with a cooperative housing corporation erected
thereon, or a
mobile home. As of the date of origination, no portion of the
Mortgaged Property
was used for commercial purposes, and since the date or origination
no portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the
Mortgage Loans are
subject to a Prepayment Penalty. For any Mortgage Loan originated
prior to
October 1, 2002 that is subject to a Prepayment Penalty, such
prepayment penalty
does not extend beyond five years after the date of origination.
For any
Mortgage Loan originated on or following October 1, 2002 that
is subject to a
Prepayment Penalty, such prepayment penalty does not extend beyond
three years
after the date of origination. Any such prepayment penalty is
permissible and
enforceable in accordance with its terms upon the Mortgagor’s full and voluntary
principal prepayment under applicable law. With respect to any
Mortgage Loan
that contains a provision permitting imposition of a penalty
upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit
to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such
a prepayment
penalty; (ii) prior to the mortgage loan’s origination, the borrower was offered
the option of obtaining a mortgage loan that did not require
the payment of such
a penalty; (iii) the prepayment penalty was adequately disclosed
to the
Mortgagor in the loan documents pursuant to applicable state
and federal law;
and (iv) such prepayment penalty shall not be imposed in any
instance where the
Mortgage Loan is accelerated or paid off in connection with the
workout of a
delinquent mortgage or due to the Mortgagor’s default, notwithstanding that the
terms of the Mortgage Loan or state or federal law might permit
the imposition
of such a prepayment penalty;
(ff) The
Mortgaged Property is lawfully occupied under applicable law,
and all
inspections, licenses and certificates required to be made or
issued with
respect to all occupied portions of the Mortgaged Property and,
with respect to
the use and occupancy of the same, including but not limited
to certificates of
occupancy and fire underwriting certificates, have been made
or obtained from
the appropriate authorities;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium
or planned unit
development project meets the eligibility requirements of ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇
Mac;
(hh)
There is
no pending action or proceeding directly involving the Mortgaged
Property in
which compliance with any environmental law, rule or regulation
is an issue;
there is no violation of any environmental law, rule or regulation
with respect
to the Mortgaged Property; and nothing further remains to be
done to satisfy in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(ii) The
Mortgagor has not notified the Company requesting relief under
the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act,
and
the Company has no knowledge of any relief requested or allowed
to the Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or
rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related
Closing Date
which has resulted or will result in an exclusion from, denial
of, or defense to
coverage under any insurance policy related to a Mortgage Loan
(including,
without limitation, any exclusions, denials or defenses which
would limit or
reduce the availability of the timely payment of the full amount
of the loss
otherwise due thereunder to the insured) whether arising out
of actions,
representations, errors, omissions, negligence, or fraud, or
for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association,
a savings bank,
a commercial bank, a credit union, an insurance company, or similar
institution
which is supervised and examined by a federal or state authority,
or by a
mortgagee approved by the Secretary of HUD pursuant to Sections
203 and 211 of
the National Housing Act;
(mm) No
Mortgaged Property is subject to a ground lease;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly assessed to the Mortgagor and
no claims will
arise as to broker fees that are double charged and for which
the Mortgagor
would be entitled to reimbursement;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been
delivered to the
Purchaser certifying that the original Mortgage Note has been
lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently
in default, the
enforcement of such Mortgage Loan will not be materially adversely
affected by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the
Assignment of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit
A-1 and
required to be delivered on the related Closing Date have been
delivered to the
Purchaser or its designee all in compliance with the specific
requirements of
this Agreement. With respect to each Mortgage Loan, the Company
is in possession
of a complete Mortgage File and Servicing File except for such
documents as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor
is true,
accurate and complete and does not contain any statement that
is or will be
inaccurate or misleading in any material respect;
(ss)
There
does not exist on the related Mortgaged Property any hazardous
substances,
hazardous wastes or solid wastes, as such terms are defined in
the Comprehensive
Environmental Response Compensation and Liability Act, the Resource
Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination
of more than
100% and no Mortgage Loan had a Combined Loan-to-Value Ratio
at the time of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of
the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
law, including any predatory or abusive lending laws (or a similarly
classified
loan using different terminology under a law imposing heightened
regulatory
scrutiny or additional legal liability for a residential mortgage
loan having
high interest rates, points and/or fees), (c) a High Cost Loan
or Covered Loan,
as applicable (as such terms are defined in the current version
of Standard
& Poor’s LEVELS® Glossary, Appendix E) or (d) in violation of any state law
or ordinance comparable to HOEPA. No Mortgage Loan (including
purchase money
loans or refinance transactions) has an “annual percentage rate” or “total
points and fees” payable by the Mortgagor (as each such term is defined under
HOEPA) that equal or exceed the applicable thresholds defined
under HOEPA
(Section 32 of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i)
and
(ii));
(vv) No
Mortgagor was required to purchase any credit life, disability,
accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit.
No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection
with the
origination of the Mortgage Loan; No proceeds from any Mortgage
Loan were used
to purchase or finance single-premium insurance policies or debt
cancellation
agreements as part of the origination of or as a condition to
closing, such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related
Closing Date have
been consolidated with the outstanding principal amount secured
by the Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate
and single repayment term. The lien of the Mortgage securing
the consolidated
principal amount is expressly insured as having (A) first lien
priority with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien priority
with respect to each Mortgage Loan which is indicated by the
Company to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Data Transmission),
in either case, by a title insurance policy, an endorsement to
the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal
amount does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day
year consisting of
twelve 30-day months;
(yy) With
respect to each Balloon Mortgage Loan, the Mortgage Note requires
a monthly
payment which is sufficient to fully amortize the original principal
balance
over the original term thereof and to pay interest at the related
Mortgage
Interest Rate and requires a final Monthly Payment substantially
greater than
the preceding monthly payment which is sufficient to repay the
remaining unpaid
principal balance of the Balloon Mortgage Loan at the Due Date
of such monthly
payment. No Balloon Mortgage Loan has an original stated maturity
of less than
seven (7) years;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by
MERS and such MIN
is accurately provided on the related Mortgage Loan Schedule.
The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received
any notice of
liens or legal actions with respect to such Mortgage Loan and
no such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing shall
be legally
classified as real property, is permanently affixed to a foundation
and must
assume the characteristics of site-built housing and must otherwise
conform to
the requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, including without
limitation the
requirement that such manufactured housing will be the principal
residence of
the Mortgagor upon origination of the Mortgage Loan;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately
furnished
complete information (e.g., favorable and unfavorable) on the
related borrower
credit files to Equifax, Experian and Trans Union Credit Information
Company
(three of the credit repositories), in accordance with the Fair
Credit Reporting
Act and its implementing regulations, on a monthly basis and
the Company will
fully furnish, in accordance with the Fair Credit Reporting Act
and its
implementing regulations, accurate and complete information (e.g.,
favorable and
unfavorable) on its borrower credit files to Equifax, Experian,
and Trans Union
Credit Information Company (three of the credit repositories),
on a monthly
basis;
(ddd) The
Company has complied with all applicable anti-money laundering
laws and
regulations, including without limitation the USA Patriot Act
of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program
as required
by the Anti-Money Laundering Laws, has conducted the requisite
due diligence in
connection with the origination of each Mortgage Loan for purposes
of the
Anti-Money Laundering Laws, including with respect to the legitimacy
of the
applicable Mortgagor and the origin of the assets used by the
said Mortgagor to
purchase the property in question, and maintains, and will maintain,
sufficient
information to identify the applicable Mortgagor for purposes
of the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification
pursuant to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department
of the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions
of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage
Loan the related
first lien does not contain any term that could result in negative
amortization;
(fff) No
predatory or deceptive lending practices, including but not limited
to, the
extension of credit to the applicable Mortgagor without regard
for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to
said Mortgagor which has no apparent benefit to said Mortgagor,
were employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending
eligibility for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied
manufactured
home located in the State of Georgia was originated (or modified)
on or after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgagor was encouraged or required to select a Mortgage Loan
product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as,
without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing
through the
Mortgage Loan originator’s higher priced sup prime lending channel was directed
towards or offered the Mortgage Loan’s originator standard mortgage line if the
Borrower was able to qualify for one of the standard products.
If, at the time
of loan application, the Mortgagor may have qualified for a lower
cost credit
product then offered by any mortgage lending affiliate of the
Mortgage Loan’s
originator, the Mortgage Loan’s originator referred the Mortgagor’s application
to such affiliate for underwriting consideration;
(iii) The
methodology used in underwriting the extension of credit for
each Mortgage Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension
of credit. The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based
on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make
timely payments
on the Mortgage Loan;
(jjj) All
points, fees and charges (including finance charges) and whether
or not
financed, assessed, collected or to be collected in connection
with the
origination and servicing of each Mortgage Loan have been disclosed
in writing
to the Mortgagor in accordance with applicable state and federal
law and
regulation;
(kkk) All
points and fees related to each Mortgage Loan were disclosed
in writing to the
Mortgagor in accordance with applicable state and federal law
and regulation. No
Mortgagor was charged “points and fees” (whether or not financed) in an amount
that exceeds the greater of (1) 5% of the principal amount of
such Mortgage Loan
(such 5% limitation is calculated in accordance with ▇▇▇▇▇▇ Mae’s requirements
as set forth in the ▇▇▇▇▇▇ Mae Selling Guide) or (2) $1,000;
(lll) The
Company will transmit full-file credit reporting data for each
Mortgage Loan
pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and for each
Mortgage Loan,
Company agrees it shall report one of the following statuses
each month as
follows: new origination, current, delinquent (30-, 60-, 90-days,
etc.),
foreclosed, or charged-off;
(mmm) Each
Mortgage Loan is eligible for sale in the secondary mortgage
market or for
securitization;
(nnn) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase
money Home Loan,
(2) purchase money Covered Loan (with
respect to Mortgage Loans which were originated between November
26, 2003 and
July 7, 2004),
or (3)
a rate/term refinance Home Loan;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made or caused to be made any payment in the
nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the
Commonwealth of
Massachusetts was made to pay off or refinance an existing loan
or other debt of
the related borrower (as the term "borrower" is defined in the
regulations
promulgated by the Massachusetts Secretary of State in connection
with the
Massachusetts General Laws Chapter 183, Section 28C) unless (a)
the related
Mortgage Interest Rate (that would be effective once the introductory
rate
expires, with respect to Adjustable Rate Mortgage Loans) did
or would not exceed
by more than 2.50% the yield on United States Treasury securities
having
comparable periods of maturity to the maturity of the related
Mortgage Loan as
of the fifteenth day of the month immediately preceding the month
in which the
application for the extension of credit was received by the related
lender or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage
Note provides that
the related Mortgage Interest Rate may not exceed at any time
the Prime rate
index as published in the Wall
Street Journal
plus a
margin of one percent;
(rrr) No
Mortgagor was charged “points and fees” in an amount greater than (a) $1,000 or
(b) 5% of the principal amount of the related Mortgage Loan,
whichever is
greater. For purposes of this representation, “points and fees” (x) include
origination, underwriting, broker and finder’s fees and charges that the lender
imposed as a condition of making the Mortgage Loan, whether they
are paid to the
lender or a third party; and (y) exclude bona fide discount points,
fees paid
for actual services rendered in connection with the origination
of the Mortgage
(such as attorneys’ fees, notaries fees and fees paid for property appraisals,
credit reports, surveys, title examinations and extracts, flood
and tax
certifications, and home inspections); the cost of mortgage insurance
or
credit-risk price adjustments; the costs of title, hazard, and
flood insurance
policies; state and local transfer taxes or fees; escrow deposits
for the future
payment of taxes and insurance premiums; and other miscellaneous
fees and
charges, which miscellaneous fees and charges, in total, do not
exceed 0.25
percent of the loan amount; and
(sss) With
respect to each Mortgage Loan, the related residential dwelling
is not a
manufactured housing unit.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006,
(“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
Meritage Mortgage Corporation (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other
valuable
consideration the receipt and sufficiency of which hereby are
acknowledged, and
of the mutual covenants herein contained, the parties hereto
hereby agree as
follows:
Assignment
and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee
(x) all of the right, title and interest of the Assignor, as
purchaser, in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase and Warranties and Interim Servicing Agreement dated
as of May
1, 2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as initial purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement
relates to the
Mortgage Loans and (y) other than as provided below with respect
to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee
hereunder any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase
Agreement
which are not the mortgage loans set forth on the Mortgage Loan
Schedule and are
not the subject of this Agreement.
Recognition
of the Company
From
and
after the date hereof, the Company shall and does hereby recognize
that the
Assignee will transfer the Mortgage Loans and assign its rights
under the
Purchase Agreement (solely to the extent set forth herein) and
this Agreement to
MASTR Asset-Backed Securities Trust 2006-HE4 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 2006
(the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust
administrator
(including its successors in interest and any successor servicers
under the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), ▇▇▇▇▇ Fargo
Bank, N.A. and Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing as
servicers and U.S. Bank National Association, as trustee (including
its successors in interest and any successor trustees under the
Pooling
Agreement,
the
“Trustee”).
The
Company hereby acknowledges and agrees that from and after the
date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any
obligations of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans,
(iii) the
Trust (including the Trustee and the Servicer acting on the Trust’s behalf)
shall have all the rights and remedies available to the Assignor,
insofar as
they relate to the Mortgage Loans, under the Purchase Agreement,
including,
without limitation, the enforcement of the document delivery
requirements and
remedies with respect to breaches of representations and warranties
set forth in
the Purchase Agreement, and shall be entitled to enforce all
of the obligations
of the Company thereunder insofar as they relate to the Mortgage
Loans, and
(iv) all references to the Purchaser (insofar as they relate to the
rights,
title and interest and, with respect to obligations of the Purchaser,
only
insofar as they relate to the enforcement of the representations,
warranties and
covenants of the Company) or the Custodian under the Purchase
Agreement insofar
as they relate to the Mortgage Loans, shall be deemed to refer
to the Trust
(including the Trustee and the Servicer acting on the Trust’s behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify,
waiver, or
otherwise alter any of the terms or provisions of the Purchase
Agreement which
amendment, modification, waiver or other alteration would in
any way affect the
Mortgage Loans or the Company’s performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent
of the
Trustee.
Representations
and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee
and the Trust as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing
under the laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and
perform its
obligations under this Agreement and has full power and authority
to perform its
obligations under the Purchase Agreement. The execution by the
Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now
a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Company or its property is subject.
The
execution, delivery and performance by the Company of this Agreement
have been
duly authorized by all necessary corporate action on part of
the Company. This
Agreement has been duly executed and delivered by the Company,
and, upon the due
authorization, execution and delivery by the Assignor and the
Assignee, will
constitute the valid and legally binding obligation of the Company,
enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium
or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be
obtained or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(d) There
is
no action, suit, proceeding or investigation pending or threatened
against the
Company, before any court, administrative agency or other tribunal,
which would
draw into question the validity of this Agreement or the Purchase
Agreement, or
which, either in any one instance or in the aggregate, would
result in any
material adverse change in the ability of the Company to perform
its obligations
under this Agreement or the Purchase Agreement, and the Company
is solvent.
2. Pursuant
to Section 8 of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee and the
Trust, that the
representations and warranties set forth in Sections 3.01 and
3.02 (other than
3.02(d), (e), (i), (j) (second sentence), (m) (last sentence),
(n) (second
sentence), (p), (r), (v), (w), (ff), (hh), (ii), (qq) (second
sentence with
respect to the Servicing File), (ss), (ww) (second sentence),
(aaa), (ccc),
(ddd) and (rrr), which are made as of the Servicing Transfer
Date as defined in
the Purchase Agreement and 3.02(c), (f), (j) (the last clause
of the last
sentence with respect Company’s right to sell and assign), (l), (n) (first
clause of first compound sentence) and (qq) (second sentence
with respect to the
Mortgage File, which are made as of the Closing Date as defined
in the Purchase
Agreement) of the Purchase Agreement (set forth on Schedule 1
hereto), are true
and correct as of the date of this Agreement as if such representations
and
warranties were made as of the date hereof.
3. The
Assignor hereby makes the following representations and warranties
as of the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material
respects with
applicable local, state, and federal laws, including, but not
limited to, all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable
predatory and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E);
(d) No
Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is
governed by the Georgia Fair Lending Act; and
(e) To
the
best of the Assignor’s knowledge, with respect to the
representations and warranties set forth in Section
3.02(d), (e), (i), (j) (second sentence), (m) (last sentence),
(n) (second
sentence), (p), (r), (v), (w), (ff), (hh), (ii), (qq) (second
sentence with
respect to the Servicing File), (ss), (ww) (second sentence),
(aaa), (ccc),
(ddd) and (rrr), nothing has occurred in the period of time from
the Servicing
Transfer Date (as defined in the Purchase Agreement) to the date
hereof which
would cause such representation and warranties to be untrue in
any material
respect as of the date hereof. With respect to the representations
and
warranties set forth in Section 3.02(c), (f), (j) (the last clause
of the last
sentence with respect Company’s right to sell and assign), (l), (n) (first
clause of first compound sentence) and (qq) (second sentence
with respect to the
Mortgage File nothing has occurred in the period of time from
the Closing Date
(as defined in the Purchase Agreement) to the date hereof which
would cause such
representation and warranties to be untrue in any material respect
as of the
date hereof.
Remedies
for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available
to the
Assignor, the Assignee and the Trust (including the Trustee and
the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth
in Sections 3 and 4
hereof shall be as set forth in Subsection 3.01 of the Purchase
Agreement as if
they were set forth herein (including without limitation the
repurchase and
indemnity obligations set forth therein). In addition, the Company
hereby
acknowledges and agrees that any breach of the representations
set forth in
Section 3.02(e), (h) (first sentence), (n) (clause (v)), (ee)
(third and fifth
sentences), (pp), (uu), (vv) (second sentence), (bbb), (ccc),
(ggg) (with
respect to Georgia), (hhh) (first two sentences), (iii), (kkk)
(second
sentence), (nnn) or (ooo) of the Purchase Agreement shall be
deemed to
materially and adversely affect the value of the related mortgage
loans or the
interests of the Trust in the related mortgage loans.
The
Company
shall
repurchase any Mortgage Loan sold to the
Assignor
on
September 27, 2006 for which the related mortgagor does not make
the scheduled
monthly payment due in October 2006 and the
Company
shall
repurchase any Mortgage Loan sold to the
Assignor
on
October 23, 2006 for which the related mortgagor does not make
the scheduled
monthly payment due in November 2006 on
or
prior to the last day of the calendar month such payment was
due
(a
“Delinquent Loan”) or, in lieu of repurchase of a Delinquent Loan by the
Company, the Assignor and the Company
may
agree to a substitution of another Mortgage Loan for any Delinquent
Loan. Any
such substituted Mortgage Loan will be subject to the
Assignor’s
acceptability. Such repurchase will be made at the Repurchase
Price
(as
defined
in the
Purchase
Agreement).
The
Assignor hereby acknowledges and agrees that the remedies available
to the
Assignee and the Trust (including the Trustee and the Master
Servicer acting on
the Trust’s behalf) in connection with any breach of the representations
and
warranties made by the Assignor set forth in Section 3 hereof
shall be as set
forth in Section 2.03 of the Pooling Agreement as if they were
set forth herein.
The
Assignor hereby acknowledges and agrees that a breach of any
one of the
representations set forth in Section 3 above will be deemed to
materially
adversely affect the interests of the certificateholders and
shall require a
repurchase of the affected Mortgage Loan(s).
Miscellaneous
4. This
Agreement shall be construed in accordance with the laws of the
State of New
York, without regard to conflicts of law principles, and the
obligations, rights
and remedies of the parties hereunder shall be determined in
accordance with
such laws.
5. No
term
or provision of this Agreement may be waived or modified unless
such waiver or
modification is in writing and signed by the party against whom
such waiver or
modification is sought to be enforced, with the prior written consent of the
Trustee.
6. This
Agreement shall inure to the benefit of (i) the successors and
assigns of the
parties hereto and (ii) the Trust (including the Trustee and
the Servicer acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company
may
be merged or consolidated shall, without the requirement for
any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
7. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to
the extent
assigned hereunder) by Assignor to Assignee and by Assignee to
the
Trust.
8. This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
9. In
the
event that any provision of this Agreement conflicts with any
provision of the
Purchase Agreement with respect to the Mortgage Loans, the terms
of this
Agreement shall control.
10. Capitalized
terms used in this Agreement (including the exhibits hereto)
but not defined in
this Agreement shall have the meanings given to such terms in
the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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MERITAGE
MORTGAGE CORPORATION
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By:
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Name:
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Title:
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EXHIBIT
A
Mortgage
Loan Schedule
AVAILABLE
UPON REQUEST
SCHEDULE
1
Limitations
on Representations and Warranties
Capitalized
terms used herein but not defined in this Schedule 1 shall have
the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that
as of each
Closing Date and as of each Servicing Transfer Date or as of
such date
specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing
under the laws of
Oregon. The Company has all licenses necessary to carry out its
business as now
being conducted, and is licensed and qualified to transact business
in and is in
good standing under the laws of each state in which any Mortgaged
Property is
located or is otherwise exempt under applicable law from such
licensing or
qualification or is otherwise not required under applicable law
to effect such
licensing or qualification and no demand for such licensing or
qualification has
been made upon the Company by any such state, and in any event
the Company is in
compliance with the laws of any such state to the extent necessary
to ensure the
enforceability of each Mortgage Loan and the interim servicing
of the Mortgage
Loans in accordance with the terms of this Agreement. No licenses
or approvals
obtained by the Company have been suspended or revoked by any
court,
administrative agency, arbitrator or governmental body and no
proceedings are
pending which might result in such suspension or revocation;
(b) The
Company has the full power and authority and legal right to hold,
transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver
and perform, and to enter into and consummate all transactions
contemplated by
this Agreement and the related Confirmation and to conduct its
business as
presently conducted; the Company has duly authorized the execution,
delivery and
performance of this Agreement and any agreements contemplated
hereby, has duly
executed and delivered this Agreement and the related Confirmation,
and any
agreements contemplated hereby, and this Agreement and the related
Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements
contemplated
hereby, constitute the legal, valid and binding obligations of
the Company,
enforceable against it in accordance with their respective terms,
except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles
affecting the
enforceability of the rights of creditors; and all requisite
corporate action
has been taken by the Company to make this Agreement, the related
Confirmation
and all agreements contemplated hereby valid and binding upon
the Company in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the
transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and
conditions of this Agreement and the related Confirmation will
conflict with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any
of the terms,
conditions or provisions of any legal restriction or any agreement
or instrument
to which the Company is now a party or by which it is bound,
or constitute a
default or result in an acceleration under any of the foregoing,
or result in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or to
the Company’s
knowledge threatened, or any order or decree outstanding, which
is reasonably
likely to have a material adverse effect on the sale of the Mortgage
Loans, the
execution, delivery, performance or enforceability of this Agreement
or the
related Confirmation, or which is reasonably likely to have a
material adverse
effect on the financial condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance
by the Company of
or compliance by the Company with this Agreement and the related
Confirmation,
except for consents, approvals, authorizations and orders which
have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement
and the related
Confirmation are in the ordinary course of business of the Company,
and the
transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by
the Company pursuant to this Agreement and the related Confirmation
are not
subject to bulk transfer or any similar statutory provisions
in effect in any
applicable jurisdiction;
(g) The
Company has not used selection procedures that identified the
Mortgage Loans as
being less desirable or valuable than other comparable mortgage
loans in the
Company’s portfolio at the related Closing Date;
(h) The
Company will treat the transfer of the Mortgage Loans to the
Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete
set of books
and records for each Mortgage Loan which shall be clearly marked
to reflect the
ownership of such Mortgage Loan by the Purchaser;
(i) The
Company is an approved seller/servicer of residential mortgage
loans for ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ Mac or HUD, with such facilities, procedures and
personnel
necessary for the sound servicing of such mortgage loans. The
Company is duly
qualified, licensed, registered and otherwise authorized under
all applicable
federal, state and local laws and regulations to conduct its
business as
presently conducted in each location where a Mortgaged Property
is located;
(j) The
Company does not believe, nor does it have any cause or reason
to believe, that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent
and the sale of
the Mortgage Loans will not cause the Company to become insolvent.
The sale of
the Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud
any of the Company’s creditors;
(k) No
statement, tape, diskette, form, report or other document prepared
by, or on
behalf of, the Company pursuant to this Agreement, the related
Confirmation or
in connection with the transactions contemplated hereby, contains
or will
contain any statement that is or will be inaccurate or misleading
in any
material respect. The Company has prudently originated and underwritten
each
Mortgage Loan;
(l) The
consideration received by the Company upon the sale of the Mortgage
Loans
constitutes fair consideration and reasonably equivalent value
for such Mortgage
Loans;
(m) The
Company has delivered to the Initial Purchaser public financial
statements of
its parent holding company as to its last two complete fiscal
years. All such
financial statements fairly present the pertinent results of
operations and
changes in financial position for each of such periods and the
financial
position at the end of each such period of the Company and its
subsidiaries and
have been prepared in accordance with GAAP consistently applied
throughout the
periods involved, except as set forth in the notes thereto. There
has been no
change in the business, operations, financial condition, properties
or assets of
the Company since the date of the Company’s financial statements that would have
a material adverse effect on its ability to perform its obligations
under this
Agreement or the related Confirmation (other than events previously
disclosed in
any Exchange Act filings by the Company or its affiliates);
(n) The
Company has not dealt with any broker, investment banker, agent
or other person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(o) The
Company is a member of MERS in good standing, and has been in
compliance in all
material respects with the rules and procedures of MERS in connection
with the
servicing of the MERS Mortgage Loans for as long as such Mortgage
Loans are
registered with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to
each Mortgage
Loan, as of the related Closing Date and as of the related Servicing
Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule,
including any
diskette or other related data tapes sent to the Initial Purchaser,
is complete,
true and correct in all material respects;
(b) [Reserved];
(c) All
payments due on or prior to the related Closing Date for such
Mortgage Loan have
been made as of the related Closing Date, the Mortgage Loan is
not delinquent in
payment more than 30 days and has not been dishonored, there
are no material
defaults under the terms of the Mortgage Loan, the Company has
not advanced
funds, or induced, solicited or knowingly received any advance
of funds from a
party other than the owner of the Mortgaged Property subject
to the Mortgage,
directly or indirectly, for the payment of any amount required
by the Mortgage
Loan and no payment with respect to each Mortgage Loan has been
delinquent
during the preceding twelve-month period by more than thirty
(30) days from the
Due Date of the payment;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer
and municipal
charges, leasehold payments or ground rents which previously
became due and
owing have been paid, or escrow funds have been established in
an amount
sufficient to pay for every such escrowed item which remains
unpaid and which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or
modified in any respect, except by written instruments which
have been recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor
has been
released, in whole or in part, from the terms thereof except
in connection with
an assumption agreement and which assumption agreement is part
of the Mortgage
File and the terms of which are reflected in the related Mortgage
Loan Schedule;
the substance of any such waiver, alteration or modification
has been approved
by the issuer of any related title insurance policy, to the extent
required by
the related policy. With respect to each Second Lien Mortgage
Loan (a) the
related first lien is in full force and effect, (b) there is
no default, breach,
violation or event of acceleration existing under the related
first lien
mortgage or the mortgage note related to such first lien mortgage,
(c) either no
consent for the Mortgage Loan is required by the holder of the
first lien or
such consent has been obtained and is contained in the Mortgage
Loan File, (d)
no event which, with the passage of time or with notice and the
expiration of
any grace or cure period, would constitute a default, breach,
violation or event
of acceleration under the related first lien mortgage loan, and
either (1) the
related first lien mortgage contains a provision which allows
or (2) applicable
law requires, the mortgagee under the Second Lien Mortgage Loan
to receive
notice of, and affords such mortgagee an opportunity to cure
any default by
payment in full or otherwise under the related first lien mortgage,
and (e) such
Second Lien Mortgage Loan is secured by a one- to four-family
residence that is
the principal residence of the Mortgagor;
(f) The
Mortgage Note and the Mortgage (1) are not subject to any right
of rescission,
set-off, counterclaim or defense, including, without limitation,
the defense of
usury, (2) nor will the operation of any of the terms of the
Mortgage Note or
the Mortgage, or the exercise of any right thereunder, render
the Mortgage Note
or Mortgage unenforceable, in whole or in part, or subject to
any right of
rescission, set-off, counterclaim or defense, including the defense
of usury and
(3) no such right of rescission, set-off, counterclaim or defense
has been
asserted with respect thereto; the Mortgagor was not a debtor
in any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the
Mortgaged Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ Guides,
against loss
by fire, hazards of extended coverage and such other hazards
as are provided for
in the ▇▇▇▇▇▇ Mae Guides or by the ▇▇▇▇▇▇▇ Mac Guides, in an
amount representing
coverage not less than the lesser of (i) the maximum insurable
value of the
improvements securing such Mortgage Loans, and (ii) the greater
of (a) either
(1) the outstanding principal balance of the Mortgage Loan with
respect to each
Mortgage Loan which is indicated by the Company to be a First
Lien (as reflected
on the Mortgage Loan Schedule) or (2) with respect to each Second
Lien Mortgage
Loan, the sum of the outstanding principal balance of the first
lien on such
Mortgage Loan and the outstanding principal balance of such Second
Lien Mortgage
Loan, and (b) an amount such that the proceeds thereof shall
be sufficient to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer,
but in no
event greater than the maximum amount permitted under applicable
law. All such
standard hazard policies are in full force and effect and on
the date of
origination contained a standard mortgagee clause naming the
Company and its
successors in interest and assigns as loss payee and (x) such
clause is still in
effect and (y) all premiums due thereon have been paid. If required
by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan
is covered by a
flood insurance policy meeting the requirements of the current
guidelines of the
Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇
Mac requirements, in an amount not less than the amount required
by the Flood
Disaster Protection Act of 1973, as amended. Such policy was
issued by an
insurer acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines.
The Mortgage (u)
obligates the Mortgagor thereunder to maintain all such insurance
at the
Mortgagor’s cost and expense, and (v) upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance
at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Any
and
all requirements of any federal, state or local law including,
without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing, disclosure
or
predatory, fair and abusive lending laws applicable to the Mortgage
Loan or any
related Prepayment Penalty have been complied with in all material
respects. The
consummation of the transactions contemplated hereby will not
involve the
violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other
than the
subordination of any Second Lien Mortgage Loan to the related
First Lien), in
whole or in part, or rescinded, the Mortgaged Property has not
been released
from the lien of the Mortgage, in whole or in part, nor has any
instrument been
executed that would effect any such release, cancellation, subordination
or
rescission. The Company has not waived the performance by the
Mortgagor of any
action, if the Mortgagor’s failure to perform such action would cause the
Mortgage Loan to be in default, and the Company has not waived
any default
resulting from any action or inaction by the Mortgagor;
(j) Subject
to the items listed in (1)-(4) below, the related Mortgage is
a valid,
subsisting, enforceable and perfected (A) first lien and first
priority security
interest with respect to each Mortgage Loan which is indicated
by the Company to
be a First Lien (as reflected on the Mortgage Loan Schedule),
or (B) second lien
and second priority security interest with respect to each Mortgage
Loan which
is indicated by the Company to be a Second Lien Mortgage Loan
(as reflected on
the Mortgage Loan Schedule), in either case, on the Mortgaged
Property including
all buildings on the Mortgaged Property and all installations
and mechanical,
electrical, plumbing, heating and air conditioning systems affixed
to such
buildings, and all additions, alterations and replacements made
at any time with
respect to the foregoing securing the Mortgage Note’s original principal
balance. Such lien is free and clear of all adverse claims, liens
and
encumbrances having priority over the first lien of the Mortgage
subject only to
(1) the lien of non-delinquent current real property taxes and
assessments not
yet due and payable, (2) covenants, conditions and restrictions,
rights of way,
easements and other matters of the public record as of the date
of recording
which are acceptable to mortgage lending institutions generally
and either (A)
which are referred to or otherwise considered in the appraisal
made for the
originator of the Mortgage Loan, or (B) which do not adversely
affect the
appraised value of the Mortgaged Property as set forth in such
appraisal, (3)
other matters to which like properties are commonly subject which
do not
materially interfere with the benefits of the security intended
to be provided
by the Mortgage or the use, enjoyment, value or marketability
of the related
Mortgaged Property or (4) with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien Mortgage Loan (as reflected
on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security
agreement,
chattel mortgage or equivalent document related to and delivered
in connection
with the Mortgage Loan establishes and creates a valid, subsisting,
enforceable
and perfected (A) first lien and first priority security interest
with respect
to each Mortgage Loan which is indicated by the Company to be
a First Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien
and second priority
security interest with respect to each Mortgage Loan which is
indicated by the
Company to be a Second Lien Mortgage Loan (as reflected on the
Mortgage Loan
Schedule), in either case, on the property described therein,
and the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine
and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy,
insolvency,
moratorium, reorganization and other laws of general application
affecting the
rights of creditors and by general equitable principles and the
Company has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage
had the legal
capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have
been duly and
properly executed by such parties. No fraud, error, omission,
misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan
has taken place
on the part of the Company, the Mortgagor, or any other party
involved in the
origination or servicing of the Mortgage Loan. The proceeds of
the Mortgage Loan
have been fully disbursed and there is no requirement for future
advances
thereunder, and any and all requirements as to completion of
any on-site or
off-site improvements and as to disbursements of any escrow funds
therefor have
been complied with. All costs, fees and expenses incurred in
making or closing
the Mortgage Loan and the recording of the Mortgage were paid
or are in the
process of being paid, and the Mortgagor is not entitled to any
refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage
Loan and the
indebtedness evidenced by the Mortgage Note, and upon recordation
of the
Assignment of Mortgage the Purchaser or its designee will be
the owner of record
of the Mortgage and the indebtedness evidenced by the Mortgage
Note, and upon
the sale of the Mortgage Loan to the Purchaser, the Company will
retain the
Servicing File in trust for the Purchaser only for the purpose
of interim
servicing and supervising the interim servicing of the Mortgage
Loan.
Immediately prior to the transfer and assignment to the Purchaser
on the related
Closing Date, the Mortgage Loan, including the Mortgage Note
and the Mortgage,
were not subject to an assignment or pledge, and the Company
had good and
marketable title to and was the sole owner thereof (except for
a security
interest in each Mortgage Note and Mortgage in favor of the Company’s warehouse
lender(s) which security interest will be terminated simultaneously
with the
sale of such Mortgage Note and Mortgage to the Purchaser) and
had full right to
transfer and sell the Mortgage Loan to the Purchaser free and
clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest and has
the full right and authority subject to no interest or participation
of, or
agreement with, any other party, to sell and assign the Mortgage
Loan pursuant
to this Agreement and following the sale of the Mortgage Loan,
the Purchaser
will own such Mortgage Loan free and clear of any encumbrance,
equity,
participation interest, lien, pledge, charge, claim or security
interest. The
Company intends to relinquish all rights to possess, control
and monitor the
Mortgage Loan, except for the purposes of interim servicing the
Mortgage Loan as
set forth in this Agreement. Either the Mortgagor is a natural
person or the
Mortgagor is an inter-vivos trust acceptable to ▇▇▇▇▇▇ Mae. With
respect to each
inter-vivos trust, holding title to the Mortgaged Property in
such trust will
not diminish any rights as a creditor including the right to
full title to the
Mortgaged Property in the event foreclosure proceedings are
initiated;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and qualified
to do
business in the jurisdiction where the Mortgaged Property is
located, insuring
(subject to the exceptions contained in (j)(1), (2) and (3) above
and, with
respect to each Mortgage Loan which is indicated by the Company
to be a Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule)
clause (4)) the
Company, its successors and assigns, as to the first (or, where
applicable,
second) priority lien of the Mortgage in the original principal
amount of the
Mortgage Loan and, with respect to each Adjustable Rate Mortgage
Loan, against
any loss by reason of the invalidity or unenforceability of the
lien resulting
from the provisions of the Mortgage providing for adjustment
in the Mortgage
Interest Rate and Monthly Payment; provided that for Mortgage
Loans secured by
Mortgaged Property located in Iowa, the Company has obtained
an attorney’s
opinion as to title matters. Additionally, such policy affirmatively
insures
ingress and egress to and from the Mortgaged Property. Where
required by
applicable state law or regulation, the Mortgagor has been given
the opportunity
to choose the carrier of the required mortgage title insurance.
The Company, its
successors and assigns, are the sole insureds of such lender’s title insurance
policy, such title insurance policy has been duly and validly
endorsed to the
Purchaser or the assignment to the Purchaser of the Company’s interest therein
does not require the consent of or notification to the insurer
and such lender’s
title insurance policy is in full force and effect and will be
in full force and
effect upon the consummation of the transactions contemplated
by this Agreement
and the related Confirmation. No claims have been made under
such lender’s title
insurance policy, and no prior holder of the related Mortgage,
including the
Company, has done, by act or omission, anything which would impair
the coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing
under the
Mortgage or the related Mortgage Note and no event which, with
the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default,
breach,
violation or event permitting acceleration. With respect to each
Mortgage Loan
which is indicated by the Company to be a Second Lien Mortgage
Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is
in full force and
effect, (ii) there is no default, breach, violation or event
of acceleration
existing under such First Lien mortgage or the related mortgage
note, (iii)
either no consent for the Mortgage Loan is required by the holder
of the First
Lien or such consent has been obtained and is contained in the
Mortgage File,
(iv) to the best of Company’s knowledge, no event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration
thereunder, and
either (A) the First Lien mortgage contains a provision which
allows or (B)
applicable law requires, the mortgagee under the Second Lien
Mortgage Loan to
receive notice of, and affords such mortgagee an opportunity
to cure any default
by payment in full or otherwise under the First Lien mortgage,
and (v) such
Second Lien Mortgage Loan is secured by a one- to four-family
residence that was
(or would be) the principal residence of the Mortgagor upon the
origination of
the Second Lien Mortgage Loan;
(o) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could
give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in
determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and
building restriction lines of the Mortgaged Property (and wholly
within the
project with respect to a condominium unit) and no improvements
on adjoining
properties encroach upon the Mortgaged Property except those
which are insured
against by the title insurance policy referred to in clause (m)
above and all
improvements on the property comply with all applicable zoning
and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage
Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage
Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on
forms generally
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Mortgage Loan bears
interest at the
Mortgage Interest Rate set forth in the related Mortgage Loan
Schedule, and
Monthly Payments under the Mortgage Note are due and payable
on the first day of
each month. The Mortgage contains the usual and enforceable provisions
of the
originator at the time of origination for the acceleration of
the payment of the
unpaid principal amount of the Mortgage Loan if the related Mortgaged
Property
is sold without the prior consent of the mortgagee thereunder;
(r) The
Mortgaged Property is not subject to any material damage by waste,
fire,
earthquake, windstorm, flood or other casualty, and is in good
repair. At
origination of the Mortgage Loan there was, and there currently
is, no
proceeding pending for the total or partial condemnation of the
Mortgaged
Property. There have not been any condemnation proceedings with
respect to the
Mortgaged Property and there are no such proceedings scheduled
to commence at a
future date;
(s) The
related Mortgage contains customary and enforceable provisions
such as to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided thereby.
There is no homestead or other exemption available to the Mortgagor
which would
interfere with the right to sell the Mortgaged Property at a
trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and
duly qualified
if required under applicable law to act as such, has been properly
designated
and currently so serves and is named in the Mortgage, and no
fees or expenses
are or will become payable by the Purchaser to the trustee under
the deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged
Property which, (a)
with respect to First Lien Mortgage Loans, was on appraisal form
1004 or form
2055 with an interior inspection, or (b) with respect to Second
Lien Mortgage
Loans, was on appraisal form 704, 2065 or 2055 with an exterior
only inspection,
and (c) with respect to (a) or (b) above was signed prior to
the final approval
of the mortgage loan application by a Qualified Appraiser, who
had no interest,
direct or indirect, in the Mortgaged Property or in any loan
made on the
security thereof, and whose compensation is not affected by the
approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy
the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and Title XI of
FIRREA and the
regulations promulgated thereunder, all as in effect on the date
the Mortgage
Loan was originated. The appraisal is in a form acceptable to
▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether
as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in
which they held
and disposed of such interest, were) (A) in compliance with any
and all
applicable licensing requirements of the laws of the state wherein
the Mortgaged
Property is located, and (B) (1) organized under the laws of
such state, or (2)
qualified to do business in such state, or (3) federal savings
and loan
associations or national banks or a Federal Home Loan Bank or
savings bank
having principal offices in such state, or (4) not doing business
in such
state;
(w) The
related Mortgage Note is not and has not been secured by any
collateral except
the lien of the corresponding Mortgage and the security interest
of any
applicable security agreement or chattel mortgage referred to
in (j) above and
such collateral does not serve as security for any other obligation
except with
respect to a junior Mortgage Loan identified on the Mortgage
Loan
Schedule;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no
Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy as of the origination of the Mortgage
Loan and,
to the best of Company’s knowledge, the Mortgagor is not insolvent and the
Company has no knowledge of any circumstances or condition with
respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors
to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become
delinquent, or materially adversely affect the value or marketability
of the
Mortgage Loan;
(aa) Principal
payments on the Mortgage Loan (except for interest only Mortgage
Loans)
commenced no more than sixty (60) days after the funds were disbursed
in
connection with the Mortgage Loan. The Mortgage Loans have an
original term to
maturity of not more than 30 years, with interest payable in
arrears on the
first day of each month. Each Mortgage Note (other than with
respect to a
Balloon Mortgage Loan) requires a monthly payment which is sufficient
to fully
amortize the original principal balance over the original term
thereof (other
than during the interest-only period with respect to a Mortgage
Loan identified
on the related Mortgage Loan Schedule as an interest-only Mortgage
Loan) and to
pay interest at the related Mortgage Interest Rate. With respect
to each
Mortgage Loan identified on the Mortgage Loan Schedule as an
interest-only
Mortgage Loan, the interest-only period does not exceed ten (10)
years (or such
lesser period specified on the Mortgage Loan Schedule) and following
the
expiration of such interest-only period, the remaining Monthly
Payments shall be
sufficient to fully amortize the original principal balance over
the remaining
term of the Mortgage Loan. With respect to each Balloon Mortgage
Loan, the
Mortgage Note requires a monthly payment which is sufficient
to fully amortize
the original principal balance over the original term thereof
and to pay
interest at the related Mortgage Interest Rate and requires a
final Monthly
Payment substantially greater than the preceding monthly payment
which is
sufficient to repay the remained unpaid principal balance of
the Balloon
Mortgage Loan as the Due Date of such monthly payment. No Mortgage
Loan contains
terms or provisions which would result in negative amortization.
No Mortgage
Loan provides for the capitalization or forbearance of interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance
policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment
of Mortgage is
in recordable form and is acceptable for recording under the
laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the
related Mortgage
Loan Schedule and consists of a single parcel of real property
with a detached
single family residence erected thereon, or a townhouse, or a
two-to four-family
dwelling, or an individual condominium unit in a condominium
project, or an
individual unit in a planned unit development or a de minimis
planned unit
development, provided, however, that no residence or dwelling
is a single parcel
of real property with a cooperative housing corporation erected
thereon, or a
mobile home. As of the date of origination, no portion of the
Mortgaged Property
was used for commercial purposes, and since the date of origination
no portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the
Mortgage Loans are
subject to a Prepayment Penalty. For any Mortgage Loan originated
prior to
October 1, 2002 that is subject to a Prepayment Penalty, such
prepayment penalty
does not extend beyond five years after the date of origination.
For any
Mortgage Loan originated on or following October 1, 2002 that
is subject to a
Prepayment Penalty, such prepayment penalty does not extend beyond
three years
after the date of origination.
Any such
prepayment penalty is permissible and enforceable in accordance
with its terms
upon the Mortgagor’s full and voluntary principal prepayment under applicable
law. With
respect to any Mortgage Loan that contains a provision permitting
imposition of
a penalty upon a prepayment prior to maturity: (i) the Mortgage
Loan provides
some benefit to the Mortgagor (e.g., a rate or fee reduction)
in exchange for
accepting such prepayment penalty; (ii) the Mortgage Loan’s originator had a
written policy of offering the Mortgagor, or requiring third-party
brokers to
offer the Mortgagor, the option of obtaining a Mortgage Loan
that did not
require payment of such a prepayment penalty; and (iii) the prepayment
penalty
was adequately disclosed to the Mortgagor in the loan documents
pursuant to
applicable state and federal law;
(ff) The
Mortgaged Property is lawfully occupied under applicable law,
and all
inspections, licenses and certificates required to be made or
issued with
respect to all occupied portions of the Mortgaged Property and,
with respect to
the use and occupancy of the same, including but not limited
to certificates of
occupancy and fire underwriting certificates, have been made
or obtained from
the appropriate authorities;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium
or planned unit
development project meets the eligibility requirements of ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇
Mac;
(hh)
There is
no pending action or proceeding directly involving the Mortgaged
Property in
which compliance with any environmental law, rule or regulation
is an issue;
there is no violation of any environmental law, rule or regulation
with respect
to the Mortgaged Property; and nothing further remains to be
done to satisfy in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(ii) The
Mortgagor has not notified the Company requesting relief under
the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act,
and
the Company has no knowledge of any relief requested or allowed
to the Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or
rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related
Closing Date
which has resulted or will result in an exclusion from, denial
of, or defense to
coverage under any insurance policy related to a Mortgage Loan
(including,
without limitation, any exclusions, denials or defenses which
would limit or
reduce the availability of the timely payment of the full amount
of the loss
otherwise due thereunder to the insured) whether arising out
of actions,
representations, errors, omissions, negligence, or fraud, or
for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association,
a savings bank,
a commercial bank, a credit union, an insurance company, or similar
institution
which is supervised and examined by a federal or state authority,
or by a
mortgagee approved by the Secretary of HUD pursuant to Sections
203 and 211 of
the National Housing Act;
(mm) With
respect to each Mortgage Loan secured in whole or in part by
the interest of the
Borrower as a lessee under a ground lease of a Mortgaged Property
(a “Ground
Lease”) the real property securing such Mortgage Loan is located in
a
jurisdiction in which the use of leasehold estates for residential
properties is
a widely-accepted practice and:
(a) The
Mortgagor is the owner of a valid and subsisting interest as
tenant under the
Ground Lease;
(b) The
Ground Lease is in full force and effect, unmodified and not
supplemented by any
writing or otherwise;
(c) The
mortgagor is not in default under any of the terms thereof and
there are no
circumstances which, with the passage of time or the giving of
notice or both,
would constitute an event of default thereunder;
(d) The
lessor under the Ground Lease is not in default under any of
the terms or
provisions thereof on the part of the lessor to be observed or
performed;
(e) The
term
of the Ground Lease exceeds the maturity date of the related
Mortgage Loan by at
least ten years;
(f) The
Ground Lease or a memorandum thereof has been recorded and by
its terms permits
the leasehold estate to be mortgaged. The Ground Lease grants
any leasehold
mortgagee standard protection necessary to protect the security
of a leasehold
mortgagee;
(g) The
Ground Lease does not contain any default provisions that could
give rise to
forfeiture or termination of the Ground Lease except for the
non-payment of the
Ground Lease rents;
(h) The
execution, delivery and performance of the Mortgage do not require
the consent
(other than those consents which have been obtained and are in
full force and
effect) under, and will not contravene any provision of or cause
a default
under, the Ground Lease; and
(i) The
Ground Lease provides that the leasehold can be transferred,
mortgaged and
sublet an unlimited number of times either without restriction
or on payment of
a reasonable fee and delivery of reasonable documentation to
the
lessor;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly assessed to the Mortgagor and
no claims will
arise as to broker fees that are double charged and for which
the Mortgagor
would be entitled to reimbursement;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been
delivered to the
Purchaser certifying that the original Mortgage Note has been
lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently
in default, the
enforcement of such Mortgage Loan will not be materially adversely
affected by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage within the meaning
of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the
Assignment of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit
A-1 and
required to be delivered on the related Closing Date have been
delivered to the
Purchaser or its designee all in compliance with the specific
requirements of
this Agreement. With respect to each Mortgage Loan, the Company
is in possession
of a complete Mortgage File and Servicing File except for such
documents as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor
is true,
accurate and complete and does not contain any statement that
is or will be
inaccurate or misleading in any material respect;
(ss)
There
does not exist on the related Mortgaged Property any hazardous
substances,
hazardous wastes or solid wastes, as such terms are defined in
the Comprehensive
Environmental Response Compensation and Liability Act, the Resource
Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination
of more than
100% and no Mortgage Loan had a Combined Loan-to-Value Ratio
at the time of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of
the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
law, including any predatory or abusive lending laws (or a similarly
classified
loan using different terminology under a law imposing heightened
regulatory
scrutiny or additional legal liability for a residential mortgage
loan having
high interest rates, points and/or fees), (c) a High Cost Loan
or Covered Loan,
as applicable (as such terms are defined in the current version
of Standard
& Poor’s LEVELS® Glossary which is now Version 5.6(d) Revised, Appendix E)
or (d) in violation of any state law or ordinance comparable
to HOEPA. No
Mortgage Loan has an “annual percentage rate” or total Points and Fees payable
by the Mortgagor (as each such term is defined in HOEPA) that
equal or exceed
the applicable thresholds defined under HOEPA (Section 32 of
Regulation Z, 12
C.F.R. Section 226.32(a)(1)(i) and (ii));
(vv) No
Mortgagor was required to purchase any credit life, disability,
accident,
unemployment, personal property or health insurance product or
debt cancellation
agreement as a condition of obtaining the extension of credit.
No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
personal property, mortgage, accident or health insurance policy
in connection
with the origination of the Mortgage Loan. No proceeds from any
Mortgage Loan
were used to purchase or finance single-premium insurance policies
or debt
cancellation agreements as part of the origination of or as a
condition to
closing, such Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related
Closing Date have
been consolidated with the outstanding principal amount secured
by the Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate
and single repayment term. The lien of the Mortgage securing
the consolidated
principal amount is expressly insured as having (A) first lien
priority with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien priority
with respect to each Mortgage Loan which is indicated by the
Company to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Data Transmission),
in either case, by a title insurance policy, an endorsement to
the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal
amount does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day
year consisting of
twelve 30-day months;
(yy) Unless
otherwise set forth on the related Mortgage Loan Schedule, no
Mortgage Loan is a
Balloon Mortgage Loan;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by
MERS and such MIN
is accurately provided on the related Mortgage Loan Schedule.
The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received
any notice of
liens or legal actions with respect to such Mortgage Loan and
no such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing shall
be legally
classified as real property, is permanently affixed to a foundation
and must
assume the characteristics of site-built housing and must otherwise
conform to
the requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, including without
limitation the
requirement that such manufactured housing will be the principal
residence of
the Mortgagor upon origination of the Mortgage Loan;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately
furnished
complete information (e.g. favorable and unfavorable) on the
related borrower
credit files to Equifax, Experian and Trans Union Credit Information
Company
(three of the credit repositories), in accordance with the Fair
Credit Reporting
Act and its implementing regulations, on a monthly basis and
the Company will
fully furnish, in accordance with the Fair Credit Reporting Act
and its
implementing regulations, accurate and complete information (e.g.
favorable and
unfavorable) on its borrower credit files to Equifax, Experian,
and Trans Union
Credit Information Company (three of the credit repositories),
on a monthly
basis.
(ddd) The
Company has complied with all applicable anti-money laundering
laws and
regulations, including without limitation the USA Patriot Act
of 2001
(collectively, the “Anti-Money Laundering Laws”). The Company has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in
connection with
the origination of each Mortgage Loan for purposes of the Anti-Money
Laundering
Laws, including with respect to the legitimacy of the applicable
Mortgagor and
the origin of the assets used by the said Mortgagor to purchase
the property in
question, and maintains, and will maintain, sufficient information
to identify
the applicable Mortgagor for purposes of the Anti-Money Laundering
Laws. No
Mortgage Loan is subject to nullification pursuant to Executive
Order 13224 (the
“Executive Order”) or the regulations promulgated by the Office of Foreign
Assets Control of the United States Department of the Treasury
(the “OFAC
Regulations”) or in violation of the Executive Order or the OFAC Regulations,
and no Mortgagor is subject to the provisions of such Executive
Order or the
OFAC Regulations nor listed as a “blocked person” for purposes of the OFAC
Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage
Loan if the
related first lien provides for negative amortization, the LTV
was calculated at
the maximum principal balance of such first lien that could result
upon
application of such negative amortization feature;
(fff) No
predatory or deceptive lending practices, including but not limited
to, the
extension of credit to the applicable Mortgagor without regard
for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to
said Mortgagor which has no apparent benefit to said Mortgagor,
were employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending
eligibility for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied
manufactured
home located in the State of Georgia was originated (or modified)
on or after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgagor was encouraged or required to select a Mortgage Loan
product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as,
without
limitation, the Mortgage Loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing
through the
Mortgage Loan originator’s higher-priced subprime lending channel was directed
towards or offered the Mortgage Loan originator’s standard mortgage line if the
Mortgagor was able to qualify for one of the standard products;
(iii) The
methodology used in underwriting the extension of credit for
each Mortgage Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit.
The
methodology employed objective criteria that related such facts
as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology,
the Mortgage
Loan’s originator made a reasonable determination that at the time
of
origination the Mortgagor had the ability to make timely payments
on the
Mortgage Loan;
(jjj) All
points, fees and charges (including finance charges) and whether
or not
financed, assessed, collected or to be collected in connection
with the
origination and servicing of each Mortgage Loan have been disclosed
in writing
to the Mortgagor in accordance with applicable state and federal
law and
regulation;
(kkk) All
Points and Fees related to each Loan were disclosed in writing
to the Mortgagor
in accordance with applicable state and federal law and regulation.
Except as
otherwise disclosed in the Mortgage Loan Schedule, no Mortgagor
was charged
Points and Fees (whether or not financed) in an amount that exceeds
the greater
of (1) 5% of the principal amount of such Mortgage Loan (such
5% limitation is
calculated in accordance with ▇▇▇▇▇▇ Mae’s requirements as set forth in the
▇▇▇▇▇▇ Mae Selling Guide) or (2) $1,000;
(lll) The
Company will transmit full-file credit reporting data for each
Mortgage Loan
pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and for each
Mortgage Loan,
Company agrees it shall report one of the following statuses
each month as
follows: new origination, current, delinquent (30-, 60-, 90-days,
etc.),
foreclosed, or charged-off;
(mmm) Each
Mortgage Loan is eligible for sale in the secondary mortgage
market or for
securitization without unreasonable credit enhancement;
(nnn) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase
money Home Loan,
(2) purchase money Covered Loan (with respect to Mortgage Loans
which were
originated between November 26, 2003 and July 7, 2004), or (3)
a rate/term
refinance Home Loan;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made or caused to be made any payment in the
nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the
Commonwealth of
Massachusetts was made to pay off or refinance an existing loan
or other debt of
the related borrower (as the term "borrower" is defined in the
regulations
promulgated by the Massachusetts Secretary of State in connection
with the
Massachusetts General Laws Chapter 183, Section 28C) unless (a)
the related
Mortgage Interest Rate (that would be effective once the introductory
rate
expires, with respect to Adjustable Rate Mortgage Loans) did
or would not exceed
by more than 2.50% the yield on United States Treasury securities
having
comparable periods of maturity to the maturity of the related
Mortgage Loan as
of the fifteenth day of the month immediately preceding the month
in which the
application for the extension of credit was received by the related
lender or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage
Note provides that
the related Mortgage Interest Rate may not exceed at any time
the Prime rate
index as published in the Wall
Street Journal
plus a
margin of one percent;
and
(rrr) The
origination, servicing and collection practices with respect
to each Mortgage
Note and Mortgage have been legal and in accordance with applicable
laws and
regulations, and in all material respects in accordance with
Accepted Servicing
Practices. The Company further represents and warrants that:
with respect to
escrow deposits and payments that the Company is entitled to
collect, all such
payments are in the possession of, or under the control of, the
Company or its
delegate, and there exist no deficiencies in connection therewith
for which
customary arrangements for repayment thereof have not been made;
all escrow
payments have been collected and are being maintained in full
compliance with
applicable state and federal law and the provisions of the related
Mortgage Note
and Mortgage; as to any Mortgage Loan that is the subject of
an escrow, escrow
of funds is not prohibited by applicable law and has been established
in an
amount sufficient to pay for every escrowed item that remains
unpaid and has
been assessed but is not yet due and payable; no escrow deposits
or other
charges or payments due under the Mortgage Note have been capitalized
under any
Mortgage or the related Mortgage Note; all Mortgage Interest
Rate adjustments
have been made in strict compliance with state and federal law
and the terms of
the related Mortgage Note; and any interest required to be paid
pursuant to
state and local law has been properly paid and credited.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006,
(“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
OwnIt Mortgage Solutions, Inc. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other
valuable
consideration the receipt and sufficiency of which hereby are
acknowledged, and
of the mutual covenants herein contained, the parties hereto
hereby agree as
follows:
I.
Assignment and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee
(x) all of the right, title and interest of the Assignor, as
purchaser, in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated
as of
October 1, 2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement
relates to the
Mortgage Loans and (y) other than as provided below with respect
to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee
hereunder any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase
Agreement
which are not the mortgage loans set forth on the Mortgage Loan
Schedule and are
not the subject of this Agreement.
II.
Recognition of the Company
From
and
after the date hereof, the Company shall and does hereby recognize
that the
Assignee will transfer the Mortgage Loans and assign its rights
under the
Purchase Agreement (solely to the extent set forth herein) and
this Agreement to
MASTR Asset-Backed Securities Trust 2006-HE4 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 2006
(the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust
administrator
(including its successors in interest and any successor servicers
under the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), ▇▇▇▇▇ Fargo
Bank, N.A. and Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing as
servicers (the “Servicers”) and U.S. Bank National Association, as trustee
(including its successors in interest and any successor trustees
under the
Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the
date hereof (i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer
and the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage
Loans, under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches
of
representations and warranties set forth in the Purchase Agreement,
and shall be
entitled to enforce all of the obligations of the Company thereunder
insofar as
they relate to the Mortgage Loans, and (iii) all references to the
Purchaser (insofar as they relate to the rights, title and interest
and, with
respect to obligations of the Purchaser, only insofar as they
relate to the
enforcement of the representations, warranties and covenants
of the Company) or
the Custodian under the Purchase Agreement insofar as they relate
to the
Mortgage Loans, shall be deemed to refer to the Trust (including
the Trustee,
the Trust Administrator, the Master Servicer and the Servicer
acting on the
Trust’s behalf). Neither the Company nor the Assignor shall amend or
agree to
amend, modify, waiver, or otherwise alter any of the terms or
provisions of the
Purchase Agreement which amendment, modification, waiver or other
alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without
the prior
written consent of the Trustee.
III.
Representations and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee
and the Trust as
of the date hereof that:
(a) Attached
hereto as Exhibit
B
is a
true and accurate copy of the representations and warranties
set forth in
Sections 3.01 and 3.02 of the Purchase Agreement, which Purchase
Agreement is in
full force and effect as of the date hereof and the provisions
of which have not
been waived, amended or modified in any respect, nor has any
notice of
termination been given thereunder;
(b) The
Company is duly organized, validly existing and in good standing
under the laws
of the jurisdiction of its incorporation;
(c) The
Company has full power and authority to execute, deliver and
perform its
obligations under this Agreement and has full power and authority
to perform its
obligations under the Purchase Agreement. The execution by the
Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now
a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Company or its property is subject.
The
execution, delivery and performance by the Company of this Agreement
have been
duly authorized by all necessary corporate action on part of
the Company. This
Agreement has been duly executed and delivered by the Company,
and, upon the due
authorization, execution and delivery by the Assignor and the
Assignee, will
constitute the valid and legally binding obligation of the Company,
enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium
or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is considered
in a proceeding in equity or at law;
(d) No
consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be
obtained or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(e) There
is
no action, suit, proceeding or investigation pending or threatened
against the
Company, before any court, administrative agency or other tribunal,
which would
draw into question the validity of this Agreement or the Purchase
Agreement, or
which, either in any one instance or in the aggregate, would
result in any
material adverse change in the ability of the Company to perform
its obligations
under this Agreement or the Purchase Agreement, and the Company
is
solvent.
2. Pursuant
to Section 8.01(b)(iii) of the Purchase Agreement, the Company
hereby represents
and warrants, for the benefit of the Assignor, the Assignee and
the Trust, that
the representations and warranties set forth in Sections 3.01
and 3.02 of the
Purchase Agreement (set forth on Schedule 1 hereto), are true
and correct as of
the date hereof, as if such representations and warranties were
made on such
date.
3. The
Assignor hereby makes the following representations and warranties
as of the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material
respects with
applicable local, state, and federal laws, including, but not
limited to, all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable
predatory and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E); and
(d) No
Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is
governed by the Georgia Fair Lending Act.
In
addition to the foregoing, within 60 days
of
the earlier of discovery by the Assignor or receipt of notice
by the Assignor of
(i) the breach of any representation or warranty of the Company
set forth in
Section 3.02 of the Purchase Agreement which materially and adversely
affects
the interests of the Certificateholders in any of the Mortgage
Loan and for
which the Company has failed to cure such breach in accordance
with the terms of
the Purchase Agreement and (ii)(a) the fact that the Company
is no longer an
operating company or (b) an Officers’ Certificate certifying to the fact that
the Company is financially unable to cure such breach pursuant
to the terms of
the Purchase Agreement, the Assignor shall take such action described
in Section
2.03 of the Pooling Agreement in respect of such Mortgage Loan.
Such obligation
of the Assignor shall continue until such time that the Rating
Agencies inform
the Assignee and the Assignor in writing that such obligation
is no longer
required in order for the Rating Agencies to maintain their then-current
ratings
on the Certificates.
IV.
Remedies for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available
to the
Assignor, the Assignee and the Trust (including the Trustee and
the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth
in Section 3 hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement
as if they
were set forth herein (including without limitation the repurchase
and indemnity
obligations set forth therein). It is understood by the parties
hereto that a
breach of the representations and warranties made in Sections
3.02 (h), (n),
(ee), (pp), (uu), (vv), (ccc), (ggg), (hhh), (iii), (ooo), (kkk)
or (sss) of the
Purchase Agreement shall be deemed to materially and adversely
affect the value
of the related mortgage loan or the interests of the Trust in
the related
mortgage loans.
The
Company
shall
repurchase any Mortgage Loan sold to the
Assignor
for
which the first monthly payment due in
October 2006 or November 2006 becomes
30 days past due (each, a “Delinquent Loan”) or, in lieu of repurchase of a
Delinquent Loan by the
Company, the Assignor and the Company
may
agree to a substitution of another Mortgage Loan for any Delinquent
Loan. Any
such substituted Mortgage Loan will be subject to the
Assignor’s
acceptability. Such
repurchase will be made at the
Repurchase Price (as defined in the Purchase Agreement).
The
Assignor hereby acknowledges and agrees that the remedies available
to the
Assignee and the Trust (including the Trustee and the Master
Servicer acting on
the Trust’s behalf) in connection with any breach of the representations
and
warranties made by the Assignor set forth in Section 3 hereof
shall be as set
forth in Section 2.03 of the Pooling and Servicing Agreement
as if they were set
forth herein (including without limitation the repurchase obligations
set forth
therein). The
Assignor hereby acknowledges and agrees that a breach of any
one of the
representations set forth in Section 5 above will be deemed to
materially
adversely affect the interests of the certificateholders and
shall require a
repurchase of the affected Mortgage Loan(s).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation
of the
Company with respect to any breach of representation and warranty
made by the
Company regarding the Mortgage Loans.
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the
State of New
York, without regard to conflicts of law principles, and the
obligations, rights
and remedies of the parties hereunder shall be determined in
accordance with
such laws.
No
term
or provision of this Agreement may be waived or modified unless
such waiver or
modification is in writing and signed by the party against whom
such waiver or
modification is sought to be enforced, with the prior written
consent of the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and
assigns of the
parties hereto and (ii) the Trust (including the Trustee, the
Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor,
Assignee or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to
the extent
assigned hereunder) by Assignor to Assignee and by Assignee to
the Trust and
nothing contained herein shall supersede or amend the terms of
the Purchase
Agreement.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
In
the
event that any provision of this Agreement conflicts with any
provision of the
Purchase Agreement with respect to the Mortgage Loans, the terms
of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto)
but not defined in
this Agreement shall have the meanings given to such terms in
the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Name:
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Title:
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By:
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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OWNIT
MORTGAGE SOLUTIONS, INC.
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By:
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EXHIBIT
A
Mortgage
Loan Schedule
Available
Upon Request
SCHEDULE
1
Capitalized
terms used herein but not defined in this Schedule 1 shall have
the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that
as of each
Closing Date and as of each Servicing Transfer Date or as of
such date
specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing
under the laws of
California. The Company has all licenses necessary to carry out
its business as
now being conducted, and is licensed and qualified to transact
business in and
is in good standing under the laws of each state in which any
Mortgaged Property
is located or is otherwise exempt under applicable law from such
licensing or
qualification or is otherwise not required under applicable law
to effect such
licensing or qualification and no demand for such licensing or
qualification has
been made upon the Company by any such state, and in any event
the Company is in
compliance with the laws of any such state to the extent necessary
to ensure the
enforceability of each Mortgage Loan and the interim servicing
of the Mortgage
Loans in accordance with the terms of this Agreement. No licenses
or approvals
obtained by the Company have been suspended or revoked by any
court,
administrative agency, arbitrator or governmental body and no
proceedings are
pending which might result in such suspension or revocation;
(b) The
Company has the full power and authority and legal right to hold,
transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver
and perform, and to enter into and consummate all transactions
contemplated by
this Agreement and the related Confirmation and to conduct its
business as
presently conducted; the Company has duly authorized the execution,
delivery and
performance of this Agreement and any agreements contemplated
hereby, has duly
executed and delivered this Agreement and the related Confirmation,
and any
agreements contemplated hereby, and this Agreement and the related
Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements
contemplated
hereby, constitute the legal, valid and binding obligations of
the Company,
enforceable against it in accordance with their respective terms,
except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles
affecting the
enforceability of the rights of creditors; and all requisite
corporate action
has been taken by the Company to make this Agreement, the related
Confirmation
and all agreements contemplated hereby valid and binding upon
the Company in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the
transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and
conditions of this Agreement and the related Confirmation will
conflict with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any
of the terms,
conditions or provisions of any legal restriction or any agreement
or instrument
to which the Company is now a party or by which it is bound,
or constitute a
default or result in an acceleration under any of the foregoing,
or result in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have
a material
adverse effect on the sale of the Mortgage Loans, the execution,
delivery,
performance or enforceability of this Agreement or the related
Confirmation, or
which is reasonably likely to have a material adverse effect
on the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance
by the Company of
or compliance by the Company with this Agreement and the related
Confirmation,
except for consents, approvals, authorizations and orders which
have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement
and the related
Confirmation are in the ordinary course of business of the Company,
and the
transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by
the Company pursuant to this Agreement and the related Confirmation
are not
subject to bulk transfer or any similar statutory provisions
in effect in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect
to each Mortgage
Note and Mortgage have been legal and in accordance with applicable
laws and
regulations, and in all material respects in accordance with
Accepted Servicing
Practices. The Company further represents and warrants that:
with respect to
escrow deposits and payments that the Company is entitled to
collect, all such
payments are in the possession of, or under the control of, the
Company or its
delegate, and there exist no deficiencies in connection therewith
for which
customary arrangements for repayment thereof have not been made;
all escrow
payments have been collected and are being maintained in full
compliance with
applicable state and federal law and the provisions of the related
Mortgage Note
and Mortgage; as to any Mortgage Loan that is the subject of
an escrow, escrow
of funds is not prohibited by applicable law and has been established
in an
amount sufficient to pay for every escrowed item that remains
unpaid and has
been assessed but is not yet due and payable; no escrow deposits
or other
charges or payments due under the Mortgage Note have been capitalized
under any
Mortgage or the related Mortgage Note; all Mortgage Interest
Rate adjustments
have been made in strict compliance with state and federal law
and the terms of
the related Mortgage Note; and any interest required to be paid
to the Mortgagor
pursuant to state and local law has been properly paid and
credited;
(h) The
Company has not used selection procedures that identified the
Mortgage Loans as
being less desirable or valuable than other comparable mortgage
loans in the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the
Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete
set of books
and records for each Mortgage Loan which shall be clearly marked
to reflect the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage
loans for ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac and HUD, with such facilities, procedures
and personnel
necessary for the sound servicing of such mortgage loans. The
Company is duly
qualified, licensed, registered and otherwise authorized under
all applicable
federal, state and local laws and regulations and is in good
standing to sell
mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac and
no event has occurred which would make the Company unable to
comply with
eligibility requirements or which would require notification
to either ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac;
(k) The
Company does not believe, nor does it have any cause or reason
to believe, that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent
and the sale of
the Mortgage Loans will not cause the Company to become insolvent.
The sale of
the Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared
by, or on
behalf of, the Company pursuant to this Agreement, the related
Confirmation or
in connection with the transactions contemplated hereby, contains
any statement
that is inaccurate or misleading in any material respect;
(m) The
consideration received by the Company upon the sale of the Mortgage
Loans
constitutes fair consideration and reasonably equivalent value
for such Mortgage
Loans;
(n) The
Company has delivered to the Initial Purchaser financial statements
as to its
last two complete fiscal years. All such financial statements
fairly present the
pertinent results of operations and changes in financial position
for each of
such periods and the financial position at the end of each such
period of the
Company and its subsidiaries and have been prepared in accordance
with GAAP
consistently applied throughout the periods involved, except
as set forth in the
notes thereto. There has been no change in the business, operations,
financial
condition, properties or assets of the Company since the date
of the Company’s
financial statements that would have a material adverse effect
on its ability to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent
or other person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(p) The
Company is a member of MERS in good standing, and will comply
in all material
respects with the rules and procedures of MERS in connection
with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans
are registered
with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to
each Mortgage
Loan, as of the related Closing Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule,
including any
diskette or other related data tapes sent to the Initial Purchaser,
is complete,
true and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security
interest with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second
lien and second
priority security interest with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien (as reflected on the Mortgage
Loan Schedule),
in either case, in the related Mortgaged Property securing the
related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such
Mortgage Loan have
been made as of the related Closing Date, the Mortgage Loan is
not delinquent in
payment more than 30 days and has not been dishonored; there
are no material
defaults under the terms of the Mortgage Loan; the Company has
not advanced
funds, or induced, solicited or knowingly received any advance
of funds from a
party other than the owner of the Mortgaged Property subject
to the Mortgage,
directly or indirectly, for the payment of any amount required
by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been
delinquent during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer
and municipal
charges, leasehold payments or ground rents which previously
became due and
owing have been paid, or escrow funds have been established in
an amount
sufficient to pay for every such escrowed item which remains
unpaid and which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or
modified in any respect, except by written instruments which
have been recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor
has been
released, in whole or in part, from the terms thereof except
in connection with
an assumption agreement and which assumption agreement is part
of the Mortgage
File and the terms of which are reflected in the related Mortgage
Loan Schedule;
the substance of any such waiver, alteration or modification
has been approved
by the issuer of any related title insurance policy, to the extent
required by
the related policy.
(f) The
Mortgage Note and the Mortgage are not subject to any right of
rescission,
set-off, counterclaim or defense, including, without limitation,
the defense of
usury, nor will the operation of any of the terms of the Mortgage
Note or the
Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any
right of
rescission, set-off, counterclaim or defense, including the defense
of usury,
and no such right of rescission, set-off, counterclaim or defense
has been
asserted with respect thereto; and the Mortgagor was not a debtor
in any state
or federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the
Mortgaged Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ Mae Guides,
against loss
by fire, hazards of extended coverage and such other hazards
as are provided for
in the ▇▇▇▇▇▇ ▇▇▇ Guides or by the ▇▇▇▇▇▇▇ Mac Guides, in an
amount representing
coverage not less than the lesser of (i) the maximum insurable
value of the
improvements securing such Mortgage Loans, and (ii) the greater
of (a) either
(1) the outstanding principal balance of the Mortgage Loan with
respect to each
Mortgage Loan which is indicated by the Company to be a First
Lien (as reflected
on the Mortgage Loan Schedule) or (2) with respect to each Second
Lien Mortgage
Loan, the sum of the outstanding principal balance of the first
lien on such
Mortgage Loan and the outstanding principal balance of such Second
Lien Mortgage
Loan, and (b) an amount such that the proceeds thereof shall
be sufficient to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer,
but in no
event greater than the maximum amount permitted under applicable
law. All such
standard hazard policies are in full force and effect and on
the date of
origination contained a standard mortgagee clause naming the
Company and its
successors in interest and assigns as loss payee and such clause
is still in
effect and all premiums due thereon have been paid. If required
by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan
is covered by a
flood insurance policy meeting the requirements of the current
guidelines of the
Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇
Mac requirements, in an amount not less than the amount required
by the Flood
Disaster Protection Act of 1973, as amended. Such policy was
issued by an
insurer acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines.
The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance
at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Each
Mortgage Loan and, if any, the related prepayment penalty complied
in all
material respects with any and all requirements of any federal,
state or local
law including, without limitation, usury, truth in lending, real
estate
settlement procedures, consumer credit protection, equal credit
opportunity,
fair housing, disclosure, or predatory, fair and abusive lending
laws applicable
to the origination and servicing of loans of a type similar to
the Mortgage
Loans and the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other
than the
subordination of any Second Lien Mortgage Loan to the related
First Lien), in
whole or in part, or rescinded, and the Mortgaged Property has
not been released
from the lien of the Mortgage, in whole or in part nor has any
instrument been
executed that would effect any such release, cancellation, subordination
or
rescission. The Company has not waived the performance by the
Mortgagor of any
action, if the Mortgagor’s failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any
default resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected
(A) first
lien and first priority security interest with respect to each
Mortgage Loan
which is indicated by the Company to be a First Lien (as reflected
on the
Mortgage Loan Schedule), or (B) second lien and second priority
security
interest with respect to each Mortgage Loan which is indicated
by the Company to
be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule), in
either case, on the Mortgaged Property including all buildings
on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to
the foregoing
securing the Mortgage Note’s original principal balance. The Mortgage and the
Mortgage Note do not contain any evidence of any security interest
or other
interest or right thereto. Such lien is free and clear of all
adverse claims,
liens and encumbrances having priority over the first lien of
the Mortgage
subject only to (1) the lien of non-delinquent current real property
taxes and
assessments not yet due and payable, (2) covenants, conditions
and restrictions,
rights of way, easements and other matters of the public record
as of the date
of recording which are acceptable to mortgage lending institutions
generally and
either (A) which are referred to or otherwise considered in the
appraisal made
for the originator of the Mortgage Loan, or (B) which do not
adversely affect
the appraised value of the Mortgaged Property as set forth in
such appraisal,
(3) other matters to which like properties are commonly subject
which do not
materially interfere with the benefits of the security intended
to be provided
by the Mortgage or the use, enjoyment, value or marketability
of the related
Mortgaged Property and (4) with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien Mortgage Loan (as reflected
on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security
agreement,
chattel mortgage or equivalent document related to and delivered
in connection
with the Mortgage Loan establishes and creates a valid, subsisting,
enforceable
and perfected (A) first lien and first priority security interest
with respect
to each Mortgage Loan which is indicated by the Company to be
a First Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien
and second priority
security interest with respect to each Mortgage Loan which is
indicated by the
Company to be a Second Lien Mortgage Loan (as reflected on the
Mortgage Loan
Schedule), in either case, on the property described therein,
and the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine
and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy,
insolvency,
moratorium, reorganization and other laws of general application
affecting the
rights of creditors and by general equitable principles and the
Company has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage
had the legal
capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have
been duly and
properly executed by such parties. No fraud, error, omission,
misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan
has taken place
on the part of the Company or the Mortgagor, or, on the part
of any other party
involved in the origination or servicing of the Mortgage Loan.
The proceeds of
the Mortgage Loan have been fully disbursed and there is no requirement
for
future advances thereunder, and any and all requirements as to
completion of any
on-site or off-site improvements and as to disbursements of any
escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in
making or closing the Mortgage Loan and the recording of the
Mortgage were paid
or are in the process of being paid, and the Mortgagor is not
entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage
Loan and the
indebtedness evidenced by the Mortgage Note, and upon recordation
the Purchaser
or its designee will be the owner of record of the Mortgage and
the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage
Loan to the
Purchaser, the Company will retain the Servicing File in trust
for the Purchaser
only for the purpose of interim servicing and supervising the
interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including
the Mortgage
Note and the Mortgage, were not subject to an assignment or pledge,
and the
Company had good and marketable title to and was the sole owner
thereof and had
full right to transfer and sell the Mortgage Loan to the Purchaser
free and
clear of any encumbrance, equity, lien, pledge, charge, claim
or security
interest and has the full right and authority subject to no interest
or
participation of, or agreement with, any other party, to sell
and assign the
Mortgage Loan pursuant to this Agreement and following the sale
of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear
of any
encumbrance, equity, participation interest, lien, pledge, charge,
claim or
security interest. The Company intends to relinquish all rights
to possess,
control and monitor the Mortgage Loan, except for the purposes
of interim
servicing the Mortgage Loan as set forth in this Agreement. Either
the Mortgagor
is a natural person or the Mortgagor is an inter-vivos trust
acceptable to
▇▇▇▇▇▇ Mae. With respect to each inter-vivos trust, holding title
to the
Mortgaged Property in such trust will not diminish any rights
as a creditor
including the right to full title to the Mortgaged Property in
the event
foreclosure proceedings are initiated;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and qualified
to do
business in the jurisdiction where the Mortgaged Property is
located, insuring
(subject to the exceptions contained in (j)(1), (2) and (3) above
and, with
respect to each Mortgage Loan which is indicated by the Company
to be a Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule)
clause (4)) the
Company, its successors and assigns, as to the first (or, where
applicable,
second) priority lien of the Mortgage in the original principal
amount of the
Mortgage Loan and, with respect to each Adjustable Rate Mortgage
Loan, against
any loss by reason of the invalidity or unenforceability of the
lien resulting
from the provisions of the Mortgage providing for adjustment
in the Mortgage
Interest Rate and Monthly Payment. Additionally, such policy
affirmatively
insures ingress and egress to and from the Mortgaged Property.
Where required by
applicable state law or regulation, the Mortgagor has been given
the opportunity
to choose the carrier of the required mortgage title insurance.
The Company, its
successors and assigns, are the sole insureds of such lender’s title insurance
policy, such title insurance policy has been duly and validly
endorsed to the
Purchaser or the assignment to the Purchaser of the Company’s interest therein
does not require the consent of or notification to the insurer
and such lender’s
title insurance policy is in full force and effect and will be
in full force and
effect upon the consummation of the transactions contemplated
by this Agreement
and the related Confirmation. No claims have been made under
such lender’s title
insurance policy, and no prior holder of the related Mortgage,
including the
Company, has done, by act or omission, anything which would impair
the coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing
under the
Mortgage or the related Mortgage Note and no event which, with
the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default,
breach,
violation or event permitting acceleration. With respect to each
Mortgage Loan
which is indicated by the Company to be a Second Lien Mortgage
Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is
in full force and
effect, (ii) there is no default, breach, violation or event
of acceleration
existing under such First Lien mortgage or the related mortgage
note, (iii)
either no consent for the Mortgage Loan is required by the holder
of the First
Lien or such consent has been obtained and is contained in the
Mortgage File,
(iv) to the best of Company’s knowledge, no event has occurred which, with the
passage of time or with notice and the expiration of any grace
or cure period,
would constitute a default, breach, violation or event of acceleration
thereunder, and either (A) the First Lien mortgage contains a
provision which
allows or (B) applicable law requires, the mortgagee under the
Second Lien
Mortgage Loan to receive notice of, and affords such mortgagee
an opportunity to
cure any default by payment in full or otherwise under the First
Lien mortgage,
and (v) such Second Lien Mortgage Loan is secured by a one- to
four-family
residence that is the principal residence of the Mortgagor;
(o) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could
give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in
determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and
building restriction lines of the Mortgaged Property (and wholly
within the
project with respect to a condominium unit) and no improvements
on adjoining
properties encroach upon the Mortgaged Property except those
which are insured
against by the title insurance policy referred to in clause (m)
above and all
improvements on the property comply with all applicable zoning
and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage
Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage
Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on
forms generally
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Company is currently
selling loans
to ▇▇▇▇▇▇ Mae and/or ▇▇▇▇▇▇▇ Mac which are the same document
forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage
Loan bears
interest at the Mortgage Interest Rate set forth in the related
Mortgage Loan
Schedule, and Monthly Payments under the Mortgage Note are due
and payable on
the first day of each month. The Mortgage contains the usual
and enforceable
provisions of the originator at the time of origination for the
acceleration of
the payment of the unpaid principal amount of the Mortgage Loan
if the related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(r) To
the
best of Company’s knowledge, the Mortgaged Property is not subject to any
material damage by waste, fire, earthquake, windstorm, flood
or other casualty,
and is in good repair. At origination of the Mortgage Loan there
was, and there
currently is, no proceeding pending for the total or partial
condemnation of the
Mortgaged Property. There have not been any condemnation proceedings
with
respect to the Mortgaged Property and there are no such proceedings
scheduled to
commence at a future date;
(s) The
related Mortgage contains customary and enforceable provisions
such as to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided thereby.
There is no homestead or other exemption available to the Mortgagor
which would
interfere with the right to sell the Mortgaged Property at a
trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and
duly qualified
if required under applicable law to act as such, has been properly
designated
and currently so serves and is named in the Mortgage, and no
fees or expenses
are or will become payable by the Purchaser to the trustee under
the deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged
Property which, (a)
with respect to First Lien Mortgage Loans, was on appraisal form
1004 or form
2055 with an interior inspection, or (b) with respect to Second
Lien Mortgage
Loans, was on appraisal form 704, 2065 or 2055 with an exterior
only inspection,
and (c) with respect to (a) or (b) above, was signed prior to
the final approval
of the mortgage loan application by a Qualified Appraiser, who
had no interest,
direct or indirect, in the Mortgaged Property or in any loan
made on the
security thereof, and whose compensation is not affected by the
approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy
the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and Title XI of
FIRREA and the
regulations promulgated thereunder, all as in effect on the date
the Mortgage
Loan was originated. The appraisal is in a form acceptable to
▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether
as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in
which they held
and disposed of such interest, were) (A) in compliance with any
and all
applicable licensing requirements of the laws of the state wherein
the Mortgaged
Property is located, and (B) (1) organized under the laws of
such state, or (2)
qualified to do business in such state, or (3) federal savings
and loan
associations or national banks or a Federal Home Loan Bank or
savings bank
having principal offices in such state, or (4) not doing business
in such
state;
(w) The
related Mortgage Note is not and has not been secured by any
collateral except
the lien of the corresponding Mortgage and the security interest
of any
applicable security agreement or chattel mortgage referred to
in (j) above and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no
Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent
and the
Company has no knowledge of any circumstances or condition with
respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors
to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become
delinquent, or materially adversely affect the value or marketability
of the
Mortgage Loan;
(aa) Principal
payments on the Mortgage Loan commenced no more than sixty (60)
days after the
funds were disbursed in connection with the Mortgage Loan. The
Mortgage Loans
have an original term to maturity of not more than 30 years,
with interest
payable in arrears on the first day of each month. Each Mortgage
Note requires a
monthly payment which is sufficient to fully amortize the original
principal
balance over the original term thereof (other than during the
interest-only
period with respect to a Mortgage Loan identified on the related
Mortgage Loan
Schedule as an interest-only Mortgage Loan) and to pay interest
at the related
Mortgage Interest Rate. With respect to each Mortgage Loan identified
on the
Mortgage Loan Schedule as an interest-only Mortgage Loan, the
interest-only
period does not exceed ten (10) years (or such lesser period
specified on the
Mortgage Loan Schedule) and following the expiration of such
interest-only
period, the remaining Monthly Payments shall be sufficient to
fully amortize the
original principal balance over the remaining term of the Mortgage
Loan. No
Mortgage Loan contains terms or provisions which would result
in negative
amortization. No Mortgage Loan provides for the capitalization
or forbearance of
interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance
policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment
of Mortgage is
in recordable form and is acceptable for recording under the
laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the
related Mortgage
Loan Schedule and consists of a single parcel of real property
with a detached
single family residence erected thereon, or a townhouse, or a
two-to four-family
dwelling, or an individual condominium unit in a condominium
project, or an
individual unit in a planned unit development or a de minimis
planned unit
development, provided, however, that no residence or dwelling
is a single parcel
of real property with a cooperative housing corporation erected
thereon, or a
mobile home. As of the date of origination, no portion of the
Mortgaged Property
was used for commercial purposes, and since the date or origination
no portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the
Mortgage Loans are
subject to a Prepayment Penalty. For any Mortgage Loan originated
prior to
October 1, 2002 that is subject to a Prepayment Penalty, such
prepayment penalty
does not extend beyond five years after the date of origination.
For any
Mortgage Loan originated on or following October 1, 2002 that
is subject to a
Prepayment Penalty, such prepayment penalty does not extend beyond
three years
after the date of origination. Any such prepayment penalty is
permissible and
enforceable in accordance with its terms upon the Mortgagor’s full and voluntary
principal prepayment under applicable law. With respect to any
Mortgage Loan
that contains a provision permitting imposition of a penalty
upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit
to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such
a prepayment
penalty; (ii) the Mortgage Loan’s originator had a written policy of offering
the Mortgagor, or requiring third-party brokers to offer the
Mortgagor, the
option of obtaining a Mortgage Loan that did not require payment
of such a
prepayment penalty and the Mortgagor was offered such a product
by the Mortgage
Loan’s originator; (iii) the prepayment penalty was adequately disclosed
to the
Mortgagor in the loan documents pursuant to applicable state
and federal law;
and (iv) such prepayment penalty shall not be imposed in any
instance where the
Mortgage Loan is accelerated or paid off in connection with the
workout of a
delinquent mortgage or due to the Mortgagor’s default, notwithstanding that the
terms of the Mortgage Loan or state or federal law might permit
the imposition
of such a prepayment penalty;
(ff) The
Mortgaged Property is lawfully occupied under applicable law,
and all
inspections, licenses and certificates required to be made or
issued with
respect to all occupied portions of the Mortgaged Property and,
with respect to
the use and occupancy of the same, including but not limited
to certificates of
occupancy and fire underwriting certificates, have been made
or obtained from
the appropriate authorities;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium
or planned unit
development project meets the eligibility requirements of ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇
Mac;
(hh)
There is
no pending action or proceeding directly involving the Mortgaged
Property in
which compliance with any environmental law, rule or regulation
is an issue;
there is no violation of any environmental law, rule or regulation
with respect
to the Mortgaged Property; and nothing further remains to be
done to satisfy in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(ii) The
Mortgagor has not notified the Company requesting relief under
the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act,
and
the Company has no knowledge of any relief requested or allowed
to the Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or
rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related
Closing Date
which has resulted or will result in an exclusion from, denial
of, or defense to
coverage under any insurance policy related to a Mortgage Loan
(including,
without limitation, any exclusions, denials or defenses which
would limit or
reduce the availability of the timely payment of the full amount
of the loss
otherwise due thereunder to the insured) whether arising out
of actions,
representations, errors, omissions, negligence, or fraud, or
for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association,
a savings bank,
a commercial bank, a credit union, an insurance company, or similar
institution
which is supervised and examined by a federal or state authority,
or by a
mortgagee approved by the Secretary of HUD pursuant to Sections
203 and 211 of
the National Housing Act;
(mm) No
Mortgaged Property is subject to a ground lease;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly assessed to the Mortgagor and
no claims will
arise as to broker fees that are double charged and for which
the Mortgagor
would be entitled to reimbursement;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been
delivered to the
Purchaser certifying that the original Mortgage Note has been
lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently
in default, the
enforcement of such Mortgage Loan will not be materially adversely
affected by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the
Assignment of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit
A-1 and
required to be delivered on the related Closing Date have been
delivered to the
Purchaser or its designee all in compliance with the specific
requirements of
this Agreement. With respect to each Mortgage Loan, the Company
is in possession
of a complete Mortgage File and Servicing File except for such
documents as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor
is true,
accurate and complete and does not contain any statement that
is inaccurate or
misleading in any material respect;
(ss)
There
does not exist on the related Mortgaged Property any hazardous
substances,
hazardous wastes or solid wastes, as such terms are defined in
the Comprehensive
Environmental Response Compensation and Liability Act, the Resource
Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination
of more than
95% and no Mortgage Loan had a Combined Loan-to-Value Ratio at
the time of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of
the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
law, including any predatory or abusive lending laws (or a similarly
classified
loan using different terminology under a law imposing heightened
regulatory
scrutiny or additional legal liability for a residential mortgage
loan having
high interest rates, points and/or fees), (c) a High Cost Loan
or Covered Loan,
as applicable (as such terms are defined in the current version
of Standard
& Poor’s LEVELS® Glossary, Appendix E) or (d) in violation of any state law
or ordinance comparable to HOEPA. No Mortgage Loan (including
purchase money
loans or refinance transactions) has an “annual percentage rate” or “total
points and fees” payable by the Mortgagor (as each such term is defined under
HOEPA) that equal or exceed the applicable thresholds defined
under HOEPA
(Section 32 of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i)
and
(ii));
(vv) No
Mortgagor was required to purchase any credit life, disability,
accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit.
No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection
with the
origination of the Mortgage Loan; No proceeds from any Mortgage
Loan were used
to purchase or finance single-premium insurance policies or debt
cancellation
agreements as part of the origination of or as a condition to
closing, such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related
Closing Date have
been consolidated with the outstanding principal amount secured
by the Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate
and single repayment term. The lien of the Mortgage securing
the consolidated
principal amount is expressly insured as having (A) first lien
priority with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien priority
with respect to each Mortgage Loan which is indicated by the
Company to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Data Transmission),
in either case, by a title insurance policy, an endorsement to
the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal
amount does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day
year consisting of
twelve 30-day months;
(yy) No
Mortgage Loan is a Balloon Mortgage Loan. No Mortgage Loan is
a Convertible
Mortgage Loan;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by
MERS and such MIN
is accurately provided on the related Mortgage Loan Schedule.
The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received
any notice of
liens or legal actions with respect to such Mortgage Loan and
no such notices
have been electronically posted by MERS;
(bbb) Reserved;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately
furnished
complete information (e.g., favorable and unfavorable) on the
related borrower
credit files to Equifax, Experian and Trans Union Credit Information
Company
(three of the credit repositories), in accordance with the Fair
Credit Reporting
Act and its implementing regulations, on a monthly basis;
(ddd) The
Company has complied with all applicable anti-money laundering
laws and
regulations, including without limitation the USA Patriot Act
of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program
as required
by the Anti-Money Laundering Laws, has conducted the requisite
due diligence in
connection with the origination of each Mortgage Loan for purposes
of the
Anti-Money Laundering Laws, including with respect to the legitimacy
of the
applicable Mortgagor and the origin of the assets used by the
said Mortgagor to
purchase the property in question, and maintains, and will maintain,
sufficient
information to identify the applicable Mortgagor for purposes
of the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification
pursuant to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department
of the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions
of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage
Loan the related
first lien does not contain any term that could result in negative
amortization;
(fff) No
predatory or deceptive lending practices, including but not limited
to, the
extension of credit to the applicable Mortgagor without regard
for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to
said Mortgagor which has no apparent benefit to said Mortgagor,
were employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending
eligibility for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied
manufactured
home located in the State of Georgia was originated (or modified)
on or after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgagor was encouraged or required to select a Mortgage Loan
product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as,
without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing
through the
Mortgage Loan originator’s higher priced sub-prime lending channel was directed
towards or offered the Mortgage Loan’s originator standard mortgage line if the
Borrower was able to qualify for one of the standard products.
If, at the time
of loan application, the Mortgagor may have qualified for a lower
cost credit
product then offered by any mortgage lending affiliate of the
Mortgage Loan’s
originator, the Mortgage Loan’s originator referred the Mortgagor’s application
to such affiliate for underwriting consideration;
(iii) The
methodology used in underwriting the extension of credit for
each Mortgage Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension
of credit. The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based
on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make
timely payments
on the Mortgage Loan;
(jjj) Reserved;
(kkk) All
points, fees and charges (including finance charges) and whether
or not
financed, assessed, collected or to be collected in connection
with the
origination and servicing of each Mortgage Loan have been disclosed
in writing
to the Mortgagor in accordance with applicable state and federal
law and
regulation. No Mortgagor was charged “points and fees” (whether or not financed)
in an amount that exceeds the greater of (1) 5% of the principal
amount of such
Mortgage Loan (such 5% limitation is calculated in accordance
with ▇▇▇▇▇▇ Mae’s
requirements as set forth in the ▇▇▇▇▇▇ Mae Selling Guide) or
(2) $1,000. For
purposes of this representation, “points and fees” (x) include origination,
underwriting, broker and finder’s fees and charges that the lender imposed as a
condition of making the Mortgage Loan, whether they are paid
to the lender or a
third party; and (y) exclude bona fide discount points, fees
paid for actual
services rendered in connection with the origination of the Mortgage
(such as
attorneys’ fees, notaries fees and fees paid for property appraisals, credit
reports, surveys, title examinations and extracts, flood and
tax certifications,
and home inspections); the cost of mortgage insurance or credit-risk
price
adjustments; the costs of title, hazard, and flood insurance
policies; state and
local transfer taxes or fees; escrow deposits for the future
payment of taxes
and insurance premiums; and other miscellaneous fees and charges,
which
miscellaneous fees and charges, in total, do not exceed 0.25
percent of the loan
amount;
(lll) The
Company will transmit full-file credit reporting data for each
Mortgage Loan
pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and for each
Mortgage Loan,
Company agrees it shall report one of the following statuses
each month as
follows: new origination, current, delinquent (30-, 60-, 90-days,
etc.),
foreclosed, or charged-off;
(mmm) Reserved;
(nnn) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase
money Home Loan,
(2) purchase money Covered Loan (with
respect to Mortgage Loans which were originated between November
26, 2003 and
July 7, 2004),
or (3)
a rate/term refinance Home Loan;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made or caused to be made any payment in the
nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the
Commonwealth of
Massachusetts was made to pay off or refinance an existing loan
or other debt of
the related borrower (as the term "borrower" is defined in the
regulations
promulgated by the Massachusetts Secretary of State in connection
with the
Massachusetts General Laws Chapter 183, Section 28C) unless (a)
the related
Mortgage Interest Rate (that would be effective once the introductory
rate
expires, with respect to Adjustable Rate Mortgage Loans) did
or would not exceed
by more than 2.50% the yield on United States Treasury securities
having
comparable periods of maturity to the maturity of the related
Mortgage Loan as
of the fifteenth day of the month immediately preceding the month
in which the
application for the extension of credit was received by the related
lender or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage
Note provides that
the related Mortgage Interest Rate may not exceed at any time
the Prime rate
index as published in the Wall
Street Journal
plus a
margin of one percent;
(rrr) Reserved;
and
(sss) With
respect to each Mortgage Loan, the related residential dwelling
is not a
manufactured housing unit.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006,
(“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
LIME Financial Services, Ltd. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other
valuable
consideration the receipt and sufficiency of which hereby are
acknowledged, and
of the mutual covenants herein contained, the parties hereto
hereby agree as
follows:
I.
Assignment and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee
(x) all of the right, title and interest of the Assignor, as
purchaser, in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated
as of August
1, 2006,
as
amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement
relates to the
Mortgage Loans and (y) other than as provided below with respect
to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee
hereunder any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase
Agreement
which are not the mortgage loans set forth on the Mortgage Loan
Schedule and are
not the subject of this Agreement.
II.
Recognition of the Company
From
and
after the date hereof, the Company shall and does hereby recognize
that the
Assignee will transfer the Mortgage Loans and assign its rights
under the
Purchase Agreement (solely to the extent set forth herein) and
this Agreement to
MASTR Asset-Backed Securities Trust 2006-HE4 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 2006
(the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust
administrator
(including its successors in interest and any successor servicers
under the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), ▇▇▇▇▇ Fargo
Bank, N.A. and Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing as
servicers (the “Servicers”) and U.S. Bank National Association, as trustee
(including its successors in interest and any successor trustees
under the
Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the
date hereof (i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer
and the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage
Loans, under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches
of
representations and warranties set forth in the Purchase Agreement,
and shall be
entitled to enforce all of the obligations of the Company thereunder
insofar as
they relate to the Mortgage Loans, and (iii) all references to the
Purchaser (insofar as they relate to the rights, title and interest
and, with
respect to obligations of the Purchaser, only insofar as they
relate to the
enforcement of the representations, warranties and covenants
of the Company) or
the Custodian under the Purchase Agreement insofar as they relate
to the
Mortgage Loans, shall be deemed to refer to the Trust (including
the Trustee,
the Trust Administrator, the Master Servicer and the Servicer
acting on the
Trust’s behalf). Neither the Company nor the Assignor shall amend or
agree to
amend, modify, waiver, or otherwise alter any of the terms or
provisions of the
Purchase Agreement which amendment, modification, waiver or other
alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without
the prior
written consent of the Trustee.
III.
Representations and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee
and the Trust as
of the date hereof that:
(a) Attached
hereto as Exhibit
B
is a
true and accurate copy of the representations and warranties
set forth in
Sections 3.01 and 3.02 of the Purchase Agreement, which Purchase
Agreement is in
full force and effect as of the date hereof and the provisions
of which have not
been waived, amended or modified in any respect, nor has any
notice of
termination been given thereunder;
(b) The
Company is duly organized, validly existing and in good standing
under the laws
of the jurisdiction of its incorporation;
(c) The
Company has full power and authority to execute, deliver and
perform its
obligations under this Agreement and has full power and authority
to perform its
obligations under the Purchase Agreement. The execution by the
Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now
a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Company or its property is subject.
The
execution, delivery and performance by the Company of this Agreement
have been
duly authorized by all necessary corporate action on part of
the Company. This
Agreement has been duly executed and delivered by the Company,
and, upon the due
authorization, execution and delivery by the Assignor and the
Assignee, will
constitute the valid and legally binding obligation of the Company,
enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium
or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is considered
in a proceeding in equity or at law;
(d) No
consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be
obtained or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(e) There
is
no action, suit, proceeding or investigation pending or threatened
against the
Company, before any court, administrative agency or other tribunal,
which would
draw into question the validity of this Agreement or the Purchase
Agreement, or
which, either in any one instance or in the aggregate, would
result in any
material adverse change in the ability of the Company to perform
its obligations
under this Agreement or the Purchase Agreement, and the Company
is
solvent.
2. Pursuant
to Section 8.01(b)(iii) of the Purchase Agreement, the Company
hereby represents
and warrants, for the benefit of the Assignor, the Assignee and
the Trust, that
the representations and warranties set forth in Sections 3.01
and 3.02 of the
Purchase Agreement (set forth on Schedule 1 hereto), are true
and correct as of
the date hereof, as if such representations and warranties were
made on such
date.
3. The
Assignor hereby makes the following representations and warranties
as of the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material
respects with
applicable local, state, and federal laws, including, but not
limited to, all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable
predatory and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E); and
(d) No
Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is
governed by the Georgia Fair Lending Act.
In
addition to the foregoing, within 60 days
of
the earlier of discovery by the Assignor or receipt of notice
by the Assignor of
(i) the breach of any representation or warranty of the Company
set forth in
Section 3.02 of the Purchase Agreement which materially and adversely
affects
the interests of the Certificateholders in any of the Mortgage
Loan and for
which the Company has failed to cure such breach in accordance
with the terms of
the Purchase Agreement and (ii)(a) the fact that the Company
is no longer an
operating company or (b) an Officers’ Certificate certifying to the fact that
the Company is financially unable to cure such breach pursuant
to the terms of
the Purchase Agreement, the Assignor shall take such action described
in Section
2.03 of the Pooling Agreement in respect of such Mortgage Loan.
Such obligation
of the Assignor shall continue until such time that the Rating
Agencies inform
the Assignee and the Assignor in writing that such obligation
is no longer
required in order for the Rating Agencies to maintain their then-current
ratings
on the Certificates.
IV.
Remedies for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available
to the
Assignor, the Assignee and the Trust (including the Trustee and
the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth
in Section 3 hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement
as if they
were set forth herein (including without limitation the repurchase
and indemnity
obligations set forth therein). It is understood by the parties
hereto that a
breach of the representations and warranties made in Sections
Sections 3.02 (h),
(n), (ee), (pp), (uu), (vv), (ccc), (ggg), (hhh), (iii), (jjj),
(ooo), (rrr) or
(sss) of the Purchase Agreement shall be deemed to materially
and adversely
affect the value of the related mortgage loan or the interests
of the Trust in
the related mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available
to the
Assignee and the Trust (including the Trustee and the Master
Servicer acting on
the Trust’s behalf) in connection with any breach of the representations
and
warranties made by the Assignor set forth in Section 3 hereof
shall be as set
forth in Section 2.03 of the Pooling and Servicing Agreement
as if they were set
forth herein (including without limitation the repurchase obligations
set forth
therein). The
Assignor hereby acknowledges and agrees that a breach of any
one of the
representations set forth in Section 5 above will be deemed to
materially
adversely affect the interests of the certificateholders and
shall require a
repurchase of the affected Mortgage Loan(s).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation
of the
Company with respect to any breach of representation and warranty
made by the
Company regarding the Mortgage Loans.
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the
State of New
York, without regard to conflicts of law principles, and the
obligations, rights
and remedies of the parties hereunder shall be determined in
accordance with
such laws.
No
term
or provision of this Agreement may be waived or modified unless
such waiver or
modification is in writing and signed by the party against whom
such waiver or
modification is sought to be enforced, with the prior written
consent of the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and
assigns of the
parties hereto and (ii) the Trust (including the Trustee, the
Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor,
Assignee or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to
the extent
assigned hereunder) by Assignor to Assignee and by Assignee to
the Trust and
nothing contained herein shall supersede or amend the terms of
the Purchase
Agreement.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
In
the
event that any provision of this Agreement conflicts with any
provision of the
Purchase Agreement with respect to the Mortgage Loans, the terms
of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto)
but not defined in
this Agreement shall have the meanings given to such terms in
the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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Title:
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LIME
FINANCIAL SERVICES, LTD.
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EXHIBIT
A
Mortgage
Loan Schedule
Available
Upon Request
SCHEDULE
1
Capitalized
terms used herein but not defined in this Schedule 1 shall have
the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that
as of each
Closing Date and as of each Servicing Transfer Date or as of
such date
specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing
under the laws of
Oregon. The Company has all licenses necessary to carry out its
business as now
being conducted, and is licensed and qualified to transact business
in and is in
good standing under the laws of each state in which any Mortgaged
Property is
located or is otherwise exempt under applicable law from such
licensing or
qualification or is otherwise not required under applicable law
to effect such
licensing or qualification and no demand for such licensing or
qualification has
been made upon the Company by any such state, and in any event
the Company is in
compliance with the laws of any such state to the extent necessary
to ensure the
enforceability of each Mortgage Loan and the interim servicing
of the Mortgage
Loans in accordance with the terms of this Agreement. No licenses
or approvals
obtained by the Company have been suspended or revoked by any
court,
administrative agency, arbitrator or governmental body and no
proceedings are
pending which might result in such suspension or revocation;
(b) The
Company has the full power and authority and legal right to hold,
transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver
and perform, and to enter into and consummate all transactions
contemplated by
this Agreement and the related Confirmation and to conduct its
business as
presently conducted; the Company has duly authorized the execution,
delivery and
performance of this Agreement and any agreements contemplated
hereby, has duly
executed and delivered this Agreement and the related Confirmation,
and any
agreements contemplated hereby, and this Agreement and the related
Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements
contemplated
hereby, constitute the legal, valid and binding obligations of
the Company,
enforceable against it in accordance with their respective terms,
except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles
affecting the
enforceability of the rights of creditors; and all requisite
corporate action
has been taken by the Company to make this Agreement, the related
Confirmation
and all agreements contemplated hereby valid and binding upon
the Company in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the
transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and
conditions of this Agreement and the related Confirmation will
conflict with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any
of the terms,
conditions or provisions of any legal restriction or any agreement
or instrument
to which the Company is now a party or by which it is bound,
or constitute a
default or result in an acceleration under any of the foregoing,
or result in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have
a material
adverse effect on the sale of the Mortgage Loans, the execution,
delivery,
performance or enforceability of this Agreement or the related
Confirmation, or
which is reasonably likely to have a material adverse effect
on the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance
by the Company of
or compliance by the Company with this Agreement and the related
Confirmation,
except for consents, approvals, authorizations and orders which
have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement
and the related
Confirmation are in the ordinary course of business of the Company,
and the
transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by
the Company pursuant to this Agreement and the related Confirmation
are not
subject to bulk transfer or any similar statutory provisions
in effect in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect
to each Mortgage
Note and Mortgage have been legal and in accordance with applicable
laws and
regulations, and in all material respects in accordance with
Accepted Servicing
Practices. The Company further represents and warrants that:
with respect to
escrow deposits and payments that the Company is entitled to
collect, all such
payments are in the possession of, or under the control of, the
Company or its
delegate, and there exist no deficiencies in connection therewith
for which
customary arrangements for repayment thereof have not been made;
all escrow
payments have been collected and are being maintained in full
compliance with
applicable state and federal law and the provisions of the related
Mortgage Note
and Mortgage; as to any Mortgage Loan that is the subject of
an escrow, escrow
of funds is not prohibited by applicable law and has been established
in an
amount sufficient to pay for every escrowed item that remains
unpaid and has
been assessed but is not yet due and payable; no escrow deposits
or other
charges or payments due under the Mortgage Note have been capitalized
under any
Mortgage or the related Mortgage Note; all Mortgage Interest
Rate adjustments
have been made in strict compliance with state and federal law
and the terms of
the related Mortgage Note; and any interest required to be paid
pursuant to
state and local law has been properly paid and credited;
(h) The
Company has not used selection procedures that identified the
Mortgage Loans as
being less desirable or valuable than other comparable mortgage
loans in the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the
Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete
set of books
and records for each Mortgage Loan which shall be clearly marked
to reflect the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage
loans for HUD,
with such facilities, procedures and personnel necessary for
the sound servicing
of such mortgage loans. The Company is duly qualified, licensed,
registered and
otherwise authorized under all applicable federal, state and
local laws and
regulations;
(k) The
Company does not believe, nor does it have any cause or reason
to believe, that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent
and the sale of
the Mortgage Loans will not cause the Company to become insolvent.
The sale of
the Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared
by, or on
behalf of, the Company pursuant to this Agreement, the related
Confirmation or
in connection with the transactions contemplated hereby, contains
or will
contain any statement that is or will be inaccurate or misleading
in any
material respect. The Company has prudently originated and underwritten
each
Mortgage Loan;
(m) The
consideration received by the Company upon the sale of the Mortgage
Loans
constitutes fair consideration and reasonably equivalent value
for such Mortgage
Loans;
(n) The
Company has delivered to the Initial Purchaser financial statements
as to its
last two complete fiscal years. All such financial statements
fairly present the
pertinent results of operations and changes in financial position
for each of
such periods and the financial position at the end of each such
period of the
Company and its subsidiaries and have been prepared in accordance
with GAAP
consistently applied throughout the periods involved, except
as set forth in the
notes thereto. There has been no change in the business, operations,
financial
condition, properties or assets of the Company since the date
of the Company’s
financial statements that would have a material adverse effect
on its ability to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent
or other person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(p) The
Company is a member of MERS in good standing, and will comply
in all material
respects with the rules and procedures of MERS in connection
with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans
are registered
with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to
each Mortgage
Loan, as of the related Closing Date and as of the related Servicing
Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule,
including any
diskette or other related data tapes sent to the Initial Purchaser,
is complete,
true and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security
interest with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second
lien and second
priority security interest with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien (as reflected on the Mortgage
Loan Schedule),
in either case, in the related Mortgaged Property securing the
related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such
Mortgage Loan have
been made as of the related Closing Date, the Mortgage Loan is
not delinquent in
payment more than 30 days and has not been dishonored; there
are no material
defaults under the terms of the Mortgage Loan; the Company has
not advanced
funds, or induced, solicited or knowingly received any advance
of funds from a
party other than the owner of the Mortgaged Property subject
to the Mortgage,
directly or indirectly, for the payment of any amount required
by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been
delinquent during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer
and municipal
charges, leasehold payments or ground rents which previously
became due and
owing have been paid, or escrow funds have been established in
an amount
sufficient to pay for every such escrowed item which remains
unpaid and which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or
modified in any respect, except by written instruments which
have been recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor
has been
released, in whole or in part, from the terms thereof except
in connection with
an assumption agreement and which assumption agreement is part
of the Mortgage
File and the terms of which are reflected in the related Mortgage
Loan Schedule;
the substance of any such waiver, alteration or modification
has been approved
by the issuer has been approved by the issuer of any related
title insurance
policy, to the extent required by the related policy.
(f) The
Mortgage Note and the Mortgage are not subject to any right of
rescission,
set-off, counterclaim or defense, including, without limitation,
the defense of
usury, nor will the operation of any of the terms of the Mortgage
Note or the
Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any
right of
rescission, set-off, counterclaim or defense, including the defense
of usury,
and no such right of rescission, set-off, counterclaim or defense
has been
asserted with respect thereto; and the Mortgagor was not a debtor
in any state
or federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the
Mortgaged Property
are insured by a Qualified Insurer, against loss by fire, windstorm,
hurricane
hail and other perils normally associated with extended coverage,
in an amount
representing coverage not less than the lesser of (i) the maximum
insurable
value of the improvements securing such Mortgage Loans, and (ii)
the greater of
(a) either (1) the outstanding principal balance of the Mortgage
Loan with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule) or (2) with
respect to each
Second Lien Mortgage Loan, the sum of the outstanding principal
balance of the
first lien on such Mortgage Loan and the outstanding principal
balance of such
Second Lien Mortgage Loan, and (b) an amount such that the proceeds
thereof
shall be sufficient to prevent the Mortgagor and/or the mortgagee
from becoming
a co-insurer, but in no event greater than the maximum amount
permitted under
applicable law. All such standard hazard policies are in full
force and effect
and on the date of origination contained a standard mortgagee
clause naming the
Company and its successors in interest and assigns as loss payee
and such clause
is still in effect and all premiums due thereon have been paid.
If required by
the Flood Disaster Protection Act of 1973, as amended, the Mortgage
Loan is
covered by a flood insurance policy meeting the requirements
of the current
guidelines of the Federal Insurance Administration, which policy
conforms
generally to standards of prudent lenders in the secondary mortgage
market in an
amount not less than the amount required by the Flood Disaster
Protection Act of
1973, as amended. Such policy was issued by a Qualified Insurer.
The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance
at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Each
Mortgage Loan and, if any, the related prepayment penalty complied
in all
material respects with any and all requirements of any federal,
state or local
law including, without limitation, usury, truth in lending, real
estate
settlement procedures, consumer credit protection, equal credit
opportunity,
fair housing, disclosure, or predatory, fair and abusive lending
laws applicable
to the origination and servicing of loans of a type similar to
the Mortgage
Loans and the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other
than the
subordination of any Second Lien Mortgage Loan to the related
First Lien), in
whole or in part, or rescinded, and the Mortgaged Property has
not been released
from the lien of the Mortgage, in whole or in part nor has any
instrument been
executed that would effect any such release, cancellation, subordination
or
rescission. The Company has not waived the performance by the
Mortgagor of any
action, if the Mortgagor’s failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any
default resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected
(A) first
lien and first priority security interest with respect to each
Mortgage Loan
which is indicated by the Company to be a First Lien (as reflected
on the
Mortgage Loan Schedule), or (B) second lien and second priority
security
interest with respect to each Mortgage Loan which is indicated
by the Company to
be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule), in
either case, on the Mortgaged Property including all buildings
on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to
the foregoing
securing the Mortgage Note’s original principal balance. The Mortgage and the
Mortgage Note do not contain any evidence of any security interest
or other
interest or right thereto. Such lien is free and clear of all
adverse claims,
liens and encumbrances having priority over the first lien of
the Mortgage
subject only to (1) the lien of non-delinquent current real property
taxes and
assessments not yet due and payable, (2) covenants, conditions
and restrictions,
rights of way, easements and other matters of the public record
as of the date
of recording which are acceptable to mortgage lending institutions
generally and
either (A) which are referred to or otherwise considered in the
appraisal made
for the originator of the Mortgage Loan, or (B) which do not
adversely affect
the appraised value of the Mortgaged Property as set forth in
such appraisal,
(3) other matters to which like properties are commonly subject
which do not
materially interfere with the benefits of the security intended
to be provided
by the Mortgage or the use, enjoyment, value or marketability
of the related
Mortgaged Property and (4) with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien Mortgage Loan (as reflected
on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security
agreement,
chattel mortgage or equivalent document related to and delivered
in connection
with the Mortgage Loan establishes and creates a valid, subsisting,
enforceable
and perfected (A) first lien and first priority security interest
with respect
to each Mortgage Loan which is indicated by the Company to be
a First Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien
and second priority
security interest with respect to each Mortgage Loan which is
indicated by the
Company to be a Second Lien Mortgage Loan (as reflected on the
Mortgage Loan
Schedule), in either case, on the property described therein,
and the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine
and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy,
insolvency,
moratorium, reorganization and other laws of general application
affecting the
rights of creditors and by general equitable principles and the
Company has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage
had the legal
capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have
been duly and
properly executed by such parties. No fraud, error, omission,
misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan
has taken place
on the part of the Company or the Mortgagor, or, on the part
of any other party
involved in the origination or servicing of the Mortgage Loan.
The proceeds of
the Mortgage Loan have been fully disbursed and there is no requirement
for
future advances thereunder, and any and all requirements as to
completion of any
on-site or off-site improvements and as to disbursements of any
escrow funds
therefor have been complied with. All costs, fees and expenses
incurred in
making or closing the Mortgage Loan and the recording of the
Mortgage were paid
or are in the process of being paid, and the Mortgagor is not
entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage
Loan and the
indebtedness evidenced by the Mortgage Note, and upon recordation
the Purchaser
or its designee will be the owner of record of the Mortgage and
the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage
Loan to the
Purchaser, the Company will retain the Servicing File in trust
for the Purchaser
only for the purpose of interim servicing and supervising the
interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including
the Mortgage
Note and the Mortgage, were not subject to an assignment or pledge,
and the
Company had good and marketable title to and was the sole owner
thereof and had
full right to transfer and sell the Mortgage Loan to the Purchaser
free and
clear of any encumbrance, equity, lien, pledge, charge, claim
or security
interest and has the full right and authority subject to no interest
or
participation of, or agreement with, any other party, to sell
and assign the
Mortgage Loan pursuant to this Agreement and following the sale
of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear
of any
encumbrance, equity, participation interest, lien, pledge, charge,
claim or
security interest. The Company intends to relinquish all rights
to possess,
control and monitor the Mortgage Loan, except for the purposes
of interim
servicing the Mortgage Loan as set forth in this Agreement. The
Mortgagor is a
natural person;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy issued by a
title insurer that is a Qualified Insurer and qualified to do
business in the
jurisdiction where the Mortgaged Property is located, insuring
(subject to the
exceptions contained in (j)(1), (2) and (3) above and, with respect
to each
Mortgage Loan which is indicated by the Company to be a Second
Lien Mortgage
Loan (as reflected on the Mortgage Loan Schedule) clause (4))
the Company, its
successors and assigns, as to the first (or, where applicable,
second) priority
lien of the Mortgage in the original principal amount of the
Mortgage Loan and,
with respect to each Adjustable Rate Mortgage Loan, against any
loss by reason
of the invalidity or unenforceability of the lien resulting from
the provisions
of the Mortgage providing for adjustment in the Mortgage Interest
Rate and
Monthly Payment. Additionally, such policy affirmatively insures
ingress and
egress to and from the Mortgaged Property. Where required by
applicable state
law or regulation, the Mortgagor has been given the opportunity
to choose the
carrier of the required mortgage title insurance. The Company,
its successors
and assigns, are the sole insureds of such lender’s title insurance policy, such
title insurance policy has been duly and validly endorsed to
the Purchaser or
the assignment to the Purchaser of the Company’s interest therein does not
require the consent of or notification to the insurer and such
lender’s title
insurance policy is in full force and effect and will be in full
force and
effect upon the consummation of the transactions contemplated
by this Agreement
and the related Confirmation. No claims have been made under
such lender’s title
insurance policy, and no prior holder of the related Mortgage,
including the
Company, has done, by act or omission, anything which would impair
the coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing
under the
Mortgage or the related Mortgage Note and no event which, with
the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default,
breach,
violation or event permitting acceleration. With respect to each
Mortgage Loan
which is indicated by the Company to be a Second Lien Mortgage
Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is
in full force and
effect, (ii) there is no default, breach, violation or event
of acceleration
existing under such First Lien mortgage or the related mortgage
note, (iii)
either no consent for the Mortgage Loan is required by the holder
of the First
Lien or such consent has been obtained and is contained in the
Mortgage File,
(iv) to the best of Company’s knowledge, no event which, with the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration
thereunder, and
either (A) the First Lien mortgage contains a provision which
allows or (B)
applicable law requires, the mortgagee under the Second Lien
Mortgage Loan to
receive notice of, and affords such mortgagee an opportunity
to cure any default
by payment in full or otherwise under the First Lien mortgage,
and (v) such
Second Lien Mortgage Loan is secured by a one- to four-family
residence that is
the principal residence of the Mortgagor;
(o) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could
give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in
determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and
building restriction lines of the Mortgaged Property (and wholly
within the
project with respect to a condominium unit) and no improvements
on adjoining
properties encroach upon the Mortgaged Property except those
which are insured
against by the title insurance policy referred to in clause (m)
above and all
improvements on the property comply with all applicable zoning
and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage
Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards which allows for exceptions specifically disclosed
in the Mortgage
File in effect at the time of origination of such Mortgage Loan.
The Mortgage
Notes and Mortgages (exclusive of any riders) are on forms generally
acceptable
to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Mortgage Loan bears interest
at the Mortgage
Interest Rate set forth in the related Mortgage Loan Schedule,
and Monthly
Payments under the Mortgage Note are due and payable on the first
day of each
month. The Mortgage contains the usual and enforceable provisions
of the
originator at the time of origination for the acceleration of
the payment of the
unpaid principal amount of the Mortgage Loan if the related Mortgaged
Property
is sold without the prior consent of the mortgagee thereunder;
(r) The
Mortgaged Property is not subject to any material damage by waste,
fire,
earthquake, windstorm, flood or other casualty, and is in good
repair. At
origination of the Mortgage Loan there was, and there currently
is, no
proceeding pending for the total or partial condemnation of the
Mortgaged
Property. There have not been any condemnation proceedings with
respect to the
Mortgaged Property and there are no such proceedings scheduled
to commence at a
future date;
(s) The
related Mortgage contains customary and enforceable provisions
such as to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided thereby.
There is no homestead or other exemption available to the Mortgagor
which would
interfere with the right to sell the Mortgaged Property at a
trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and
duly qualified
if required under applicable law to act as such, has been properly
designated
and currently so serves and is named in the Mortgage, and no
fees or expenses
are or will become payable by the Purchaser to the trustee under
the deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged
Property which, (a)
with respect to First Lien Mortgage Loans, was on appraisal form
1004 or form
2055 with an interior inspection, or (b) with respect to Second
Lien Mortgage
Loans, was on appraisal form 704, 2065 or 2055 with an interior
or exterior only
inspection, and (c) with respect to (a) or (b) above, was signed
prior to the
final approval of the mortgage loan application by a Qualified
Appraiser, who
had no interest, direct or indirect, in the Mortgaged Property
or in any loan
made on the security thereof, and whose compensation is not affected
by the
approval or disapproval of the Mortgage Loan, and the appraisal
and appraiser
both satisfy the requirements of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
(v) All
parties which have had any interest in the Mortgage, whether
as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in
which they held
and disposed of such interest, were) (A) in compliance with any
and all
applicable licensing requirements of the laws of the state wherein
the Mortgaged
Property is located, and (B) (1) organized under the laws of
such state, or (2)
qualified to do business in such state, or (3) federal savings
and loan
associations or national banks or a Federal Home Loan Bank or
savings bank
having principal offices in such state, or (4) not doing business
in such
state;
(w) The
related Mortgage Note is not and has not been secured by any
collateral except
the lien of the corresponding Mortgage and the security interest
of any
applicable security agreement or chattel mortgage referred to
in (j) above and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no
Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent
and the
Company has no knowledge of any circumstances or condition with
respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors
to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become
delinquent, or materially adversely affect the value or marketability
of the
Mortgage Loan;
(aa) Except
for an interest-only Mortgage Loan, principal payments on the
Mortgage Loan
commenced no more than sixty (60) days after the funds were disbursed
in
connection with the Mortgage Loan. The Mortgage Loans have an
original term to
maturity of not more than 30 years, with interest payable in
arrears on the
first day of each month. Each Mortgage Note requires a monthly
payment which is
sufficient to fully amortize the original principal balance over
the original
term thereof (other than during the interest-only period with
respect to a
Mortgage Loan identified on the related Mortgage Loan Schedule
as an
interest-only Mortgage Loan) and to pay interest at the related
Mortgage
Interest Rate. With respect to each Mortgage Loan identified
on the Mortgage
Loan Schedule as an interest-only Mortgage Loan, the interest-only
period does
not exceed ten (10) years (or such lesser period specified on
the Mortgage Loan
Schedule) and following the expiration of such interest-only
period, the
remaining Monthly Payments shall be sufficient to fully amortize
the original
principal balance over the remaining term of the Mortgage Loan.
No Mortgage Loan
contains terms or provisions which would result in negative amortization.
No
Mortgage Loan provides for the capitalization or forbearance
of
interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance
policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment
of Mortgage is
in recordable form and is acceptable for recording under the
laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the
related Mortgage
Loan Schedule and consists of a single parcel of real property
with a detached
single family residence erected thereon, or a townhouse, or a
two-to four-family
dwelling, or an individual condominium unit in a condominium
project, or an
individual unit in a planned unit development or a de minimis
planned unit
development, provided, however, that no residence or dwelling
is a single parcel
of real property with a cooperative housing corporation erected
thereon, or a
mobile home. As of the date of origination, no portion of the
Mortgaged Property
was used for commercial purposes, and since the date or origination
no portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the
Mortgage Loans are
subject to a Prepayment Penalty. For any Mortgage Loan originated
prior to
October 1, 2002 that is subject to a Prepayment Penalty, such
prepayment penalty
does not extend beyond five years after the date of origination.
For any
Mortgage Loan originated on or following October 1, 2002 that
is subject to a
Prepayment Penalty, such prepayment penalty does not extend beyond
three years
after the date of origination. Any such prepayment penalty is
permissible and
enforceable in accordance with its terms upon the Mortgagor’s full and voluntary
principal prepayment under applicable law. With respect to any
Mortgage Loan
that contains a provision permitting imposition of a penalty
upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit
to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such
a prepayment
penalty; (ii) the Company had available a product that did not
contain a
Prepayment Penalty; and (iii) the prepayment penalty was adequately
disclosed to
the Mortgagor in the loan documents pursuant to applicable state
and federal
law;
(ff) The
Mortgaged Property is lawfully occupied under applicable law,
and all
inspections, licenses and certificates required to be made or
issued with
respect to all occupied portions of the Mortgaged Property and,
with respect to
the use and occupancy of the same, including but not limited
to certificates of
occupancy and fire underwriting certificates, have been made
or obtained from
the appropriate authorities;
(gg) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), such condominium
or planned unit
development project is warrantable and meets the requirements
set forth in the
Company’s Underwriting Guidelines;
(hh)
There is
no pending action or proceeding directly involving the Mortgaged
Property in
which compliance with any environmental law, rule or regulation
is an issue;
there is no violation of any environmental law, rule or regulation
with respect
to the Mortgaged Property; and nothing further remains to be
done to satisfy in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(ii) The
Mortgagor has not notified the Company requesting relief under
the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act,
and
the Company has no knowledge of any relief requested or allowed
to the Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or
rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related
Closing Date
which has resulted or will result in an exclusion from, denial
of, or defense to
coverage under any insurance policy related to a Mortgage Loan
(including,
without limitation, any exclusions, denials or defenses which
would limit or
reduce the availability of the timely payment of the full amount
of the loss
otherwise due thereunder to the insured) whether arising out
of actions,
representations, errors, omissions, negligence, or fraud, or
for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a savings and loan association,
a savings bank,
a commercial bank, a credit union, an insurance company, or similar
institution
which is supervised and examined by a federal or state authority,
or by a
mortgagee approved by the Secretary of HUD pursuant to Sections
203 and 211 of
the National Housing Act;
(mm) With
respect to each Mortgage Loan that is secured in whole or in
part by the
interest of the Mortgagor as a lessee under a ground lease of
the related
Mortgaged Property (a “Ground Lease”) and not by a fee interest in such
Mortgaged Property:
| (a) |
The
Mortgagor is the owner of a valid and subsisting interest
as tenant under
the Ground Lease;
|
| (b) |
The
Ground Lease is in full force and effect, unmodified
and not supplemented
by any writing or otherwise;
|
| (c) |
The
Mortgagor is not in default under any of the terms
thereof and there are
no circumstances which, with the passage of time or
the giving of notice
or both, would constitute an event of default
thereunder;
|
| (d) |
The
lessor under the Ground Lease is not in default under
any of the terms or
provisions thereof on the part of the lessor to be
observed or
performed;
|
| (e) |
The
term of the Ground Lease exceeds the maturity date
of the related Mortgage
Loan by at least five years;
|
| (f) |
The
Ground Lease or a memorandum thereof has been recorded
and by its terms
permits the leasehold estate to be mortgaged. The Ground
Lease grants any
leasehold mortgagee standard protection necessary to
protect the security
of a leasehold mortgagee;
|
| (g) |
The
Ground Lease does not contain any default provisions
that could give rise
to forfeiture or termination of the Ground Lease except
for the
non-payment of the Ground Lease
rents;
|
| (h) |
The
execution, delivery and performance of the Mortgage
do not require the
consent (other than those consents which have been
obtained and are in
full force and effect) under, and will not contravene
any provision of or
cause a default under, the Ground Lease;
and
|
| (i) |
The
Ground Lease provides that the leasehold can be transferred,
mortgaged and
sublet an unlimited number of times either without
restriction or on
payment of a reasonable fee and delivery of reasonable
documentation to
the lessor;
|
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly assessed to the Mortgagor and
no claims will
arise as to broker fees that are double charged and for which
the Mortgagor
would be entitled to reimbursement;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been
delivered to the
Purchaser certifying that the original Mortgage Note has been
lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently
in default, the
enforcement of such Mortgage Loan will not be materially adversely
affected by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the
Assignment of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit
A-1 and
required to be delivered on the related Closing Date have been
delivered to the
Purchaser or its designee all in compliance with the specific
requirements of
this Agreement. With respect to each Mortgage Loan, the Company
is in possession
of a complete Mortgage File and Servicing File except for such
documents as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor
is true,
accurate and complete and does not contain any statement that
is or will be
inaccurate or misleading in any material respect;
(ss)
There
does not exist on the related Mortgaged Property any hazardous
substances,
hazardous wastes or solid wastes, as such terms are defined in
the Comprehensive
Environmental Response Compensation and Liability Act, the Resource
Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination
of more than
100% and no Mortgage Loan had a Combined Loan-to-Value Ratio
at the time of
origination of more than 100%;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of
the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
law, including any predatory or abusive lending laws (or a similarly
classified
loan using different terminology under a law imposing heightened
regulatory
scrutiny or additional legal liability for a residential mortgage
loan having
high interest rates, points and/or fees), (c) a High Cost Loan
or Covered Loan,
as applicable (as such terms are defined in the current version
of Standard
& Poor’s LEVELS® Glossary, Appendix E) or (d) in violation of any state law
or ordinance comparable to HOEPA. No Mortgage Loan (including
purchase money
loans or refinance transactions) has an “annual percentage rate” or total Points
and Fees payable by the Mortgagor (as each such term is defined
under HOEPA)
that equal or exceed the applicable thresholds defined under
HOEPA (Section 32
of Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii));
(vv) No
Mortgagor was required to purchase any credit life, disability,
accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit.
No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection
with the
origination of the Mortgage Loan; No proceeds from any Mortgage
Loan were used
to purchase or finance single-premium insurance policies or debt
cancellation
agreements as part of the origination of or as a condition to
closing, such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related
Closing Date have
been consolidated with the outstanding principal amount secured
by the Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate
and single repayment term. The lien of the Mortgage securing
the consolidated
principal amount is expressly insured as having (A) first lien
priority with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien priority
with respect to each Mortgage Loan which is indicated by the
Company to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Data Transmission),
in either case, by a title insurance policy or an endorsement
to the policy
insuring the mortgagee’s consolidated interest. The consolidated principal
amount does not exceed the original principal amount of the Mortgage
Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day
year consisting of
twelve 30-day months;
(yy) Except
as
disclosed on the Mortgage Loan Schedule, no Mortgage Loan is
a Balloon Mortgage
Loan. With respect to each Balloon Mortgage Loan, the Mortgage
Note requires a
monthly payment which is sufficient to fully amortize the original
principal
balance over a term which extends beyond the maturity date thereof
and to pay
interest at the related Mortgage Interest Rate and requires a
final monthly
payment substantially greater than the preceding monthly payment
which is
sufficient to repay the remaining unpaid principal balance of
the Balloon
Mortgage Loan as the due date of such monthly payment;
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by
MERS and such MIN
is accurately provided on the related Mortgage Loan Schedule.
The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received
any notice of
liens or legal actions with respect to such Mortgage Loan and
no such notices
have been electronically posted by MERS;
(bbb) With
respect to each Mortgage Loan, the related Mortgaged Property
is not considered
a manufactured housing unit;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately
furnished
complete information (e.g., favorable and unfavorable) on the
related borrower
credit files to Equifax and Trans Union Credit Information Company
(two of the
credit repositories), in accordance with the Fair Credit Reporting
Act and its
implementing regulations, on a monthly basis and the Company
will fully furnish,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable
and unfavorable)
on its borrower credit files to Equifax and Trans Union Credit
Information
Company (two of the credit repositories), on a monthly basis;
(ddd) The
Company has complied with all applicable anti-money laundering
laws and
regulations, including without limitation the USA Patriot Act
of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program
as required
by the Anti-Money Laundering Laws, has conducted the requisite
due diligence in
connection with the origination of each Mortgage Loan for purposes
of the
Anti-Money Laundering Laws, including with respect to the legitimacy
of the
applicable Mortgagor and the origin of the assets used by the
said Mortgagor to
purchase the property in question, and maintains, and will maintain,
sufficient
information to identify the applicable Mortgagor for purposes
of the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification
pursuant to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department
of the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions
of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage
Loan the related
first lien does not contain any term that could result in negative
amortization;
(fff) No
predatory or deceptive lending practices, including but not limited
to, the
extension of credit to the applicable Mortgagor without regard
for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to
said Mortgagor which has no apparent benefit to said Mortgagor,
were employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. ;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied
manufactured
home located in the State of Georgia was originated (or modified)
on or after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgagor was encouraged or required to select a Mortgage Loan
product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as,
without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing
through the
Mortgage Loan originator’s higher priced sup prime lending channel was directed
towards or offered the Mortgage Loan’s originator standard mortgage line if the
Borrower was able to qualify for one of the standard products.
If, at the time
of loan application, the Mortgagor may have qualified for a lower
cost credit
product then offered by any mortgage lending affiliate of the
Mortgage Loan’s
originator, the Mortgage Loan’s originator referred the Mortgagor’s application
to such affiliate for underwriting consideration;
(iii) The
methodology used in underwriting the extension of credit for
each Mortgage Loan
did not rely solely on the extent of the Mortgagor’s equity in the collateral as
the principal determining factor in approving such extension
of credit. The
methodology employed objective criteria such as the Mortgagor’s income, assets
and liabilities, to the proposed mortgage payment and, based
on such
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination the Mortgagor had the ability to make
timely payments
on the Mortgage Loan;
(jjj) All
points, fees and charges (including finance charges) and whether
or not
financed, assessed, collected or to be collected in connection
with the
origination and servicing of each Mortgage Loan have been disclosed
in writing
to the Mortgagor in accordance with applicable state and federal
law and
regulation;
(kkk) [Reserved];
(lll) [Reserved];
(mmm) Each
Mortgage Loan is eligible for sale in the secondary mortgage
market or for
securitization;
(nnn) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase
money Home Loan,
(2) purchase money Covered Loan (with
respect to Mortgage Loans which were originated between November
26, 2003 and
July 7, 2004),
or (3)
a rate/term refinance Home Loan;
(ooo) No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising out of
or relating in any way to the Mortgage Loan transaction;
(ppp) The
Mortgagor has not made or caused to be made any payment in the
nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(qqq) No
Mortgage Loan secured by a Mortgaged Property located in the
Commonwealth of
Massachusetts was made to pay off or refinance an existing loan
or other debt of
the related borrower (as the term "borrower" is defined in the
regulations
promulgated by the Massachusetts Secretary of State in connection
with the
Massachusetts General Laws Chapter 183, Section 28C) unless (a)
the related
Mortgage Interest Rate (that would be effective once the introductory
rate
expires, with respect to Adjustable Rate Mortgage Loans) did
or would not exceed
by more than 2.50% the yield on United States Treasury securities
having
comparable periods of maturity to the maturity of the related
Mortgage Loan as
of the fifteenth day of the month immediately preceding the month
in which the
application for the extension of credit was received by the related
lender or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage
Note provides that
the related Mortgage Interest Rate may not exceed at any time
the Prime rate
index as published in the Wall
Street Journal
plus a
margin of one percent;
(rrr) All
Points and Fees related to each Loan were disclosed in writing
to the Mortgagor
in accordance with applicable state and federal law and regulation.
Except as
otherwise disclosed in the Mortgage Loan Schedule, no Mortgagor
was charged
Points and Fees (whether or not financed) in an amount that exceeds
the greater
of (1) 5% of the principal amount of such Mortgage Loan (such
5% limitation is
calculated in accordance with ▇▇▇▇▇▇ Mae’s requirements as set forth in the
▇▇▇▇▇▇ Mae Selling Guide) or (2) $1,000; and
(sss) With
respect to each Mortgage Loan, the related residential dwelling
is not a
manufactured housing unit.
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2006,
(“Agreement”)
among
UBS Real Estate Securities Inc. (“Assignor”),
Mortgage Asset Securitization Transactions, Inc. (“Assignee”)
and
First Street Financial, Inc. (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other
valuable
consideration the receipt and sufficiency of which hereby are
acknowledged, and
of the mutual covenants herein contained, the parties hereto
hereby agree as
follows:
I.
Assignment and Conveyance
The
Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee
(x) all of the right, title and interest of the Assignor, as
purchaser, in, to
and under (a) those certain Mortgage Loans listed as being originated
by the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Seller’s Purchase, Warranties and Interim Servicing Agreement dated
as of August
1, 2004,
as
amended (the “Purchase
Agreement”),
between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement
relates to the
Mortgage Loans and (y) other than as provided below with respect
to the
enforcement of representations and warranties, none of the obligations
of the
Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee
hereunder any
and all right, title and interest in, to and under and any obligations
of the
Assignor with respect to any mortgage loans subject to the Purchase
Agreement
which are not the mortgage loans set forth on the Mortgage Loan
Schedule and are
not the subject of this Agreement.
II.
Recognition of the Company
From
and
after the date hereof, the Company shall and does hereby recognize
that the
Assignee will transfer the Mortgage Loans and assign its rights
under the
Purchase Agreement (solely to the extent set forth herein) and
this Agreement to
MASTR Asset-Backed Securities Trust 2006-HE4 (the “Trust”) created pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 2006
(the “Pooling
Agreement”), among
the
Assignee, ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and trust
administrator
(including its successors in interest and any successor servicers
under the
Pooling Agreement, the “Master Servicer” or “Trust Administrator”), ▇▇▇▇▇ Fargo
Bank, N.A. and Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing as
servicers (the “Servicers”) and U.S. Bank National Association, as trustee
(including its successors in interest and any successor trustees
under the
Pooling Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the
date hereof (i)
the Trust will be the owner of the Mortgage Loans, (ii) the Trust
(including the Trustee, the Trust Administrator, the Master Servicer
and the
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to the Mortgage
Loans, under
the Purchase Agreement, including, without limitation, the enforcement
of the
document delivery requirements and remedies with respect to breaches
of
representations and warranties set forth in the Purchase Agreement,
and shall be
entitled to enforce all of the obligations of the Company thereunder
insofar as
they relate to the Mortgage Loans, and (iii) all references to the
Purchaser (insofar as they relate to the rights, title and interest
and, with
respect to obligations of the Purchaser, only insofar as they
relate to the
enforcement of the representations, warranties and covenants
of the Company) or
the Custodian under the Purchase Agreement insofar as they relate
to the
Mortgage Loans, shall be deemed to refer to the Trust (including
the Trustee,
the Trust Administrator, the Master Servicer and the Servicer
acting on the
Trust’s behalf). Neither the Company nor the Assignor shall amend or
agree to
amend, modify, waiver, or otherwise alter any of the terms or
provisions of the
Purchase Agreement which amendment, modification, waiver or other
alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without
the prior
written consent of the Trustee.
III.
Representations and Warranties of the Company
1. The
Company warrants and represents to the Assignor, the Assignee
and the Trust as
of the date hereof that:
(a) Attached
hereto as Exhibit
B
is a
true and accurate copy of the representations and warranties
set forth in
Sections 3.01 and 3.02 of the Purchase Agreement, which Purchase
Agreement is in
full force and effect as of the date hereof and the provisions
of which have not
been waived, amended or modified in any respect, nor has any
notice of
termination been given thereunder;
(b) The
Company is duly organized, validly existing and in good standing
under the laws
of the jurisdiction of its incorporation;
(c) The
Company has full power and authority to execute, deliver and
perform its
obligations under this Agreement and has full power and authority
to perform its
obligations under the Purchase Agreement. The execution by the
Company of this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now
a party or by which
it is bound, or result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Company or its property is subject.
The
execution, delivery and performance by the Company of this Agreement
have been
duly authorized by all necessary corporate action on part of
the Company. This
Agreement has been duly executed and delivered by the Company,
and, upon the due
authorization, execution and delivery by the Assignor and the
Assignee, will
constitute the valid and legally binding obligation of the Company,
enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium
or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is considered
in a proceeding in equity or at law;
(d) No
consent, approval, order or authorization of, or declaration,
filing or
registration with, any governmental entity is required to be
obtained or made by
the Company in connection with the execution, delivery or performance
by the
Company of this Agreement; and
(e) There
is
no action, suit, proceeding or investigation pending or threatened
against the
Company, before any court, administrative agency or other tribunal,
which would
draw into question the validity of this Agreement or the Purchase
Agreement, or
which, either in any one instance or in the aggregate, would
result in any
material adverse change in the ability of the Company to perform
its obligations
under this Agreement or the Purchase Agreement, and the Company
is
solvent.
2. Pursuant
to Section 8.01(b)(iii) of the Purchase Agreement, the Company
hereby represents
and warrants, for the benefit of the Assignor, the Assignee and
the Trust, that
the representations and warranties set forth in Sections 3.01
and 3.02 of the
Purchase Agreement (set forth on Schedule 1 hereto), are true
and correct as of
the date hereof, as if such representations and warranties were
made on such
date.
3. The
Assignor hereby makes the following representations and warranties
as of the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material
respects with
applicable local, state, and federal laws, including, but not
limited to, all
applicable predatory and abusive lending laws;
(b) None
of
the Mortgage Loans are High Cost as defined by any applicable
predatory and
abusive lending laws;
(c) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as such terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.7 Revised, Appendix E); and
(d) No
Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is
governed by the Georgia Fair Lending Act;
IV.
Remedies for Breach of Representations and Warranties
The
Company hereby acknowledges and agrees that the remedies available
to the
Assignor, the Assignee and the Trust (including the Trustee and
the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth
in Section 3 hereof
shall be as set forth in Subsection 3.03 of the Purchase Agreement
as if they
were set forth herein (including without limitation the repurchase
and indemnity
obligations set forth therein). It is understood by the parties
hereto that a
breach of the representations and warranties made in Subsections
3.02 (ee),
(uu), (vv), (ccc) and (ggg) of the Purchase Agreement shall be
deemed to
materially and adversely affect the value of the related mortgage
loan or the
interests of the Trust in the related mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available
to the
Assignee and the Trust (including the Trustee and the Master
Servicer acting on
the Trust’s behalf) in connection with any breach of the representations
and
warranties made by the Assignor set forth in Section 3 hereof
shall be as set
forth in Section 2.03 of the Pooling and Servicing Agreement
as if they were set
forth herein (including without limitation the repurchase obligations
set forth
therein). The
Assignor hereby acknowledges and agrees that a breach of any
one of the
representations set forth in Section 5 above will be deemed to
materially
adversely affect the interests of the certificateholders and
shall require a
repurchase of the affected Mortgage Loan(s).
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation
of the
Company with respect to any breach of representation and warranty
made by the
Company regarding the Mortgage Loans.
V.
Miscellaneous
This
Agreement shall be construed in accordance with the laws of the
State of New
York, without regard to conflicts of law principles, and the
obligations, rights
and remedies of the parties hereunder shall be determined in
accordance with
such laws.
No
term
or provision of this Agreement may be waived or modified unless
such waiver or
modification is in writing and signed by the party against whom
such waiver or
modification is sought to be enforced, with the prior written
consent of the
Trustee and the Trust Administrator.
This
Agreement shall inure to the benefit of (i) the successors and
assigns of the
parties hereto and (ii) the Trust (including the Trustee, the
Trust
Administrator and the Master Servicer acting on the Trust’s behalf). Any entity
into which Assignor, Assignee or Company may be merged or consolidated
shall,
without the requirement for any further writing, be deemed Assignor,
Assignee or
Company, respectively, hereunder.
Each
of
this Agreement and the Purchase Agreement shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase Agreement (to
the extent
assigned hereunder) by Assignor to Assignee and by Assignee to
the Trust and
nothing contained herein shall supersede or amend the terms of
the Purchase
Agreement.
This
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
In
the
event that any provision of this Agreement conflicts with any
provision of the
Purchase Agreement with respect to the Mortgage Loans, the terms
of this
Agreement shall control.
Capitalized
terms used in this Agreement (including the exhibits hereto)
but not defined in
this Agreement shall have the meanings given to such terms in
the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their
duly authorized officers as of the date first above written.
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UBS
REAL ESTATE SECURITIES INC.
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Name:
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Title:
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MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
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By:
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Name:
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Title:
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Name:
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Title:
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FIRST
STREET FINANCIAL, INC.
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EXHIBIT
A
Mortgage
Loan Schedule
Available
Upon Request
SCHEDULE
1
Capitalized
terms used herein but not defined in this Schedule 1 shall have
the meanings
given to such terms in the Purchase Agreement:
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that
as of each
Closing Date and as of each Servicing Transfer Date or as of
such date
specifically provided herein:
(a) The
Company is a corporation duly organized and validly existing
under the laws of
the State of California. The Company has all licenses necessary
to carry out its
business as now being conducted, and is licensed and qualified
to transact
business in and is in good standing under the laws of each state
in which any
Mortgaged Property is located or is otherwise exempt under applicable
law from
such licensing or qualification or is otherwise not required
under applicable
law to effect such licensing or qualification and no demand for
such licensing
or qualification has been made upon the Company by any such state,
and in any
event the Company is in compliance with the laws of any such
state to the extent
necessary to ensure the enforceability of each Mortgage Loan
and the interim
servicing of the Mortgage Loans in accordance with the terms
of this Agreement.
No licenses or approvals obtained by the Company have been suspended
or revoked
by any court, administrative agency, arbitrator or governmental
body and no
proceedings are pending which might result in such suspension
or
revocation;
(b) The
Company has the full power and authority and legal right to hold,
transfer and
convey each Mortgage Loan, to sell each Mortgage Loan and to
execute, deliver
and perform, and to enter into and consummate all transactions
contemplated by
this Agreement and the related Confirmation and to conduct its
business as
presently conducted; the Company has duly authorized the execution,
delivery and
performance of this Agreement and any agreements contemplated
hereby, has duly
executed and delivered this Agreement and the related Confirmation,
and any
agreements contemplated hereby, and this Agreement and the related
Confirmation
and each Assignment of Mortgage to the Purchaser and any agreements
contemplated
hereby, constitute the legal, valid and binding obligations of
the Company,
enforceable against it in accordance with their respective terms,
except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization and similar laws, and by equitable principles
affecting the
enforceability of the rights of creditors; and all requisite
corporate action
has been taken by the Company to make this Agreement, the related
Confirmation
and all agreements contemplated hereby valid and binding upon
the Company in
accordance with their terms;
(c) Neither
the execution and delivery of this Agreement, the related Confirmation,
the sale
of the Mortgage Loans to the Purchaser, the consummation of the
transactions
contemplated hereby, nor the fulfillment of or compliance with
the terms and
conditions of this Agreement and the related Confirmation will
conflict with any
of the terms, conditions or provisions of the Company’s charter or by-laws or
materially conflict with or result in a material breach of any
of the terms,
conditions or provisions of any legal restriction or any agreement
or instrument
to which the Company is now a party or by which it is bound,
or constitute a
default or result in an acceleration under any of the foregoing,
or result in
the material violation of any law, rule, regulation, order, judgment
or decree
to which the Company or its property is subject;
(d) There
is
no litigation, suit, proceeding or investigation pending or threatened,
or any
order or decree outstanding, which is reasonably likely to have
a material
adverse effect on the sale of the Mortgage Loans, the execution,
delivery,
performance or enforceability of this Agreement or the related
Confirmation, or
which is reasonably likely to have a material adverse effect
on the financial
condition of the Company;
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance
by the Company of
or compliance by the Company with this Agreement and the related
Confirmation,
except for consents, approvals, authorizations and orders which
have been
obtained;
(f) The
consummation of the transactions contemplated by this Agreement
and the related
Confirmation are in the ordinary course of business of the Company,
and the
transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by
the Company pursuant to this Agreement and the related Confirmation
are not
subject to bulk transfer or any similar statutory provisions
in effect in any
applicable jurisdiction;
(g) The
origination, servicing and collection practices with respect
to each Mortgage
Note and Mortgage have been legal and in accordance with applicable
laws and
regulations, and in all material respects in accordance with
Accepted Servicing
Practices. The Company further represents and warrants that:
with respect to
escrow deposits and payments that the Company is entitled to
collect, all such
payments are in the possession of, or under the control of, the
Company or its
delegate, and there exist no deficiencies in connection therewith
for which
customary arrangements for repayment thereof have not been made;
all escrow
payments have been collected and are being maintained in full
compliance with
applicable state and federal law and the provisions of the related
Mortgage Note
and Mortgage; as to any Mortgage Loan that is the subject of
an escrow, escrow
of funds is not prohibited by applicable law and has been established
in an
amount sufficient to pay for every escrowed item that remains
unpaid and has
been assessed but is not yet due and payable; no escrow deposits
or other
charges or payments due under the Mortgage Note have been capitalized
under any
Mortgage or the related Mortgage Note; all Mortgage Interest
Rate adjustments
have been made in strict compliance with state and federal law
and the terms of
the related Mortgage Note; and any interest required to be paid
pursuant to
state and local law has been properly paid and credited;
(h) The
Company has not used selection procedures that identified the
Mortgage Loans as
being less desirable or valuable than other comparable mortgage
loans in the
Company’s portfolio at the related Closing Date;
(i) The
Company will treat the transfer of the Mortgage Loans to the
Purchaser as a sale
for reporting and accounting purposes and, to the extent appropriate,
for
federal income tax purposes. The Company shall maintain a complete
set of books
and records for each Mortgage Loan which shall be clearly marked
to reflect the
ownership of such Mortgage Loan by the Purchaser;
(j) The
Company is an approved seller/servicer of residential mortgage
loans for HUD,
with such facilities, procedures and personnel necessary for
the sound servicing
of such mortgage loans. The Company is duly qualified, licensed,
registered and
otherwise authorized under all applicable federal, state and
local laws and
regulations and is in good standing to sell mortgage loans to
and service
mortgage loans for HUD and no event has occurred which would
make the Company
unable to comply with eligibility requirements or which would
require
notification to HUD;
(k) The
Company does not believe, nor does it have any cause or reason
to believe, that
it cannot perform each and every covenant contained in this Agreement
and the
related Confirmation applicable to it. The Company is solvent
and the sale of
the Mortgage Loans will not cause the Company to become insolvent.
The sale of
the Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud
any of the Company’s creditors;
(l) No
statement, tape, diskette, form, report or other document prepared
by, or on
behalf of, the Company pursuant to this Agreement, the related
Confirmation or
in connection with the transactions contemplated hereby, contains
or will
contain any statement that is or will be inaccurate or misleading
in any
material respect. The Company has prudently originated and underwritten
each
Mortgage Loan;
(m) The
consideration received by the Company upon the sale of the Mortgage
Loans
constitutes fair consideration and reasonably equivalent value
for such Mortgage
Loans;
(n) The
Company has delivered to the Purchaser financial statements as
to its last two
complete fiscal years. All such financial statements fairly present
the
pertinent results of operations and changes in financial position
for each of
such periods and the financial position at the end of each such
period of the
Company and its subsidiaries and have been prepared in accordance
with GAAP
consistently applied throughout the periods involved, except
as set forth in the
notes thereto. There has been no change in the business, operations,
financial
condition, properties or assets of the Company since the date
of the Company’s
financial statements that would have a material adverse effect
on its ability to
perform its obligations under this Agreement or the related Confirmation;
(o) The
Company has not dealt with any broker, investment banker, agent
or other person
that may be entitled to any commission or compensation in connection
with the
sale of the Mortgage Loans; and
(p) To
the
extent that the Purchaser has at any time purchased a MERS Mortgage
Loan
hereunder, the Company is a member of MERS in good standing,
and will comply in
all material respects with the rules and procedures of MERS in
connection with
the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans are
registered with MERS.
Section
3.02 Representations
and Warranties as to Individual Mortgage Loans.
The
Company hereby represents and warrants to the Purchaser, as to
each Mortgage
Loan, as of the related Closing Date and as of the related Servicing
Transfer
Date as follows:
(a) The
information set forth in the related Mortgage Loan Schedule,
including any
diskette or other related data tapes sent to the Purchaser, is
complete, true
and correct in all material respects;
(b) The
Mortgage creates a (A) first lien and first priority security
interest with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule) or (B) second
lien and second
priority security interest with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien (as reflected on the Mortgage
Loan Schedule),
in either case, in the related Mortgaged Property securing the
related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such
Mortgage Loan have
been made as of the related Closing Date, the Mortgage Loan is
not delinquent in
payment more than 30 days and has not been dishonored; there
are no material
defaults under the terms of the Mortgage Loan; the Company has
not advanced
funds, or induced, solicited or knowingly received any advance
of funds from a
party other than the owner of the Mortgaged Property subject
to the Mortgage,
directly or indirectly, for the payment of any amount required
by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been
delinquent during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer
and municipal
charges, leasehold payments or ground rents which previously
became due and
owing have been paid, or escrow funds have been established in
an amount
sufficient to pay for every such escrowed item which remains
unpaid and which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or
modified in any respect, except by written instruments which
have been recorded
to the extent any such recordation is required by law. No instrument
of waiver,
alteration or modification has been executed, and no Mortgagor
has been
released, in whole or in part, from the terms thereof except
in connection with
an assumption agreement and which assumption agreement is part
of the Mortgage
File and the terms of which are reflected in the related Mortgage
Loan Schedule;
the substance of any such waiver, alteration or modification
has been approved
by the issuer has been approved by the issuer of any related
title insurance
policy, to the extent required by the related policy.
(f) The
Mortgage Note and the Mortgage are not subject to any right of
rescission,
set-off, counterclaim or defense, including, without limitation,
the defense of
usury, nor will the operation of any of the terms of the Mortgage
Note or the
Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any
right of
rescission, set-off, counterclaim or defense, including the defense
of usury,
and no such right of rescission, set-off, counterclaim or defense
has been
asserted with respect thereto; and the Mortgagor was not a debtor
in any state
or federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the
Mortgaged Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ Guides,
against loss
by fire, hazards of extended coverage and such other hazards
as are provided for
in the ▇▇▇▇▇▇ Mae Guides or by the ▇▇▇▇▇▇▇ Mac Guides, in an
amount representing
coverage not less than the lesser of (i) the maximum insurable
value of the
improvements securing such Mortgage Loans, and (ii) the greater
of (a) either
(1) the outstanding principal balance of the Mortgage Loan with
respect to each
Mortgage Loan which is indicated by the Company to be a First
Lien (as reflected
on the Mortgage Loan Schedule) or (2) with respect to each Second
Lien Mortgage
Loan, the sum of the outstanding principal balance of the first
lien on such
Mortgage Loan and the outstanding principal balance of such Second
Lien Mortgage
Loan, and (b) an amount such that the proceeds thereof shall
be sufficient to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer,
but in no
event greater than the maximum amount permitted under applicable
law. All such
standard hazard policies are in full force and effect and on
the date of
origination contained a standard mortgagee clause naming the
Company and its
successors in interest and assigns as loss payee and such clause
is still in
effect and all premiums due thereon have been paid. If required
by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan
is covered by a
flood insurance policy meeting the requirements of the current
guidelines of the
Federal Insurance Administration which policy conforms to ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇
Mac requirements, in an amount not less than the amount required
by the Flood
Disaster Protection Act of 1973, as amended. Such policy was
issued by an
insurer acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines.
The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
at the
Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so,
authorizes the holder of the Mortgage to maintain such insurance
at the
Mortgagor’s cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Each
Mortgage Loan and, if any, the related prepayment penalty complied
in all
material respects with any and all requirements of any federal,
state or local
law including, without limitation, usury, truth-in-lending, real
estate
settlement procedures, consumer credit protection, equal credit
opportunity,
fair housing, disclosure, or predatory, fair and abusive lending
laws applicable
to the origination and servicing of loans of a type similar to
the Mortgage
Loans and the consummation of the transactions contemplated hereby
will not
involve the violation of any such laws;
(i) The
Mortgage has not been satisfied, canceled or subordinated (other
than the
subordination of any Second Lien Mortgage Loan to the related
First Lien), in
whole or in part, or rescinded, and the Mortgaged Property has
not been released
from the lien of the Mortgage, in whole or in part nor has any
instrument been
executed that would effect any such release, cancellation, subordination
or
rescission. The Company has not waived the performance by the
Mortgagor of any
action, if the Mortgagor’s failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any
default resulting
from any action or inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected
(A) first
lien and first priority security interest with respect to each
Mortgage Loan
which is indicated by the Company to be a First Lien (as reflected
on the
Mortgage Loan Schedule), or (B) second lien and second priority
security
interest with respect to each Mortgage Loan which is indicated
by the Company to
be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule), in
either case, on the Mortgaged Property including all buildings
on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to
the foregoing
securing the Mortgage Note’s original principal balance. The Mortgage and the
Mortgage Note do not contain any evidence of any security interest
or other
interest or right thereto. Such lien is free and clear of all
adverse claims,
liens and encumbrances having priority over the first lien of
the Mortgage
subject only to (1) the lien of non-delinquent current real property
taxes and
assessments not yet due and payable, (2) covenants, conditions
and restrictions,
rights of way, easements and other matters of the public record
as of the date
of recording which are acceptable to mortgage lending institutions
generally and
either (A) which are referred to or otherwise considered in the
appraisal made
for the originator of the Mortgage Loan, or (B) which do not
adversely affect
the appraised value of the Mortgaged Property as set forth in
such appraisal,
(3) other matters to which like properties are commonly subject
which do not
materially interfere with the benefits of the security intended
to be provided
by the Mortgage or the use, enjoyment, value or marketability
of the related
Mortgaged Property and (4) with respect to each Mortgage Loan
which is indicated
by the Company to be a Second Lien Mortgage Loan (as reflected
on the Mortgage
Loan Schedule) a First Lien on the Mortgaged Property. Any security
agreement,
chattel mortgage or equivalent document related to and delivered
in connection
with the Mortgage Loan establishes and creates a valid, subsisting,
enforceable
and perfected (A) first lien and first priority security interest
with respect
to each Mortgage Loan which is indicated by the Company to be
a First Lien (as
reflected on the Mortgage Loan Schedule), or (B) second lien
and second priority
security interest with respect to each Mortgage Loan which is
indicated by the
Company to be a Second Lien Mortgage Loan (as reflected on the
Mortgage Loan
Schedule), in either case, on the property described therein,
and the Company
has the full right to sell and assign the same to the Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine
and each is the
legal, valid and binding obligation of the maker thereof, enforceable
in all
respects in accordance with its terms subject to bankruptcy,
insolvency,
moratorium, reorganization and other laws of general application
affecting the
rights of creditors and by general equitable principles and the
Company has
taken all action necessary to transfer such rights of enforceability
to the
Purchaser. All parties to the Mortgage Note and the Mortgage
had the legal
capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have
been duly and
properly executed by such parties. No fraud, error, omission,
misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan
has taken place
on the part of the Company or the Mortgagor, or, on the part
of any other party
involved in the origination of the Mortgage Loan. The proceeds
of the Mortgage
Loan have been fully disbursed and there is no requirement for
future advances
thereunder, and any and all requirements as to completion of
any on-site or
off-site improvements and as to disbursements of any escrow funds
therefor have
been complied with. All costs, fees and expenses incurred in
making or closing
the Mortgage Loan and the recording of the Mortgage were paid
or are in the
process of being paid, and the Mortgagor is not entitled to any
refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage
Loan and the
indebtedness evidenced by the Mortgage Note, and upon recordation
the Purchaser
or its designee will be the owner of record of the Mortgage and
the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage
Loan to the
Purchaser, the Company will retain the Servicing File in trust
for the Purchaser
only for the purpose of interim servicing and supervising the
interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including
the Mortgage
Note and the Mortgage, were not subject to an assignment or pledge
other than
with respect to a lien of a warehouse lender which lien was released
by such
lender simultaneously with or prior to the payment of the Purchase
Price by the
Purchaser as evidenced by a security release certification delivered
to the
Purchaser pursuant to Section 2.09 of this Agreement. The Company
had good and
marketable title to and was the sole owner thereof and had full
right to
transfer and sell the Mortgage Loan to the Purchaser free and
clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest and has
the full right and authority subject to no interest or participation
of, or
agreement with, any other party, to sell and assign the Mortgage
Loan pursuant
to this Agreement and following the sale of the Mortgage Loan,
the Purchaser
will own such Mortgage Loan free and clear of any encumbrance,
equity,
participation interest, lien, pledge, charge, claim or security
interest. The
Company intends to relinquish all rights to possess, control
and monitor the
Mortgage Loan, except for the purposes of servicing the Mortgage
Loan as set
forth in this Agreement. Either the Mortgagor is a natural person
or the
Mortgagor is an inter-vivos trust acceptable to ▇▇▇▇▇▇ ▇▇▇. With
respect to each
inter-vivos trust, holding title to the Mortgaged Property in
such trust will
not diminish any rights as a creditor including the right to
full title to the
Mortgaged Property in the event foreclosure proceedings are
initiated;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy (or, with
respect to any Second Lien Mortgage Loan, by a short form title
report) issued
by a title insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and
qualified to do
business in the jurisdiction where the Mortgaged Property is
located, insuring
(subject to the exceptions contained in (j)(1), (2) and (3) above
and, with
respect to each Mortgage Loan which is indicated by the Company
to be a Second
Lien Mortgage Loan (as reflected on the Mortgage Loan Schedule)
clause (4)) the
Company, its successors and assigns, as to the first (or, where
applicable,
second) priority lien of the Mortgage in the original principal
amount of the
Mortgage Loan and, with respect to each Adjustable Rate Mortgage
Loan, against
any loss by reason of the invalidity or unenforceability of the
lien resulting
from the provisions of the Mortgage providing for adjustment
in the Mortgage
Interest Rate and Monthly Payment. Additionally, such policy
affirmatively
insures ingress and egress to and from the Mortgaged Property.
Where required by
applicable state law or regulation, the Mortgagor has been given
the opportunity
to choose the carrier of the required mortgage title insurance.
The Company, its
successors and assigns, are the sole insureds of such lender’s title insurance
policy, such title insurance policy has been duly and validly
endorsed to the
Purchaser or the assignment to the Purchaser of the Company’s interest therein
does not require the consent of or notification to the insurer
and such lender’s
title insurance policy is in full force and effect and will be
in full force and
effect upon the consummation of the transactions contemplated
by this Agreement
and the related Confirmation. No claims have been made under
such lender’s title
insurance policy, and no prior holder of the related Mortgage,
including the
Company, has done, by act or omission, anything which would impair
the coverage
of such lender’s title insurance policy;
(n) There
is
no default, breach, violation or event of acceleration existing
under the
Mortgage or the related Mortgage Note and no event which, with
the passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default,
breach,
violation or event permitting acceleration. With respect to each
Mortgage Loan
which is indicated by the Company to be a Second Lien Mortgage
Loan (as
reflected on the Mortgage Loan Schedule) (i) the First Lien is
in full force and
effect, (ii) there is no default, breach, violation or event
of acceleration
existing under such First Lien mortgage or the related mortgage
note, (iii) to
the best of Company’s knowledge, no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a
default, breach, violation or event of acceleration thereunder,
and either (A)
the First Lien mortgage contains a provision which allows or
(B) applicable law
requires, the mortgagee under the Second Lien Mortgage Loan to
receive notice
of, and affords such mortgagee an opportunity to cure any default
by payment in
full or otherwise under the First Lien mortgage;
(o) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could
give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens
prior to or equal to the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in
determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and
building restriction lines of the Mortgaged Property (and wholly
within the
project with respect to a condominium unit) and no improvements
on adjoining
properties encroach upon the Mortgaged Property except those
which are insured
against by the title insurance policy referred to in clause (m)
above and all
improvements on the property comply with all applicable zoning
and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage
Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage
Loan subject to
exceptions which are in writing in the Mortgage File and were
approved by the
Purchaser prior to the related Closing Date. The Mortgage Notes
and Mortgages
(exclusive of any riders) are on forms generally acceptable to
▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac. The Mortgage Loan bears interest at the Mortgage
Interest Rate set
forth in the related Mortgage Loan Schedule, and Monthly Payments
under the
Mortgage Note are due and payable on the first day of each month.
The Mortgage
contains the usual and enforceable provisions of the originator
at the time of
origination for the acceleration of the payment of the unpaid
principal amount
of the Mortgage Loan if the related Mortgaged Property is sold
without the prior
consent of the mortgagee thereunder;
(r) The
Mortgaged Property is not subject to any material damage by waste,
fire,
earthquake, windstorm, flood or other casualty, and is in good
repair. At
origination of the Mortgage Loan there was, and there currently
is, no
proceeding pending for the total or partial condemnation of the
Mortgaged
Property. There have not been any condemnation proceedings with
respect to the
Mortgaged Property and there are no such proceedings scheduled
to commence at a
future date;
(s) The
related Mortgage contains customary and enforceable provisions
such as to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided thereby.
There is no homestead or other exemption available to the Mortgagor
which would
interfere with the right to sell the Mortgaged Property at a
trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and
duly qualified
if required under applicable law to act as such, has been properly
designated
and currently so serves and is named in the Mortgage, and no
fees or expenses
are or will become payable by the Purchaser to the trustee under
the deed of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged
Property which, (a)
with respect to First Lien Mortgage Loans, is on appraisal form
1004 or form
2055 with an interior inspection, or (b) with respect to Second
Lien Mortgage
Loans, is on appraisal form 704, 2065 or 2055, and (c) with respect
to (a) or
(b) above was signed prior to the final approval of the mortgage
loan
application by a Qualified Appraiser, who had no interest, direct
or indirect,
in the Mortgaged Property or in any loan made on the security
thereof, and whose
compensation is not affected by the approval or disapproval of
the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements
of ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac and Title XI of FIRREA and the regulations
promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated. The
appraisal is in a form acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(v) All
parties which have had any interest in the Mortgage, whether
as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in
which they held
and disposed of such interest, were) (A) in compliance with any
and all
applicable licensing requirements of the laws of the state wherein
the Mortgaged
Property is located, and (B) (1) organized under the laws of
such state, or (2)
qualified to do business in such state, or (3) federal savings
and loan
associations or national banks or a Federal Home Loan Bank or
savings bank
having principal offices in such state, or (4) not doing business
in such
state;
(w) The
related Mortgage Note is not and has not been secured by any
collateral except
the lien of the corresponding Mortgage and the security interest
of any
applicable security agreement or chattel mortgage referred to
in (j) above and
such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no
Mortgage Loan
contains any buydown provisions;
(z) The
Mortgagor is not in bankruptcy and the Mortgagor is not insolvent
and the
Company has no knowledge of any circumstances or condition with
respect to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that could reasonably be expected to cause investors
to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become
delinquent, or materially adversely affect the value or marketability
of the
Mortgage Loan;
(aa) Except
with respect to any IO Mortgage Loan, principal payments on the
Mortgage Loan
commenced no more than sixty (60) days after the funds were disbursed
in
connection with the Mortgage Loan. The Mortgage Loans have an
original term to
maturity of not more than 30 years, with interest payable in
arrears on the
first day of each month. The Mortgage Loan bears interest at
the Mortgage
Interest Rate. With respect to each Mortgage Loan, the Mortgage
Note is payable
on the first day of each month in Monthly Payments which, with
respect to a
Mortgage Loan other than an IO Mortgage Loan or Balloon Mortgage
Loan, requires
a monthly payment which in the case of a Fixed Rate Mortgage
Loan, is sufficient
to fully amortize the original principal balance over the original
term thereof
and to pay interest at the related Mortgage Interest Rate, and
in the case of an
Adjustable Rate Mortgage Loan, is changed on each Adjustment
Date and is
sufficient to fully amortize the original principal balance over
the original
term thereof and to pay interest at the related Mortgage Interest
Rate. With
respect to each Balloon Mortgage Loan, the Mortgage Note requires
a monthly
payment which is sufficient to fully amortize the original principal
balance
over the original term thereof and to pay interest at the related
Mortgage
Interest Rate and requires a final Monthly Payment substantially
greater than
the preceding monthly payment which is sufficient to repay the
remained unpaid
principal balance of the Balloon Mortgage Loan as the Due Date
of such monthly
payment. With respect to each IO Mortgage Loan, the interest-only
period shall
not exceed the interest-only period set forth on the related
Mortgage Loan
Schedule and following the expiration of such interest-only period,
the
remaining Monthly Payments shall be sufficient to fully amortize
the original
principal balance over the remaining term of the Mortgage Loan.
No Mortgage Loan
contains terms or provisions which would result in negative amortization.
No
Mortgage Loan provides for the capitalization or forbearance
of
interest;
(bb) No
Mortgage Loan is subject to a lender-paid mortgage insurance
policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment
of Mortgage is
in recordable form and is acceptable for recording under the
laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the
related Mortgage
Loan Schedule and consists of a single parcel of real property
with a detached
single family residence erected thereon, or a townhouse, or a
two-to four-family
dwelling, or an individual condominium unit in a condominium
project, or an
individual unit in a planned unit development or a de minimis
planned unit
development, provided, however, that no residence or dwelling
is a single parcel
of real property with a cooperative housing corporation erected
thereon, or a
mobile home. As of the date of origination, no portion of the
Mortgaged Property
was used for commercial purposes, and since the date or origination
no portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Except
as
set forth on the related Mortgage Loan Schedule, none of the
Mortgage Loans are
subject to a prepayment penalty. For any Mortgage Loan originated
prior to
October 1, 2002 that is subject to a prepayment penalty, such
prepayment penalty
does not extend beyond five years after the date of origination.
For any
Mortgage Loan originated on or following October 1, 2002 that
is subject to a
prepayment penalty, such prepayment penalty does not extend beyond
three years
after the date of origination. Any such prepayment penalty is
permissible and
enforceable in accordance with its terms upon the mortgagor’s full and voluntary
principal prepayment under applicable law, except to the extent
that: the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium,
receivership and other similar laws relating to creditors' rights;
the
collectability thereof may be limited due to acceleration in
connection with a
foreclosure or other involuntary prepayment; or subsequent changes
in applicable
law may limit or prohibit enforceability thereof under applicable
law. With
respect to any Mortgage Loan that contains a provision permitting
imposition of
a penalty upon a prepayment prior to maturity: (i) the Mortgage
Loan provides
some benefit to the Mortgagor (e.g., a rate or fee reduction)
in exchange for
accepting such prepayment penalty; (ii) the Mortgage Loan’s originator had a
written policy of offering the Mortgagor, or requiring third-party
brokers to
offer the Mortgagor, the option of obtaining a Mortgage Loan
that did not
require payment of such a prepayment penalty and the Mortgagor
was offered such
a product by the Mortgage Loan’s originator; (iii) the prepayment penalty was
adequately disclosed to the Mortgagor in the loan documents pursuant
to
applicable state and federal law; and
(iv)
such prepayment penalty shall not be imposed in any instance
where the Mortgage
Loan is accelerated or paid off in connection with the workout
of a delinquent
mortgage or due to the Mortgagor’s default, notwithstanding that the terms of
the Mortgage Loan or state or federal law might permit the imposition
of such
prepayment penalty;
(ff) The
Mortgaged Property is lawfully occupied under applicable law,
and all
inspections, licenses and certificates required to be made or
issued with
respect to all occupied portions of the Mortgaged Property and,
with respect to
the use and occupancy of the same, including but not limited
to certificates of
occupancy and fire underwriting certificates, have been made
or obtained from
the appropriate authorities;
(gg) [reserved];
(hh)
There is
no pending action or proceeding directly involving the Mortgaged
Property in
which compliance with any environmental law, rule or regulation
is an issue;
there is no violation of any environmental law, rule or regulation
with respect
to the Mortgaged Property; and nothing further remains to be
done to satisfy in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(ii) The
Mortgagor has not notified the Company requesting relief under
the Soldiers’ and
Sailors’ Civil Relief Act of 1940 or the Servicemembers Civil Relief Act,
and
the Company has no knowledge of any relief requested or allowed
to the Mortgagor
under the Soldiers’ and Sailors’ Civil Relief Act of 1940 or the Servicemembers
Civil Relief Act or any similar state laws;
(jj) As
of the
related Closing Date, no Mortgage Loan was in construction or
rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(kk) No
action
has been taken or failed to be taken on or prior to the related
Closing Date
which has resulted or will result in an exclusion from, denial
of, or defense to
coverage under any insurance policy related to a Mortgage Loan
(including,
without limitation, any exclusions, denials or defenses which
would limit or
reduce the availability of the timely payment of the full amount
of the loss
otherwise due thereunder to the insured) whether arising out
of actions,
representations, errors, omissions, negligence, or fraud, or
for any other
reason under such coverage;
(ll) The
Mortgage Loan was originated by a mortgagee approved by the Secretary
of Housing
and Urban Development pursuant to sections 203 and 211 of the
National Housing
Act, a savings and loan association, a savings bank, a commercial
bank, credit
union, insurance company or similar institution which is supervised
and examined
by a federal or state authority;
(mm) With
respect to each Mortgage Loan secured in whole or in part by
the interest of the
Mortgagor as a lessee under a ground lease of a Mortgaged Property
(a “Ground
Lease”) the real property securing such Mortgage Loan is located in
a
jurisdiction in which the use of leasehold estates for residential
properties is
a widely-accepted practice and:
(a) The
Mortgagor is the owner of a valid and subsisting interest as
tenant under the
Ground Lease;
(b) The
Ground Lease is in full force and effect, unmodified and not
supplemented by any
writing or otherwise;
(c) The
mortgagor is not in default under any of the terms thereof and
there are no
circumstances which, with the passage of time or the giving of
notice or both,
would constitute an event of default thereunder;
(d) The
lessor under the Ground Lease is not in default under any of
the terms or
provisions thereof on the part of the lessor to be observed or
performed;
(e) The
term
of the Ground Lease exceeds the maturity date of the related
Mortgage Loan by at
least five years;
(f) The
Ground Lease or a memorandum thereof has been recorded and by
its terms permits
the leasehold estate to be mortgaged. The Ground Lease grants
any leasehold
mortgagee standard protection necessary to protect the security
of a leasehold
mortgagee;
(g) The
Ground Lease does not contain any default provisions that could
give rise to
forfeiture or termination of the Ground Lease except for the
non-payment of the
Ground Lease rents;
(h) The
execution, delivery and performance of the Mortgage do not require
the consent
(other than those consents which have been obtained and are in
full force and
effect) under, and will not contravene any provision of or cause
a default
under, the Ground Lease; and
(i) The
Ground Lease provides that the leasehold can be transferred,
mortgaged and
sublet an unlimited number of times either without restriction
or on payment of
a reasonable fee and delivery of reasonable documentation to
the
lessor;
(nn) With
respect to any broker fees collected and paid on any of the Mortgage
Loans, all
broker fees have been properly assessed to the Mortgagor and
no claims will
arise as to broker fees that are double charged and for which
the Mortgagor
would be entitled to reimbursement;
(oo) With
respect to any Mortgage Loan as to which an affidavit has been
delivered to the
Purchaser certifying that the original Mortgage Note has been
lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently
in default, the
enforcement of such Mortgage Loan will not be materially adversely
affected by
the absence of the original Mortgage Note;
(pp) Each
Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(qq) Except
as
provided in Section 2.06, the Mortgage Note, the Mortgage, the
Assignment of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit
A-1 and
required to be delivered on the related Closing Date have been
delivered to the
Purchaser or its designee all in compliance with the specific
requirements of
this Agreement. With respect to each Mortgage Loan, the Company
is in possession
of a complete Mortgage File and Servicing File except for such
documents as have
been delivered to the Purchaser or its designee;
(rr) All
information supplied by, on behalf of, or concerning the Mortgagor
is true,
accurate and complete and does not contain any statement that
is e inaccurate or
misleading in any material respect;
(ss)
There
does not exist on the related Mortgaged Property any hazardous
substances,
hazardous wastes or solid wastes, as such terms are defined in
the Comprehensive
Environmental Response Compensation and Liability Act, the Resource
Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(tt) No
Mortgage Loan had a Loan-to-Value Ratio or Combined Loan-to-Value
Ratio at the
time of origination of more than 100% or such other percentage
set forth in the
related Confirmation;
(uu) No
Mortgage Loan is (a) subject to, covered by or in violation of
the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”), (b) classified as a “high
cost,” “covered,” “high risk home”, “high-rate, high-fee,” “threshold,” or
“predatory” loan under HOEPA or any other applicable state, federal or local
law, including any predatory or abusive lending laws (or a similarly
classified
loan using different terminology under a law imposing heightened
regulatory
scrutiny or additional legal liability for a residential mortgage
loan having
high interest rates, points and/or fees), (c) a High Cost Loan
or Covered Loan,
as applicable (as such terms are defined in the current Standard
& Poor’s
LEVELS® Glossary, Appendix E) or (d) in violation of any state law or
ordinance
comparable to HOEPA. No Mortgage Loan (including purchase money
loans or
refinance transactions) has an “annual percentage rate” or “total points and
fees” payable by the Mortgager (as each such term is defined under
HOEPA) that
equal or exceed the applicable thresholds defined under HOEPA
(Section 32 of
Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii);
(vv) No
Mortgagor was required to purchase any credit life, disability,
accident,
unemployment, property or health insurance product or debt cancellation
agreement as a condition of obtaining the extension of credit.
No Mortgagor
obtained a prepaid single premium credit life, disability, unemployment,
property, mortgage, accident or health insurance policy in connection
with the
origination of the Mortgage Loan; No proceeds from any Mortgage
Loan were used
to purchase or finance single-premium insurance policies or debt
cancellation
agreements as part of the origination of or as a condition to
closing, such
Mortgage Loan;
(ww) Any
principal advances made to the Mortgagor prior to the related
Closing Date have
been consolidated with the outstanding principal amount secured
by the Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate
and single repayment term. The lien of the Mortgage securing
the consolidated
principal amount is expressly insured as having (A) first lien
priority with
respect to each Mortgage Loan which is indicated by the Company
to be a First
Lien (as reflected on the Mortgage Loan Schedule), or (B) second
lien priority
with respect to each Mortgage Loan which is indicated by the
Company to be a
Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Data Transmission),
in either case, by a title insurance policy, an endorsement to
the policy
insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated principal
amount does
not exceed the original principal amount of the Mortgage Loan;
(xx) Interest
on each Mortgage Loan is calculated on the basis of a 360-day
year consisting of
twelve 30-day months;
(yy) [Reserved];
(zz) With
respect to each MERS Mortgage Loan, a MIN has been assigned by
MERS and such MIN
is accurately provided on the related Mortgage Loan Schedule.
The related
assignment of Mortgage to MERS has been duly and properly recorded;
(aaa) With
respect to each MERS Mortgage Loan, the Company has not received
any notice of
liens or legal actions with respect to such Mortgage Loan and
no such notices
have been electronically posted by MERS;
(bbb) Any
Mortgaged Property that is considered manufactured housing shall
be legally
classified as real property, is permanently affixed to a foundation
and must
assume the characteristics of site-built housing and must otherwise
conform to
the requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, including without
limitation the
requirement that such manufactured housing will be the principal
residence of
the Mortgagor upon origination of the Mortgage Loan;
(ccc) With
respect to each Mortgage Loan, the Company has fully and accurately
furnished
complete information (e.g., favorable and unfavorable) on the
related borrower
credit files to Equifax, Experian and Trans Union Credit Information
Company
(three of the credit repositories), in accordance with the Fair
Credit Reporting
Act and its implementing regulations, on a monthly basis and
the Company will
furnish for each Mortgage Loan, in accordance with the Fair Credit
Reporting Act
and its implementing regulations, accurate and complete information
(e.g.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis;
(ddd) The
Company has complied with all applicable anti-money laundering
laws and
regulations, including without limitation the USA Patriot Act
of 2001
(collectively, the “Anti-Money
Laundering Laws”);
the
Company has established an anti-money laundering compliance program
as required
by the Anti-Money Laundering Laws, has conducted the requisite
due diligence in
connection with the origination of each Mortgage Loan for purposes
of the
Anti-Money Laundering Laws, including with respect to the legitimacy
of the
applicable Mortgagor and the origin of the assets used by the
said Mortgagor to
purchase the property in question, and maintains, and will maintain,
sufficient
information to identify the applicable Mortgagor for purposes
of the Anti-Money
Laundering Laws. No Mortgage Loan is subject to nullification
pursuant to
Executive Order 13224 (the “Executive Order”) or the regulations promulgated by
the Office of Foreign Assets Control of the United States Department
of the
Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the
OFAC Regulations, and no Mortgagor is subject to the provisions
of such
Executive Order or the OFAC Regulations nor listed as a “blocked person” for
purposes of the OFAC Regulations;
(eee) With
respect to each Mortgage Loan which is a Second Lien Mortgage
Loan (i) if the
related first lien provides for negative amortization, the LTV
was calculated at
the maximum principal balance of such first lien that could result
upon
application of such negative amortization feature, and (ii) either
no consent
for the Mortgage Loan is required by the holder of the first
lien or such
consent has been obtained and is contained in the Mortgage File;
(fff) No
predatory or deceptive lending practices, including but not limited
to, the
extension of credit to the applicable Mortgagor without regard
for said
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to
said Mortgagor which has no apparent benefit to said Mortgagor,
were employed by
the originator of the Mortgage Loan in connection with the origination
of the
Mortgage Loan. Each
Mortgage Loan is in compliance with the anti-predatory lending
eligibility for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(ggg) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”) or New York Banking Law 6-1. No Mortgage
Loan secured by owner occupied real property or an owner occupied
manufactured
home located in the State of Georgia was originated (or modified)
on or after
October 1, 2002 through and including March 6, 2003;
(hhh) No
Mortgage Loan (a) is secured by property located in the State
of New York; (b)
had an unpaid principal balance at origination of $300,000 or
less, and (c) has
an application date on or after April 1, 2003, the terms of which
Mortgage Loan
equal or exceed either the APR or the points and fees threshold
for “high-cost
home loans,” as defined in Section 6-L of the New York State Banking
Law;
(iii) No
Mortgagor was encouraged or required to select a Mortgage Loan
product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, taking into account such facts as,
without
limitation, the mortgage loan’s requirements and the Mortgagor’s credit history,
income, assets and liabilities. Any Mortgagor who sought financing
through
Mortgage Loan originator’s higher-priced subprime lending channel was directed
towards or offered the Mortgage Loan originator’s standard mortgage line if the
Mortgagor was able to qualify for one of the standard products.
If, at the time
of loan application, the Mortgagor may have qualified for a lower
cost credit
product then offered by any mortgage lending affiliate of the
Mortgage Loan’s
originator, the Mortgage Loan’s originator referred the Mortgagor’s application
to such affiliate for underwriting consideration;
(jjj) The
methodology used in underwriting the extension of credit for
each Mortgage Loan
did not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit.
The
methodology employed objective criteria that related such facts
as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology,
the Mortgage
Loan’s originator made a reasonable determination that at the time
of
origination the Mortgagor had the ability to make timely payments
on the
Mortgage Loan;
(kkk) All
points, fees and charges (including finance charges) and whether
or not
financed, assessed, collected or to be collected in connection
with the
origination and servicing of each Mortgage Loan have been disclosed
in writing
to the Mortgagor in accordance with applicable state and federal
law and
regulation;
(lll) All
points and fees related to each Mortgage Loan were disclosed
in writing to the
Mortgagor in accordance with applicable state and federal law
and regulation. No
Mortgagor was charged “points and fees” (whether or not financed) in an amount
that exceed the greater of (1) 5% of the principal amount of
such Mortgage Loan
(such 5% limitation is calculated in accordance with ▇▇▇▇▇▇ Mae’s requirements
set forth in the ▇▇▇▇▇▇ ▇▇▇ Selling Guide) or (2) $1,000;
(mmm) [Reserved];
(nnn) As
of the
Closing Date, each
Loan
is eligible for sale in the secondary mortgage market or for
securitization
without unreasonable credit enhancement.
(ooo) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 14, 2003 (Act 1340 or 2003);
(ppp) No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
loan statute effective June 25, 2003 (Ky. Rev. Stat. Section
360.100).
(qqq) [Reserved];
(rrr) No
Mortgage Loan originated in the City of Oakland is subject to
the City of
Oakland, California Ordinance 12361, (the “Ordinance”) as a home
loan;
(sss) No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma
Home Ownership and
Equity Protection Act;
(ttt) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat.
137/1 et
seq.);
(uuu) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. ▇▇▇. §§ 58-21A-1 et
seq.);
(vvv) No
Mortgage Loan is a “High-Cost Home Loan” under the New Jersey Home Ownership
Security Act of 2002 (the “NJ Act”); and each Mortgage Loan subject to the NJ
Act is considered under the NJ Act as, either, a (1) purchase
money Home Loan,
(2) purchase money Covered Loan, or (3) a rate/term refinance
Home Loan;
(www) No
Mortgage Loan originated in the city of Los Angeles, California
on or after the
effective date of the Los Angeles, California anti-predatory
lending ordinance
is a “high-cost refinance home loan” under such ordinance;
(xxx) No
Mortgage Loan that is secured by property located within the
State of Maine
meets the definition of a (i) “high-rate, high-fee” mortgage loan under Article
VIII, Title 9-A of the Maine Consumer Credit Code No Mortgage
Loan or (ii)
“High-Cost Home Loan” as defined under the Maine House ▇▇▇▇ 383 ▇.▇. 494,
effective as of September 13, 2003;
(yyy) No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising out of
or relating in any way to the Mortgage Loan transaction;
(zzz) With
respect to any Mortgage Loan for which a mortgage loan application
was submitted
by the Mortgagor after April 1, 2004, no such Mortgage Loan secured
by Mortgaged
Property in the State of Illinois which has a Mortgage Interest
Rate in excess
of 8.0% per annum has lender-imposed fees (or other charges)
in excess of 3.0%
of the original principal balance of the Mortgage Loan;
(aaaa) The
Mortgagor has not made or caused to be made any payment in the
nature of an
‘average’ or ‘yield spread premium’ to a mortgage broker or a like Person which
has not been fully disclosed to the Mortgagor;
(bbbb) No
Mortgage Loan is a Convertible Mortgage Loan;
(cccc) No
Mortgage Loan secured by a Mortgaged Property located in the
Commonwealth of
Massachusetts was made to pay off or refinance an existing loan
or other debt of
the related borrower (as the term "borrower" is defined in the
regulations
promulgated by the Massachusetts Secretary of State in connection
with the
Massachusetts General Laws Chapter 183, Section 28C) unless (a)
the related
Mortgage Interest Rate (that would be effective once the introductory
rate
expires, with respect to Adjustable Rate Mortgage Loans) did
or would not exceed
by more than 2.50% the yield on United States Treasury securities
having
comparable periods of maturity to the maturity of the related
Mortgage Loan as
of the fifteenth day of the month immediately preceding the month
in which the
application for the extension of credit was received by the related
lender or
(b) the Mortgage Loan is an “open-end home loan” (as such term is used in the
Massachusetts General Laws Chapter 183, Section 28C or the regulations
promulgated in connection therewith) and the related Mortgage
Note provides that
the related Mortgage Interest Rate may not exceed at any time
the Prime rate
index as published in the Wall Street Journal plus a margin of
one
percent;
(dddd) No
Mortgagor was charged “points and fees” in an amount greater than (a) $1,000 or
(b) 5% of the principal amount of the related Mortgage Loan,
whichever is
greater. For purposes of this representation, “points and fees” (x) include
origination, underwriting, broker and finder’s fees and charges that the lender
imposed as a condition of making the Mortgage Loan, whether they
are paid to the
lender or a third party; and (y) exclude bona fide discount points,
fees paid
for actual services rendered in connection with the origination
of the Mortgage
(such as attorneys’ fees, notaries fees and fees paid for property appraisals,
credit reports, surveys, title examinations and extracts, flood
and tax
certifications, and home inspections); the cost of mortgage insurance
or
credit-risk price adjustments; the costs of title, hazard, and
flood insurance
policies; state and local transfer taxes or fees; escrow deposits
for the future
payment of taxes and insurance premiums; and other miscellaneous
fees and
charges that, in total, do not exceed 0.25 percent of the loan
amount;
and
(eeee) With
respect to each Mortgage Loan, the related residence or dwelling
is not a
manufactured housing unit.
EXHIBIT
E
REQUEST
FOR RELEASE
To: U.S.
Bank
National Association
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Document Collateral Services/ MASTR 2006-HE4
▇▇▇▇▇
Fargo Bank, N.A.
Attn:
Inventory Control
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Re:
|
Pooling
and Servicing Agreement, dated as of November 1, 2006,
among
Mortgage Asset Securitization Transactions, Inc., ▇▇▇▇▇
Fargo
Bank,
N.A. as Master Servicer, Custodian and Trust Administrator,
▇▇▇▇▇
Fargo Bank, N.A. as Servicer, Barclays
Capital Real Estate
Inc.
d/b/a HomEq Servicing and
U.S. Bank National Association,
Mortgage
Pass-Through Certificates, Series
2006-HE4
|
In
connection with the administration of the Mortgage Loans held by
you as
Custodian pursuant to the above-captioned Pooling and Servicing Agreement,
we
request the release, and hereby acknowledge receipt of the [Custodian’s]
[Trustee’s] Mortgage File Or the Mortgage Loan described below, for the reason
indicated.
In
addition, all amounts have been received in connection with such
payment,
repurchase or liquidation and have been credited to the related Collection
Account.
Mortgage
Loan Number:
Mortgagor
Name. Address & Zip Code:
Reason
for Requesting Documents
(check
one):
|
1.
|
Mortgage
Paid in Full ____
|
|
2.
|
Foreclosure
____
|
|
3.
|
Substitution
____
|
|
4.
|
Other
Liquidation (Repurchases, etc.) ____
|
|
5.
|
Nonliquidation
Reason:
______________________________________
|
Address
to which Custodian should deliver
the
[Custodian's] [Trustee’s] Mortgage File:
|
By:
|
|||
|
(authorized
signer)
|
|||
|
Issuer:
|
|||
|
Address:
|
|||
|
Date:
|
|||
[Custodian]
[Trustee]
[U.S.
Bank National Association]
[▇▇▇▇▇
Fargo Bank, N.A.]
Please
acknowledge the execution of the above request by your signature
and date
below:
_____________________ ___________
Signature
Date
Documents
returned to [Custodian][Trustee]:
_____________________ ___________
[Custodian][Trustee] Date
EXHIBIT
F-1
FORM
OF
TRANSFEROR REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Transfer Unit / MABS 2006-HE4
|
Re:
|
MASTR
Asset Backed Securities Trust 2006-HE4,
Mortgage
Pass-Through Certificates, Class ___,
representing
a ___% Class ___ Percentage
Interest
|
Ladies
and Gentlemen:
In
connection with the transfer by ________________ (the “Transferor”) to
________________ (the “Transferee”) of the captioned Mortgage Pass-Through
certificates (the “Certificates”), the Transferor hereby certifies as
follows:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged,
sold,
disposed of or otherwise transferred any Certificate, any interest
in any
Certificate or any other similar security to any person in any manner,
(b) has
solicited any offer to buy or to accept a pledge, disposition or
other transfer
of any Certificate, any interest in any Certificate or any other
similar
security from any person in any manner, (c) has otherwise approached
or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has
made any
general solicitation by means of general advertising or in any other
manner, (e)
has taken any other action, that (in the case of each of subclauses
(a) through
(e) above) would constitute a distribution of the Certificates under
the
Securities Act of 1933, as amended (the “1933 Act”), or would render the
disposition of any Certificate a violation of Section 5 of the 1933
Act or any
state securities law or would require registration or qualification
pursuant
thereto. The Transferor will not act, nor has it authorized or will
it authorize
any person to act, in any manner set forth in the foregoing sentence
with
respect to any Certificate. The Transferor will not sell or otherwise
transfer
any of the Certificates, except in compliance with the provisions
of that
certain Pooling and Servicing Agreement, dated as of November 1,
2006, among
Mortgage Asset Securitization Transactions, Inc. as Depositor, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing,
as
Servicer, ▇▇▇▇▇ Fargo Bank, N.A. as Servicer, ▇▇▇▇▇ Fargo Bank, N.A.
as Master
Servicer, Trust Administrator and Custodian and U.S. Bank National
Association
as Trustee (the “Pooling and Servicing Agreement”), pursuant to which Pooling
and Servicing Agreement the Certificates were issued.
Capitalized
terms used but not defined herein shall have the meanings assigned
thereto in
the Pooling and Servicing Agreement.
|
Very
truly yours,
|
||
|
[Transferor]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
FORM
OF
TRANSFEREE REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Transfer Unit / MABS 2006-HE4
Swiss
Re
Financial Products Corporation
▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Head of Operations
|
Re:
|
MASTR
Asset Backed Securities Trust 2006-HE4, Mortgage Pass-
Through
Certificates, Series 2006-HE4, Class ___, representing
a ___%
Class
___
Percentage Interest
|
Ladies
and Gentlemen:
In
connection with the purchase from ______________________ (the “Transferor”) on
the date hereof of the captioned trust certificates (the “Certificates”),
_______________ (the “Transferee”) hereby certifies as follows:
1. The
Transferee is a “qualified institutional buyer” as that term is defined in Rule
144A (“Rule 144A”) under the Securities Act of 1933 (the “1933 Act”) and has
completed either of the forms of certification to that effect attached
hereto as
Annex 1 or Annex 2. The Transferee is aware that the sale to it is
being made in
reliance on Rule 144A. The Transferee is acquiring the Certificates
for its own
account or for the account of a qualified institutional buyer, and
understands
that such Certificate may be resold, pledged or transferred only
(i) to a person
reasonably believed to be a qualified institutional buyer that purchases
for its
own account or for the account of a qualified institutional buyer
to whom notice
is given that the resale, pledge or transfer is being made in reliance
on Rule
144A, or (ii) pursuant to another exemption from registration under
the 1933
Act.
2. The
Transferee has been furnished with all information regarding (a)
the
Certificates and distributions thereon, (b) the nature, performance
and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement
referred to below, and (d) any credit enhancement mechanism associated
with the
Certificates, that it has requested.
3. With
respect to a transfer of the Class CE Certificates, the Transferee
agrees to
provide to the Trust Administrator, the Swap Provider and the Interest
Rate Cap
Provider the appropriate tax certification form (i.e., IRS Form W-9
or IRS Form
W-8BEN, W-8IMY or W-8ECI, as applicable (or any successor form thereto)),
and
agrees to update such forms (i) upon expiration of any such form,
(ii) as
required under then applicable U.S. Treasury regulations and (iii)
promptly upon
learning that any IRS Form W-9 or IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇, ▇-▇▇▇▇
or W-8ECI, as
applicable (or any successor form thereto), has become obsolete or
incorrect.
In
addition, if the transfer contemplated hereby causes the Supplemental
Interest
Trust or the Cap Account to be beneficially owned by two or more
persons for
federal income tax purposes, or continue to be so treated, (a) each
Transferee
shall comply with the foregoing conditions, (b) the proposed majority
Holder of
the Class CE Certificates (or each Holder, if there is or would be
no majority
Holder) (A) shall provide, or cause to be provided, on behalf of
the
Supplemental Interest Trust and the Cap Account, if applicable, the
appropriate
tax certification form that would be required from the Supplemental
Interest
Trust or the Cap Account, as applicable, to eliminate any withholding
or
deduction for taxes from amounts payable by the Swap Provider or
the Interest
Rate Cap Provider, pursuant to the Interest Rate Swap Agreement or
the Interest
Rate Cap Agreement, to the Trust Administrator, the Swap Provider
and the
Interest Rate Cap Provider on behalf of the Supplemental Interest
Trust or the
Cap Account (i.e., IRS Form W-9 or IRS Form W-8BEN, W-8IMY or W-8ECI,
as
applicable (or any successor form thereto) as a condition to such
transfer,
together with any applicable attachments) and (B) each Transferee
agrees to
update such form (x) upon expiration of any such form, (y) as required
under
then applicable U.S. Treasury regulations and (z) promptly upon learning
that
such form has become obsolete or incorrect.
The
Transferee hereby authorizes the Trust Administrator to provide any
such tax
certification form to the Swap Provider and the Interest Rate Cap
Provider, upon
its request, solely to the extent the Swap Provider or the Interest
Rate Cap
Provider has not received such IRS Form directly from the Holder
of the Class CE
Certificates. Each Holder of a Class CE Certificate by its purchase
of such
Certificate is deemed to consent to any such IRS Form being so forwarded.
Upon
the request of the Swap Provider or the Interest Rate Cap Provider,
the Trust
Administrator shall be required to forward any tax certification
received by it
to the Swap Provider or the Interest Rate Cap Provider at the last
known address
provided to it, and, subject to Section 8.01 of the Pooling and Servicing
Agreement, shall not be liable for the receipt of such tax certification
by the
Swap Provider or the Interest Rate Cap Provider, nor any action taken
or not
taken by the Swap Provider or the Interest Rate Cap Provider with
respect to
such tax certification. Any purported sales or transfers of the Class
CE
Certificate to a Transferee which does not comply with the requirements
of the
preceding paragraph shall be deemed null and void under the Pooling
and
Servicing Agreement. The Trust Administrator shall have no duty to
take any
action to correct any misstatement or omission in any tax certification
provided
to it by the Holder of the Class CE Certificates and forwarded to
the Swap
Provider or the Interest Rate Cap Provider.
All
capitalized terms used but not otherwise defined herein have the
respective
meanings assigned thereto in the Pooling and Servicing Agreement,
dated as of
November 1, 2006, among Mortgage Asset Securitization Transactions,
Inc. as
Depositor, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing,
as
Servicer, ▇▇▇▇▇ Fargo Bank, N.A. as Servicer, ▇▇▇▇▇ Fargo Bank, N.A.
as Master
Servicer, Trust Administrator and Custodian and U.S. Bank National
Association
as Trustee, pursuant to which the Certificates were issued.
|
[TRANSFEREE]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
ANNEX
1 TO EXHIBIT F-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and ▇▇▇▇▇ Fargo Bank, N.A., as Trust Administrator, with respect
to the Mortgage Pass-Through certificates (the “Certificates”) described in the
Transferee Certificate to which this certification relates and to
which this
certification is an Annex:
1.
As
indicated below, the undersigned is the President, Chief Financial
Officer,
Senior Vice President or other executive officer of the entity purchasing
the
Certificates (the “Transferee”).
2.
In
connection with purchases by the Transferee, the Transferee is a
“qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because (i) the Transferee owned and/or invested on a
discretionary basis $______________________1
in
securities (except for the excluded securities referred to below)
as of the end
of the Transferee's most recent fiscal year (such amount being calculated
in
accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the
category marked below.
___
CORPORATION, ETC. The Transferee is a corporation (other than a bank,
savings
and loan association or similar institution), Massachusetts or similar
business
trust, partnership, or any organization described in Section 501(c)(3)
of the
Internal Revenue Code of 1986.
___
BANK.
The Transferee (a) is a national bank or banking institution organized
under the
laws of any State, territory or the District of Columbia, the business
of which
is substantially confined to banking and is supervised by the State
or
territorial banking commission or similar official or is a foreign
bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000
as demonstrated in its latest annual financial statements, a copy
of which is
attached hereto.
___
SAVINGS AND LOAN. The Transferee (a) is a savings and loan association,
building
and loan association, cooperative bank, homestead association or
similar
institution, which is supervised and examined by a State or Federal
authority
having supervision over any such institutions or is a foreign savings
and loan
association or equivalent institution and (b) has an audited net
worth of at
least
___
BROKER-DEALER. The Transferee is a dealer registered pursuant to
Section 15 of
the Securities Exchange Act of 1934.
___
INSURANCE COMPANY. The Transferee is an insurance company whose primary
and
predominant business activity is the writing of insurance or the
reinsuring of
risks underwritten by insurance companies and which is subject to
supervision by
the insurance commissioner or a similar official or agency of a State,
territory
or the District of Columbia.
___
STATE
OR LOCAL PLAN. The Transferee is a plan established and maintained
by a State,
its political subdivisions, or any agency or instrumentality of the
State or its
political subdivisions, for the benefit of its employees.
___
ERISA
PLAN. The Transferee is an employee benefit plan within the meaning
of Title I
of the Employee Retirement Income Security Act of 1974.
___
INVESTMENT ADVISOR. The Transferee is an investment advisor registered
under the
Investment Advisers Act of 1940.
3.
The
term “SECURITIES” as used herein DOES NOT INCLUDE (i) securities of issuers that
are affiliated with the Transferee, (ii) securities that are part
of an unsold
allotment to or subscription by the Transferee, if the Transferee
is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v)
loan
participations, (vi) repurchase agreements, (vii) securities owned
but subject
to a repurchase agreement and (viii) currency, interest rate and
commodity
swaps.
4.
For
purposes of determining the aggregate amount of securities owned
and/or invested
on a discretionary basis by the Transferee, the Transferee used the
cost of such
securities to the Transferee and did not include any of the securities
referred
to in the preceding paragraph. Further, in determining such aggregate
amount,
the Transferee may have included securities owned by subsidiaries
of the
Transferee, but only if such subsidiaries are consolidated with the
Transferee
in its financial statements prepared in accordance with generally
accepted
accounting principles and if the investments of such subsidiaries
are managed
under the Transferee's direction. However, such securities were not
included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under
the
Securities Exchange Act of 1934.
5.
The
Transferee acknowledges that it is familiar with Rule 144A and understands
that
the Transferor and other parties related to the Certificates are
relying and
will continue to rely on the statements made herein because one or
more sales to
the Transferee may be in reliance on Rule 144A.
|
___
|
___
|
Will
the Transferee be purchasing the Certificates
|
|
Yes
|
No
|
only
for the Transferee's own account?
|
6.
If the
answer to the foregoing question is “no”, the Transferee agrees that, in
connection with any purchase of securities sold to the Transferee
for the
account of a third party (including any separate account) in reliance
on Rule
144A, the Transferee will only purchase for the account of a third
party that at
the time is a “qualified institutional buyer” within the meaning of Rule 144A.
In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a
current
representation letter from such third party or taken other appropriate
steps
contemplated by Rule 144A to conclude that such third party independently
meets
the definition of “qualified institutional buyer” set forth in Rule
144A.
7.
The
Transferee will notify each of the parties to which this certification
is made
of any changes in the information and conclusions herein. Until such
notice is
given, the Transferee's purchase of the Certificates will constitute
a
reaffirmation of this certification as of the date of such purchase.
In
addition, if the Transferee is a bank or savings and loan as provided
above, the
Transferee agrees that it will furnish to such parties updated annual
financial
statements promptly after they become available.
Dated:
___________
|
Print
Name of Transferee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
1 Transferee
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Transferee is a dealer, and, in that case,
Transferee must own
and/or invest on a discretionary basis at least $10,000,000
in securities.
$25,000,000 as demonstrated in its latest annual financial
statements, A COPY OF
WHICH IS ATTACHED HERETO.
ANNEX
2 TO EXHIBIT F-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and ▇▇▇▇▇ Fargo Bank, N.A., as Trust Administrator, with respect
to the Mortgage Pass-Through certificates (the “Certificates”) described in the
Transferee Certificate to which this certification relates and to
which this
certification is an Annex:
1.
As
indicated below, the undersigned is the President, Chief Financial
Officer or
Senior Vice President of the entity purchasing the Certificates (the
“Transferee”) or, if the Transferee is a “qualified institutional buyer” as that
term is defined in Rule 144A under the Securities Act of 1933 (“Rule 144A”)
because the Transferee is part of a Family of Investment Companies
(as defined
below), is such an officer of the investment adviser (the
“Adviser”).
2.
In
connection with purchases by the Transferee, the Transferee is a
“qualified
institutional buyer” as defined in Rule 144A because (i) the Transferee is an
investment company registered under the Investment Company Act of
1940, and (ii)
as marked below, the Transferee alone, or the Transferee's Family
of Investment
Companies, owned at least $100,000,000 in securities (other than
the excluded
securities referred to below) as of the end of the Transferee's most
recent
fiscal year. For purposes of determining the amount of securities
owned by the
Transferee or the Transferee's Family of Investment Companies, the
cost of such
securities was used.
|
____
|
The
Transferee owned $___________________ in securities (other
than the
excluded securities referred to below) as of the end of
the Transferee's
most recent fiscal year (such amount being calculated in
accordance with
Rule 144A).
|
|
____
|
The
Transferee is part of a Family of Investment Companies
which owned in the
aggregate $______________ in securities (other than the
excluded
securities referred to below) as of the end of the Transferee's
most
recent fiscal year (such amount being calculated in accordance
with Rule
144A).
|
3.
The
term “FAMILY OF INVESTMENT COMPANIES” as used herein means two or more
registered investment companies (or series thereof) that have the
same
investment adviser or investment advisers that are affiliated (by
virtue of
being majority owned subsidiaries of the same parent or because one
investment
adviser is a majority owned subsidiary of the other).
4.
The
term “SECURITIES” as used herein does not include (i) securities of issuers that
are affiliated with the Transferee or are part of the Transferee's
Family of
Investment Companies, (ii) securities issued or guaranteed by the
U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates
of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities
owned but
subject to a repurchase agreement and (vii) currency, interest rate
and
commodity swaps.
5.
The
Transferee is familiar with Rule 144A and understands that the parties
to which
this certification is being made are relying and will continue to
rely on the
statements made herein because one or more sales to the Transferee
will be in
reliance on Rule 144A. In addition, the Transferee will only purchase
for the
Transferee's own account.
6.
The
undersigned will notify the parties to which this certification is
made of any
changes in the information and conclusions herein. Until such notice,
the
Transferee's purchase of the Certificates will constitute a reaffirmation
of
this certification by the undersigned as of the date of such
purchase.
Dated:
__________
|
Print
Name of Transferee or Advisor
|
||
|
Name
|
||
|
Title
|
||
|
IF
AN ADVISER:
|
||
|
Print
Name of Buyer
|
||
FORM
OF TRANSFEREE REPRESENTATION LETTER
The
undersigned hereby certifies on behalf of the purchaser named below
(the
“Purchaser”) as follows:
1.
I am
an executive officer of the Purchaser.
2.
The
Purchaser is a “qualified institutional buyer”, as defined in Rule 144A, (“Rule
144A”) under the Securities Act of 1933, as amended.
3.
As of
the date specified below (which is not earlier than the last day
of the
Purchaser's most recent fiscal year), the amount of “securities”, computed for
purposes of Rule 144A, owned and invested on a discretionary basis
by the
Purchaser was in excess of $100,000,000.
|
Name
of Purchaser
__________________________
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Date
of
this certificate: ______________
Date
of
information provided in paragraph 3: ______________
EXHIBIT
F-2
FORM
OF
TRANSFER AFFIDAVIT AND AGREEMENT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
1. The
undersigned is an officer of the proposed Transferee of an Ownership
Interest in
a Class [R] [R-X] Certificate (the “Certificate”) issued pursuant to the Pooling
and Servicing Agreement, (the “Agreement”), relating to the above-referenced
Certificates, dated as of November 1, 2006 (the “Agreement”),
among
Mortgage Asset Securitization Transactions, Inc., as depositor (the
“Depositor”),
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing (“HomEq Servicing”),
as
servicer, ▇▇▇▇▇ Fargo Bank, N.A., as servicer (together with HomEq
Servicing,
the “Servicers”),
▇▇▇▇▇
Fargo Bank, N.A., master servicer (“the Master
Servicer”),
trust
administrator (the “Trust Administrator”) and custodian (the “Custodian”)
and
U.S. Bank National Association, as trustee (the “Trustee”).
Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed to such terms in the Agreement.
The Transferee
has authorized the undersigned to make this affidavit on behalf of
the
Transferee for the benefit of the Depositor and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date
of the
Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership
Interest in the Certificate for its own account. The Transferee has
no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or
middleman) for
a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability
for the tax
if the subsequent Transferee furnished to such Person an affidavit
that such
subsequent Transferee is a Permitted Transferee and, at the time
of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be
imposed on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted
Transferee is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which
the record
holder furnishes to the pass-through entity an affidavit that such
record holder
is a Permitted Transferee and the pass-through entity does not have
actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment
trust
or common trust fund, a partnership, trust or estate, and certain
cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02 (c) of the
Agreement and
understands the legal consequences of the acquisition of an Ownership
Interest
in the Certificate including, without limitation, the restrictions
on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory
sales.
The Transferee expressly agrees to be bound by and to abide by the
provisions of
Section 5.02 (c) of the Agreement and the restrictions noted on the face
of
the Certificate. The Transferee understands and agrees that any breach
of any of
the representations included herein shall render the Transfer to
the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person
to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee
is acting as
nominee, trustee or agent, and the Transferee will not Transfer its
Ownership
Interest or cause any Ownership Interest to be Transferred to any
Person that
the Transferee knows is not a Permitted Transferee. In connection
with any such
Transfer by the Transferee, the Transferee agrees to deliver to the
Trust
Administrator a certificate substantially in the form set forth as
Exhibit L to the Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person
to which the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due,
intends to pay
its debts as they come due in the future, and understands that the
taxes payable
with respect to the Certificate may exceed the cash flow with respect
thereto in
some or all periods and intends to pay such taxes as they become
due. The
Transferee does not have the intention to impede the assessment or
collection of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is [_____________].
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual
interest
will remain liable for any taxes due with respect to the income on
such residual
interest, unless no significant purpose of the transfer was to impede
the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable
to a
foreign permanent establishment or fixed base, within the meaning
of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
o
The
present
value of the anticipated tax liabilities associated with holding
the
Certificate, as applicable, does not exceed the sum of:
|
(i)
|
the
present value of any consideration given to the Transferee
to acquire such
Certificate;
|
|
(ii)
|
the
present value of the expected future distributions on such
Certificate;
and
|
|
(iii)
|
the
present value of the anticipated tax savings associated
with holding such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay
tax at the
highest rate currently specified in Section 11(b) of the Code (but
the tax rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been
subject to the
alternative minimum tax under Section 55 of the Code in the preceding
two years
and will compute its taxable income in the current taxable year using
the
alternative minimum tax rate) and (ii) present values are computed
using a
discount rate equal to the short-term Federal rate prescribed by
Section 1274(d)
of the Code for the month of the transfer and the compounding period
used by the
Transferee.
o The
transfer of the
Certificate complies with U.S. Treasury Regulations Sections 1.860E-1(c)(5)
and
(6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income
from the
Certificate will only be taxed in the United
States;
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee
had gross assets
for financial reporting purposes (excluding any obligation
of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and
net assets in
excess of $10 million;
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another
“eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section
1.860E-1(c)(5) of
the U.S. Treasury Regulations;
and
|
|
(iv)
|
the
Transferee determined the consideration paid to it to acquire
the
Certificate based on reasonable market assumptions (including,
but not
limited to, borrowing and investment rates, prepayment
and loss
assumptions, expense and reinvestment assumptions, tax
rates and other
factors specific to the Transferee) that it has determined
in good
faith.
|
o None
of the
above.
13. The
Transferee is not an employee benefit plan that is subject to Title
I of ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to
Title I of
ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its
behalf, pursuant to the authority of its Board of Directors, by its
[Vice]
President, attested by its [Assistant] Secretary, this ____ day of
__________,
20__.
|
[OWNER]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
[Vice]
President
|
|
ATTEST:
|
By:
|
||
|
Name:
|
||
|
Title:
|
[Assistant]
Secretary
|
Personally
appeared before me the above-named , known or proved to me to be
the same person
who executed the foregoing instrument and to be a [Vice] President
of the Owner,
and acknowledged to me that [he/she] executed the same as [his/her]
free act and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, 20___.
|
Notary
Public
|
|
|
County
of __________________
State
of ___________________
My
Commission expires:
|
FORM
OF TRANSFEROR AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
__________________________,
being duly sworn, deposes, represents and warrants as follows:
1.
I
am a
____________________ of ____________________________ (the “Owner”), a
corporation duly organized and existing under the laws of ______________,
on
behalf of whom I make this affidavit.
2.
The
Owner
is not transferring the Residual Certificates (the “Residual Certificates”) to
impede the assessment or collection of any tax.
3.
The
Owner
has no actual knowledge that the Person that is the proposed transferee
(the
“Purchaser”) of the Residual Certificates: (i) has insufficient assets to pay
any taxes owed by such proposed transferee as holder of the Residual
Certificates; (ii) may become insolvent or subject to a bankruptcy
proceeding
for so long as the Residual Certificates remain outstanding; and
(iii) is not a
Permitted Transferee.
4.
The
Owner
understands that the Purchaser has delivered to the Trust Administrator
a
transfer affidavit and agreement in the form attached to the Pooling
and
Servicing Agreement as Exhibit F-2. The Owner does not know or believe
that any
representation contained therein is false.
5.
At
the
time of transfer, the Owner has conducted a reasonable investigation
of the
financial condition of the Purchaser as contemplated by Treasury
Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation,
the Owner has
determined that the Purchaser has historically paid its debts as
they became due
and has found no significant evidence to indicate that the Purchaser
will not
continue to pay its debts as they become due in the future. The Owner
understands that the transfer of a Residual Certificate may not be
respected for
United States income tax purposes (and the Owner may continue to
be liable for
United States income taxes associated therewith) unless the Owner
has conducted
such an investigation.
6.
Capitalized
terms not otherwise defined herein shall have the meanings ascribed
to them in
the Pooling and Servicing Agreement.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its
behalf, pursuant to the authority of its Board of Directors, by its
[Vice]
President, attested by its [Assistant] Secretary, this ____ day of
___________,
20__.
|
[OWNER]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
[Vice]
President
|
|
|
ATTEST:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
[Assistant]
Secretary
|
|
Personally
appeared before me the above-named , known or proved to me to be
the same person
who executed the foregoing instrument and to be a [Vice] President
of the Owner,
and acknowledged to me that [he/she] executed the same as [his/her]
free act and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, 20___.
|
Notary
Public
|
|
|
County
of __________________
State
of ___________________
My
Commission expires:
|
EXHIBIT
G
FORM
OF
CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________,
[2006]
Mortgage
Asset Securitization Transactions, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.
Bank
National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Structured Finance/ MASTR 2006-HE4
|
Re:
|
MASTR
Asset Backed Securities Trust 2006-HE4,
Mortgage
Pass-Through Certificates, Class
|
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance of MASTR Asset
Backed Securities Trust 2006-HE4, Mortgage Pass-Through Certificates,
Series
2006-HE4, Class [CE] [P] [R](the “Certificates”), issued pursuant to a Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”) dated as of
November 1, 2006, among Mortgage Asset Securitization Transactions,
Inc. as
depositor (the “Depositor”), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer, trust
administrator and custodian (the “Master Servicer”, the “Trust Administrator”
and the “Custodian”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer, Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing
as a
servicer (together with ▇▇▇▇▇ Fargo Bank, N.A., the “Servicers”) and U.S. Bank
National Association as trustee (the “Trustee”). Capitalized terms used herein
and not otherwise defined shall have the meanings assigned thereto
in the
Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and
warrants to, and covenants with the Depositor, the Trust Administrator,
the
Trustee and the Master Servicer that:
The
Certificates (i) are not being acquired by, and will not be transferred
to, any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts
and annuities,
▇▇▇▇▇ plans and bank collective investment funds and insurance company
general
or separate accounts in which such plans, accounts or arrangements
are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal
Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R. ss. 2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan
assets within
the meaning of the DOL regulation at 29 C.F.R. ss. 2510.3-101.
|
Very
truly yours,
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
H
FORM
OF
REPORT PURSUANT TO SECTION 4.06
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K
ANNUAL
REPORT
Pursuant
to Section 13 or 15(d) of the
SECURITIES
EXCHANGE ACT OF 1934 (FEE REQUIRED)
FOR
FISCAL YEAR ENDED ________________
COMMISSION
FILE NUMBER: 333-_______
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
(as
depositor under the Pooling and Servicing Agreement,
dated
as
of November 1, 2006, providing for the issuance of
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-HE4)
Mortgage
Asset Securitization Transactions, Inc.
(EXACT
NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
|
Delaware
|
[__]
|
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(I.R.S.
Employer
Identification
No.)
|
|
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
10019
|
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
|
Registrant's
telephone number, including area code: [___]
Securities
registered pursuant to Section 12(b) of the Act:
None
Securities
registered pursuant to Section 12(g) of the Act:
None
Indicate
whether the Registrant: (1) has filed all reports required to be
filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding
12 months (or for such shorter period that the registrant was required
to file
such reports), and (2) has been subject to such filing requirements
for the past
90 days.
X YES
___No
Item
1.
Business:
Not
applicable
Item
2.
Properties:
Not
applicable
Item
3.
Legal Proceedings:
None
Item
4.
Submission of Matters to a Vote of Security-Holders
None
Item
5.
Market for Registrant's Common Equity and Related Stockholder
Matters
To
the
best knowledge of the registrant there is no established public trading
market
for the certificates.
There
are
approximately _____ holders of record as of the end of the reporting
year.
Item
6.
Selected Financial Data.
Not
applicable.
Item
7.
Management's Discussion and Analysis of Financial Condition and Results
of
Operations
Not
applicable
Item
8.
Financial Statements and Supplementary Data.
Not
applicable.
Item
9.
Changes in and Disagreements With Accountants on Accounting and Financial
Disclosure
None
Item
10.
Not
applicable
Item
11.
Executive Compensation
Not
applicable
Item
12.
Security Ownership of Certain Beneficial Owners and Management
Not
applicable
Item
13.
Certain Relationships and Related Transactions
Not
applicable
Item
14.
Exhibits, Financial Statement Schedules, and Reports on Form 8-K
a)
The
company filed on Form 8-K, separately for each distribution date,
the distribution
of funds related to the trust for each of the following
distribution dates:
Distribution
Date Form
8-K Filing Date
_________________
________________
_________________
________________
_________________
________________
b)
99.1
Annual
Report of Independent Public Accountants' as to o master
servicing activities
or servicing activities, as applicable
(a)
▇▇▇▇▇
Fargo Bank, N.A., as Master Servicer
99.2
Annual
Statement of Compliance with obligations under the Pooling and Servicing
Agreement or servicing agreement, as applicable, of:
(a)
▇▇▇▇▇
Fargo Bank, N.A., as Master Servicer
Such
document (i) is not filed herewith since such document was not received
by the
Reporting Person at least three business days prior to the due date
of this
report; and (ii) will be included in an amendment to this report
on Form 10-K/A
to be filed within 30 days of the Reporting Person's receipt of such
document.
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of
1934, the registrant has duly caused this report to be signed on
its behalf by
the undersigned thereunto duly authorized.
Date:
___________
|
Mortgage
Asset Securitization Transactions, Inc., by ▇▇▇▇▇ Fargo
Bank, N.A., as
Trust Administrator for MASTR Asset Backed Securities Trust
2006-HE4,
Mortgage Pass-Through Certificates
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Company:
|
|||
EXHIBIT
I
FORM
OF
LOST NOTE AFFIDAVIT
Loan
#:
____________
BORROWER:
_____________
LOST
NOTE
AFFIDAVIT
I,
as
____________________ of ______________________, a _______________
corporation am
authorized to make this Affidavit on behalf of _____________________
(the
“Seller”). In connection with the administration of the Mortgage Loans held
by
____________________, a _________________ corporation as Seller on
behalf of
Mortgage Asset Securitization Transactions, Inc. (the “Purchaser”),
_____________________ (the “Deponent”), being duly sworn, deposes and says
that:
1.
The
Seller's address
is:
_____________________
_____________________
_____________________
|
2.
|
The
Seller previously delivered to the Purchaser a signed Initial
Certification with respect to such Mortgage and/or Assignment
of
Mortgage;
|
3. Such
Mortgage Note and/or Assignment of Mortgage was assigned or sold
to the
Purchaser by ________________________, a ____________ corporation
pursuant
to the terms and provisions of a Mortgage Loan Purchase Agreement
dated as of
__________ __, _____;
|
4.
|
Such
Mortgage Note and/or Assignment of Mortgage is not outstanding
pursuant to
a request for release of Documents;
|
|
5.
|
Aforesaid
Mortgage Note and/or Assignment of Mortgage (the “Original”) has been
lost;
|
|
6.
|
Deponent
has made or caused to be made a diligent search for the
Original and has
been unable to find or recover
same;
|
|
7.
|
The
Seller was the Seller of the Original at the time of the
loss;
and
|
|
8.
|
Deponent
agrees that, if said Original should ever come into Seller's
possession,
custody or power, Seller will immediately and without consideration
surrender the Original to the
Purchaser.
|
|
9.
|
Attached
hereto is a true and correct copy of (i) the Note, endorsed
in blank by
the Mortgagee and (ii) the Mortgage or Deed of Trust (strike
one) which
secures the Note, which Mortgage or Deed of Trust is recorded
in the
county where the property is
located.
|
10. Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless
the
Purchaser, its successors and assigns, against any loss, liability
or damage,
including reasonable attorney's fees, resulting from the unavailability
of any
Notes, including but not limited to any loss, liability or damage
arising from
(i) any false statement contained in this Affidavit, (ii) any claim
of any party
that has already purchased a mortgage loan evidenced by the Lost
Note or any
interest in such mortgage loan, (iii) any claim of any borrower with
respect to
the existence of terms of a mortgage loan evidenced by the Lost Note
on the
related property to the fact that the mortgage loan is not evidenced
by an
original note and (iv) the issuance of a new instrument in lieu thereof
(items
(i) through (iv) above hereinafter referred to as the “Losses”) and (b) if
required by any Rating Agency in connection with placing such Lost
Note into a
Pass-Through Transfer, shall obtain a surety from an insurer acceptable
to the
applicable Rating Agency to cover any Losses with respect to such
Lost
Note.
11. This
Affidavit is intended to be relied upon by the Purchaser, its successors
and
assigns. _____________________, a ______________ corporation represents
and
warrants that is has the authority to perform its obligations under
this
Affidavit of Lost Note.
Executed
this ____ day, of ___________ ______.
|
SELLER
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
On
this
_____ day of ________, _____, before me appeared _________________
to me
personally known, who being duly sworn did say that he is the
_____________________ of ____________________ a ______________ corporation
and
that said Affidavit of Lost Note was signed and sealed on behalf
of such
corporation and said acknowledged this instrument to be the free
act and deed of
said corporation.
Signature:
[Seal]
EXHIBIT
J-1
FORM
CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER
WITH
FORM
10-K
Certification
I,
[identify the certifying individual], certify that:
1. I
have
reviewed this annual report on Form 10-K, and all reports on Form
10-D required
to be filed in respect of the period covered by this report on Form
10-K of
[identify issuing entity] (i.e., the name of the specific deal to
which this
certification relates rather than just the name of the Depositor)]
(the
“Exchange Act periodic reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole,
do not
contain any untrue statement of a material fact or omit to state
a material fact
necessary to make the statements made, in light of the circumstances
under which
such statements were made, not misleading with respect to the period
covered by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information
required
to be provided under Form 10-D for the period covered by this report
is included
in the Exchange Act periodic reports;
4.
I
am
responsible for reviewing the activities performed by the servicer
and based on
my knowledge and the compliance review conducted in preparing the
servicer
compliance statement required in this report under Item 1123 of Regulation
AB,
and except as disclosed in the Exchange Act periodic reports, the
servicer has
fulfilled its obligations under the servicing agreement; and
5. All
of
the reports on assessment of compliance with servicing criteria for
asset-backed
securities and their related attestation reports on assessment of
compliance
with servicing criteria for asset-backed securities required to be
included in
this report in accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to this report,
except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information
provided to me
by the following unaffiliated parties: [_________________].
|
▇▇▇▇▇
FARGO BANK, N.A.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
J-2
FORM
OF
CERTIFICATION TO BE PROVIDED TO MASTER SERVICER BY THE SERVICERS
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Pooling
and Servicing Agreement, dated as of November 1, 2006,
among
Mortgage
Asset Securitization Transactions, Inc., ▇▇▇▇▇ Fargo Bank,
N.A.
as
Master
Servicer, Custodian and Trust Administrator, ▇▇▇▇▇ Fargo
Bank, N.A.
as
Servicer,
Barclays
Capital Real Estate Inc. d/b/a HomEq Servicing as Servicer and
U.S.
Bank National
Association (the “Agreement”)
|
[▇▇▇▇▇
Fargo Bank, N.A.] [Barclays Capital Real Estate Inc. d/b/a HomEq
Servicing],
as
Servicer hereby certifies to the Master Servicer that:
(A) I
have
reviewed the servicer compliance statement of the Company provided
in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered
by the
Company to the Depositor pursuant to the Agreement (collectively,
the “Company
Servicing Information”);
(B) Based
on
my knowledge, the Company Servicing Information, taken as a whole,
does not
contain any untrue statement of a material fact or omit to state
a material fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the
period of
time covered by the Company Servicing Information;
(C) Based
on
my knowledge, all of the Company Servicing Information required to
be provided
by the Company under the Agreement has been provided to the
Depositor;
(D) I
am
responsible for reviewing the activities performed by the Company
as servicer
under the Agreement, and based on my knowledge and the compliance
review
conducted in preparing the Compliance Statement and except as disclosed
in the
Compliance Statement, the Servicing Assessment or the Attestation
Report, the
Company has fulfilled its obligations under the Agreement in all
material
respects; and
(E) The
Compliance Statement required to be delivered by the Company pursuant
to this
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Company and by any Subservicer and Subcontractor
pursuant to the
Agreement, have been provided to the Depositor. Any material instances
of
noncompliance described in such reports have been disclosed to the
Depositor.
Any material instance of noncompliance with the Servicing Criteria
has been
disclosed in such reports.
|
Date:
_________________________
|
|
|
By: _______________________________
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
K
FORM
OF
CAP CONTRACT
|
DATE:
|
November
30, 2006
|
|
|
TO:
|
▇▇▇▇▇
Fargo Bank, N.A. not in its individual capacity but solely
as Trust
Administrator with respect to the MASTR Asset Backed
Securities Trust
2006-HE4, Mortgage Pass Through Certificates, Series
2006-HE4
|
|
|
ATTENTION:
|
Client
Manager - MABS 2006-HE4
|
|
|
TELEPHONE:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
FACSIMILE:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
FROM:
|
Swiss
Re Financial Products Corporation
|
|
|
TELEPHONE:
|
(▇▇▇)
▇▇▇ ▇▇▇▇
|
|
|
FACSIMILE:
|
(▇▇▇)
▇▇▇ ▇▇▇▇
|
|
|
SUBJECT:
|
Fixed
Income Derivatives Confirmation
|
|
|
REFERENCE
NUMBER:
|
1148792
|
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered
into on the
Trade Date specified below (the “Transaction”)
between
Swiss Re Financial Products Corporation (“Party
A”) and
▇▇▇▇▇
Fargo Bank, N.A., not individually, but solely as trust administrator
(the
“Trust Administrator”) with respect to the MASTR Asset Backed Securities Trust
2006-HE4, Mortgage Pass Through Certificates, Series 2006-HE4 (the
“Supplemental
Interest Trust”) (“Party
B”)
created
under the Pooling and Servicing Agreement, dated as of November 1,
2006, among
Mortgage Asset Securitization Transactions, Inc., as depositor, ▇▇▇▇▇
Fargo
Bank, N.A., as master servicer and trust administrator, Barclays
Capital Real
Estate Inc. d/b/a HomEq Servicing and ▇▇▇▇▇ Fargo Bank, N.A., as
servicers and
U.S. Bank National Association, as trustee (the
“Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you
and us to
enter into the Transaction on the terms set forth below and replaces
any
previous agreement between us with respect to the subject matter
hereof. This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit
Support
Annex to the Schedule.
|
1.
|
This
Confirmation shall supplement, form a part of, and
be subject to an
agreement in the form of the ISDA Master Agreement
(Multicurrency - Cross
Border) as published and copyrighted in 1992 by the
International Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement
in such form on the
date hereof, with a Schedule as set forth in Item 3
of this Confirmation,
and an ISDA Credit Support Annex (Bilateral Form -
ISDA Agreements Subject
to New York Law Only version) as published and copyrighted
in 1994 by the
International Swaps and Derivatives Association, Inc.,
with Paragraph 13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described
herein shall be the
sole Transaction governed by such ISDA Master Agreement.
In the event of
any inconsistency among any of the following documents,
the relevant
document first listed shall govern: (i) this Confirmation,
exclusive of
the provisions set forth in Item 3 hereof and Annex
A hereto; (ii) the
provisions set forth in Item 3 hereof, which are incorporated
by reference
into the Schedule; (iii) the Credit Support Annex;
(iv) the Definitions;
and (v) the ISDA Master
Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein
reference to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference
herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
|
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
||
|
Type
of Transaction:
|
Interest
Rate Cap
|
||
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth
for such period on
Schedule I attached hereto.
|
||
|
Trade
Date:
|
November
21, 2006
|
||
|
Effective
Date:
|
November
25, 2006
|
||
|
Termination
Date:
|
November
25, 2013 , subject to adjustment in accordance with the
Business Day
Convention; provided, however, that for the purpose of
determining the
final Fixed Rate Payer Period End Date, Termination Date
shall be subject
to No Adjustment.
|
||
|
Fixed
Amount:
|
|||
|
Fixed
Amount Payer:
|
Party
B
|
||
|
Fixed
Amount Payer
|
|||
|
Payment
Date:
|
November
30, 2006
|
||
|
Fixed
Amount:
|
USD
573,000
|
||
|
Floating
Amounts:
|
|||
|
Floating
Rate Payer:
|
Party
A
|
||
|
Floating
Rate Payer
|
|||
|
Period
End Dates:
|
The
25th calendar day of each month during the Term of this
Transaction,
commencing December 25, 2006, and ending on the Termination
Date, subject
to adjustment in accordance with the Business Day
Convention.
|
||
|
Floating
Rate Payer
|
|||
|
Payment
Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer
Payment Date shall be
one Business Day prior to each Floating Rate Payer Period
End
Date.
|
||
|
Cap
Rate:
|
5.4000%
|
||
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
||
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
|
||
|
The
greater of (i) 250*(Floating Rate Option - Cap Rate)*Notional
Amount*Floating Rate Day Count Fraction, and (ii) zero.
|
|||
|
Designated
Maturity:
|
One
month ; provided that, with respect to the first Calculation
Period,
Linear Interpolation will apply
|
||
|
Floating
Rate Day
|
|||
|
Count
Fraction:
|
Actual/360
|
||
|
Reset
Dates:
|
The
first day of each Calculation Period.
|
||
|
Compounding:
|
Inapplicable
|
||
|
Business
Days:
|
New
York
|
||
|
Business
Day Convention:
|
Modified
Following
|
||
|
Calculation
Agent:
|
Party
A
|
||
|
3.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
|
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific
party means
that upon the occurrence of such an Event of Default with respect
to such party,
the other party shall have the rights of a Non-defaulting Party under
Section 6
of this Agreement; conversely, the statement below that such event
will not
apply to a specific party means that the other party shall not have
such
rights.
| (i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and
will apply to
Party B; provided, however, that Section 5(a)(i) is hereby
amended by
replacing the word “third” with the word “first”; provided, further, that
notwithstanding anything to the contrary in Section 5(a)(i),
any failure
by Party A to comply with or perform any obligation to
be complied with or
performed by Party A under the Credit Support Annex shall
not constitute
an Event of Default under Section 5(a)(i) unless (A) a
Required Ratings Downgrade Event has occurred and been
continuing for 30
or more Local Business Days, and (B) such failure is not
remedied on or
before the third Local Business Day after notice of such
failure is given
to Party A.
|
| (ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and
will not apply to
Party B.
|
| (iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and
will not apply
to Party B except that Section 5(a)(iii)(1) will apply
to Party B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding
anything to the
contrary in Section 5(a)(iii)(1), any failure by Party
A to comply with or
perform any obligation to be complied with or performed
by Party A under
the Credit Support Annex shall not constitute an Event
of Default under
Section 5(a)(iii) unless (A) a
Required Ratings Downgrade Event has occurred and been
continuing for 30
or more Local Business Days, and (B) such failure is not
remedied on or
before the third Local Business Day after notice of such
failure is given
to Party A.
|
| (iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and
will not apply to
Party B.
|
| (v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and
will not apply to
Party B.
|
| (vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and
will not apply to
Party B. For purposes of Section 5(a)(vi), solely with
respect to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14, except that such
term shall not include insurance contracts entered into in the ordinary
course
of Party A’s Credit Support Provider’s insurance business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%)
of
the Shareholders’ Equity of Party A or, if applicable, the Eligible Guarantor.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in
the
most recent annual audited financial statements of such entity) of
(i) its
capital stock (including preferred stock) outstanding, taken at par
value, (ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury
stock,
each to be determined in accordance with generally accepted accounting
principles.
| (vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and
will apply to
Party B except that the provisions of Section 5(a)(vii)(2),
(6) (to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any
appointment to
which Party B has not become subject), (7) and (9) will
not apply to Party
B; provided that, with respect to Party B only, Section
5(a)(vii)(4) is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented
by Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
|
| (viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A
and will apply to
Party B.
|
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific
party means
that upon the occurrence of such a Termination Event, if such specific
party is
the Affected Party with respect to a Tax Event, the Burdened Party
with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected
Party
with respect to a Credit Event Upon Merger, as the case may be, such
specific
party shall have the right to designate an Early Termination Date
in accordance
with Section 6 of this Agreement; conversely, the statement below
that such an
event will not apply to a specific party means that such party shall
not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall
have the
right to designate an Early Termination Date in accordance with Section
6 of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply
to Party
B.
|
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A except
that, for
purposes of the application of Section 5(b)(ii) to Party
A, Section
5(b)(ii) is hereby amended by deleting the words “(x) any action taken by
a taxing authority, or brought in a court of competent
jurisdiction, on or
after the date on which a Transaction is entered into (regardless
of
whether such action is taken or brought with respect to
a party to this
Agreement) or (y)”, and the “Tax
Event”
provisions of Section 5(b)(ii) will apply to Party B.
|
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and
will apply to
Party B, provided that Party A shall not be entitled to
designate an Early
Termination Date by reason of a Tax Event upon Merger in
respect of which
it is the Affected Party.
|
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party
A and will not
apply to Party B.
|
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and
will not apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
| (i) |
Market
Quotation will apply, provided, however, that, in the event
of a
Derivative Provider Trigger Event, the following provisions
will
apply:
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted
in its
entirety and replaced with the
following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer
which is (1)
made by a Reference Market-maker that is an Eligible Replacement,
(2) for an
amount that would be paid to Party B (expressed as a negative number)
or by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (3) made on the basis that Unpaid Amounts in respect
of the
Terminated Transaction or group of Transactions are to be excluded
but, without
limitation, any payment or delivery that would, but for the relevant
Early
Termination Date, have been required (assuming satisfaction of each
applicable
condition precedent) after that Early Termination Date is to be included.
|
(B)
|
The
definition of Settlement Amount shall be deleted in its
entirety and
replaced with the following:
|
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined
by Party B)
equal to:
|
(a)
|
If
a Market Quotation for the relevant Terminated Transaction
or group of
Terminated Transactions is accepted by Party B so as to
become legally
binding on or before the day falling ten Local Business
Days after the day
on which the Early Termination Date is designated, or such
later day as
Party B may specify in writing to Party A, but in either
case no later
than one Local Business Day prior to the Early Termination
Date (such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or
negative) of such
Market Quotation;
|
|
(b)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated
Transactions
has been accepted by Party B so as to become legally binding
and one or
more Market Quotations from
Approved Replacements have
been made and remain capable of becoming legally binding
upon acceptance,
the Settlement Amount shall equal the Termination Currency
Equivalent of
the amount (whether positive or negative) of the lowest
of such Market
Quotations (for the avoidance of doubt, the lowest of such
Market
Quotations shall be the lowest Market Quotation of
such Market Quotations
expressed as a positive number or, if any of such Market
Quotations is
expressed as a negative number, the Market Quotation expressed
as a
negative number with the largest absolute value);
or
|
|
(c)
|
If,
on the Latest Settlement Amount Determination Day, no Market
Quotation for
the relevant Terminated Transaction or group of Terminated
Transactions is
accepted by Party B so as to become legally binding and
no Market
Quotation from an Approved Replacement remains capable
of becoming legally
binding upon acceptance, the Settlement Amount shall equal
Party B’s Loss
(whether positive or negative and without reference to
any Unpaid Amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
|
|
(C)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest
Settlement
Amount Determination Day.
|
|
(D)
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If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
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“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to
Party A an
amount equal to the absolute value of the Settlement Amount in respect
of the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III)
Party A
shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts
owing to Party B; provided, however, that (x) the amounts payable
under the
immediately preceding clauses (II) and (III) shall be subject to
netting in
accordance with Section 2(c) of this Agreement and (y) notwithstanding
any other
provision of this Agreement, any amount payable by Party A under
the immediately
preceding clause (III) shall not be netted-off against any amount
payable by
Party B under the immediately preceding clause (I).”
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(E)
|
At
any time on or before the Latest Settlement Amount Determination Day at
which two or more Market Quotations from Approved Replacements
remain
capable of becoming legally binding upon acceptance, Party
B shall be
entitled to accept only the lowest of such Market Quotations
(for the
avoidance of doubt, the lowest of such Market Quotations
shall be the
lowest Market Quotation of such Market Quotations expressed
as a positive
number or, if any of such Market Quotations is expressed
as a negative
number, the Market Quotation expressed as a negative number
with the
largest absolute value).
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| (ii) |
The
Second Method will apply.
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(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
|
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any
relevant
governmental revenue authority, of any Relevant Jurisdiction to make
any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement)
to be made
by it to the other party under this Agreement. In making this representation,
it
may rely on: the accuracy of any representations made by the other
party
pursuant to Section 3(f) of this Agreement; (ii) the satisfaction
of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement
and the
accuracy and effectiveness of any document provided by the other
party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the
satisfaction of
the agreement of the other party contained in Section 4(d) of this
Agreement,
provided that it shall not be a breach of this representation where
reliance is
placed on clause (ii) and the other party does not deliver a form
or document
under Section 4(a)(iii) by reason of material prejudice to its legal
or
commercial position.
(B)
Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
represents that it is a corporation organized under the laws of the
State of
Delaware.